Bishop, R. v

Under Criminal Justice Act 2003, s 78, evidence is compelling where it is reliable, substantial and highly probative of the case against an acquitted person. It need not be conclusive or immune from a realistic defence challenge. Such challenges must be assessed but ordinarily remain matters for the jury at any retrial.

Under s 79, the interests-of-justice factors are non-exhaustive and have no hierarchy. Delay alone is not an absolute bar. A retrial must not be ordered unless it can be fair, but fairness may be secured through disclosure, judicial control of evidence and directions. Due diligence is assessed objectively by reference to what was professionally appropriate at the time, rather than by hindsight.

In 1987, Russell Bishop was acquitted at Lewes Crown Court of the murders of Nicola Fellows and Karen Hadaway. The Crown, with the Director of Public Prosecutions’ consent, applied under Criminal Justice Act 2003, s 76 to quash the acquittals and order a retrial.

The application relied principally on later forensic work, including DNA, fibres, hairs and paint, said to connect Bishop, the children and a Pinto sweatshirt. It also relied on Bishop’s 1990 convictions for attempted murder, kidnapping and indecent assault on another child in circumstances said to be strikingly similar.

The issues were whether the evidence was new and compelling under s 78, and whether a retrial was in the interests of justice under s 79 despite the elapsed time, alleged forensic shortcomings and asserted obstacles to a fair trial.

1. Application granted. The court quashed both acquittals and ordered Bishop’s retrial for murder under Criminal Justice Act 2003, ss 76 and 77.

2. The new scientific evidence satisfied s 78. The DNA, fibre, hair and paint evidence was reliable, substantial and highly probative when assessed together, in the context of the evidence available at the 1987 trial and the subsequent convictions. Contamination arguments did not prevent that conclusion. They were matters capable of being tested before a jury. Applying R v Dobson [2011] EWCA Crim 1256, compelling evidence need not be irresistible or unanswerable.

3. The 1990 convictions independently amounted to new and compelling evidence. Their similarities to the charged murders made them substantial and highly probative. They were likely to be admissible as propensity evidence under ss 101(1)(d) and 103, although admissibility and weight remained for the trial judge and jury. The court cautioned that a subsequent conviction alone would not ordinarily justify an application; each case depends on its facts.

4. The requirements of s 79 were also met. Its specified factors are non-exhaustive and do not have an enhanced or hierarchical status. Delay alone is not an absolute bar, but a retrial ought never to be ordered unless it can be fair. Here the available contemporaneous material, disclosure, evidential safeguards and appropriate directions could secure a fair trial. The defence was not entitled to require the Crown to present the case in precisely the way it had done in 1987.

5. There had been no lack of due diligence or expedition. The question was whether the forensic steps taken at each stage were professionally appropriate at that time, not whether later-developed testing could theoretically have been undertaken earlier. The prosecution had one statutory opportunity to seek a retrial and was entitled to await a sufficiently compelling body of evidence.

The court therefore ordered a retrial, leaving the ultimate assessment of guilt to a jury.

• Court of Appeal (Criminal Division) — On the Crown’s application under the Criminal Justice Act 2003, the court quashed the 1987 acquittals and ordered a retrial: [2018] EWCA Crim 27.
• Crown Court at Lewes — Bishop was acquitted on 10 December 1987 of the murders of Nicola Fellows and Karen Hadaway.