Gowans, R v

Where a prosecution for a fatal offence required the Attorney-General’s consent under section 2 of the Law Reform (Year and a Day Rule) Act 1996, the absence of that consent vitiated the whole trial. The resulting conviction and judgment were nullities and had to be set aside and annulled.

The court retained a discretion whether to order a venire de novo. In exercising it, the public interest in trying a properly charged allegation of murder could outweigh substantial delay which was not the defendants’ fault. A retrial should nevertheless not cause unjustified detriment to the defendants’ existing custody or parole position merely because the original proceedings were procedurally invalid.

The appellants had been convicted of murder at the Central Criminal Court in 2001 after the victim, whom they had assaulted and robbed, died months after sustaining a serious head injury. Their appeals against conviction were dismissed by the Full Court in 2003.

Following a reference by the Criminal Cases Review Commission, it emerged that there was no record that the Attorney-General had been asked to consent, or had consented, to the murder prosecution. Consent was required because each appellant had already been convicted of an offence committed in circumstances alleged to be connected with the death.

The Crown accepted the absence of consent. The central issues were whether the convictions were nullities and, if so, whether justice required a new trial.

1. The appeals were allowed. Section 2 of the Law Reform (Year and a Day Rule) Act 1996 made the Attorney-General’s consent a condition for instituting this prosecution. There was no record that consent had been sought or granted, and the Crown did not dispute that conclusion.

2. The absence of the required consent vitiated the entire trial. The court treated R v Angel [1968] 1 WLR 669 and R v Pearce [1981] 72 Cr App R 295 as illustrating the consequence of commencing proceedings without the necessary prosecutorial consent. Following R v Booth (1999) 1 Cr App R 457, it set aside and annulled the convictions and judgments.

3. The court ordered a venire de novo and a retrial for murder. The delay was substantial and was not the appellants’ fault. Nevertheless, the overwhelming public interest required a trial so that those guilty of murder could be convicted and those whose guilt was doubtful could be acquitted. Any new medical evidence disclosed to the prosecution could cause the position to be reconsidered.

4. The retrial was not to alter either appellant’s custody or risk position merely as a consequence of correcting the procedural error. If convicted again, each was to receive proper credit for the minimum term already served, and the Parole Board was to consider the case as if the appeal and retrial had not become necessary.

5. The appellants were ordered to appear before a Crown Court selected by the Presiding Judge for the South Eastern Circuit to plead to the indictment. Reporting was prohibited until the retrial concluded under section 4(2) of the Contempt of Court Act 1981. A defendant’s costs order was also made.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission, allowed the appeals, annulled the convictions and judgments, and ordered a new trial.

• Full Court: On 10 December 2003, dismissed the appellants’ appeals against their murder convictions.

• Central Criminal Court: On 24 August 2001, convicted both appellants of murder and imposed life sentences.