Leppard, R v

An earlier acquittal is ordinarily irrelevant and inadmissible at a later trial. A narrow exception arises where the credibility of a prosecution witness is in issue and the circumstances of the earlier acquittal compel a clear inference that the earlier jury disbelieved that witness. A speculative account of the earlier jury’s reasoning is insufficient.

An acquittal does not conclusively establish innocence or resolve every issue in the defendant’s favour. Otherwise admissible evidence may be used at a later trial, provided that it does not expose the defendant to double jeopardy, even if it may suggest guilt of an offence of which the defendant was previously acquitted.

The applicant was tried on two counts of rape arising from two short video clips recorded at a party. At his first trial, the jury acquitted him on count 1 but could not agree on count 2.

Count 2 was retried in the Crown Court at Maidstone before His Honour Judge Statman. The prosecution relied on the first clip as background evidence of the complainant’s condition shortly before the sexual activity in the second clip. The judge excluded evidence of the earlier acquittal, and the applicant was convicted of count 2 and sentenced to eight years’ detention in a young offender institution.

The applicant renewed, before the full court, his application for leave to appeal against conviction. The central issue was whether the earlier acquittal was relevant and admissible at the retrial.

1. The renewed application for leave to appeal against conviction was refused. The trial judge was entitled to exclude evidence of the applicant’s acquittal on count 1.

2. The general rule, derived from Hui Chi-Ming v R [1992] 1 AC 34, is that an earlier acquittal is irrelevant and inadmissible because it is no more than evidence of the earlier jury’s opinion. The exception identified in R v Hay (1983) 77 Cr App R 70 applies only where the circumstances necessarily show that the earlier jury disbelieved a prosecution witness whose credibility is material at the later trial.

3. The route by which the first jury reached its verdict was speculative. The acquittal therefore gave rise to no necessary inference either about the complainant’s credibility or about the applicant’s reasonable belief in consent. As R v Colman and Terry [2005] QB 996 confirms, an acquittal is not conclusive proof of innocence and does not resolve all relevant issues in the defendant’s favour.

4. The prosecution could properly adduce the first clip as otherwise admissible background evidence of the complainant’s condition shortly before the second clip. Under R v Z [2000] 2 AC 483, this was permissible although the evidence might lead the retrial jury to a view inconsistent with the earlier acquittal, since the applicant was not exposed to double jeopardy. The judge correctly directed the jury to focus on the sexual activity charged in count 2.

• Court of Appeal (Criminal Division): The full court refused the renewed application for leave to appeal against conviction: [2017] EWCA Crim 369.

• Single judge: Refused the applicant leave to appeal against conviction.

• Crown Court at Maidstone: On the retrial of count 2, the applicant was convicted of rape and later sentenced to eight years’ detention in a young offender institution.

• First trial: The jury acquitted the applicant on count 1 and failed to agree on count 2.