Reilly, R v

Under Part 10 of the Criminal Justice Act 2003, new and compelling evidence does not by itself justify quashing an acquittal. The court must also be satisfied that a retrial is in the interests of justice. That assessment is not confined to the listed statutory matters and must secure a meaningful opportunity for the defendant to defend the case. Where a defendant is unable to participate or give instructions, and imminent death makes further proceedings impracticable and unfair, a retrial should not be ordered despite strong new forensic evidence and the gravity of the alleged offence.

In R v Reilly [2017] EWCA Crim 1333, the prosecutor applied under Part 10 of the Criminal Justice Act 2003 to quash Patrick Reilly’s 1986 acquittal for murder and order a retrial.

The application relied principally on modern DNA evidence from samples taken from the victim. That evidence had not been available at the original trial and was accepted to be new and compelling. Reilly had paranoid schizophrenia, was unfit to plead or stand trial, could not give instructions, and was in the final stages of terminal cancer.

The central issue was whether, notwithstanding the new forensic evidence, quashing the acquittal and ordering a retrial would be in the interests of justice.

1. The application was dismissed. Although the scientific evidence satisfied the requirement of new and compelling evidence under section 78 of the Criminal Justice Act 2003, the separate requirement in section 79 was not met.

2. The statutory description of compelling evidence requires reliability, substance and high probative value in the context of the outstanding issues. It does not impose an additional requirement that the evidence be overwhelming or unanswerable. The respondent’s concession that the new DNA evidence was compelling was plainly correct.

3. The section 79 factors are mandatory but not exhaustive. The decisive consideration was fairness. Reilly was permanently unable to give instructions, advance a defence or participate in a conventional trial. His death was imminent, while any proper response to the forensic evidence would require further defence investigation and expert evidence over months.

4. A hearing under sections 4 and 4A of the Criminal Procedure (Insanity) Act 1964 could at most determine whether Reilly had done the act charged; it could not result in a conviction. The court reserved, without deciding, whether such a procedure could constitute the retrial contemplated by Part 10 of the 2003 Act.

5. Even recognising the gravity of the alleged murder, the prospective strength of the new evidence and the family’s desire for closure, it would be neither fair nor in the interests of justice to quash the acquittal. A defendant must have a proper and meaningful opportunity to defend himself. The court also stated that applications of this kind must not be pursued solely to obtain publicity.

• Court of Appeal (Criminal Division): Dismissed the prosecutor’s application under Part 10 of the Criminal Justice Act 2003 to quash the acquittal and order a retrial.
• Central Criminal Court: The first jury could not agree on the murder count. At the 1986 retrial, Reilly was acquitted. The citation is not stated in the judgment.