Ihab Ashaoui v R

A second retrial after two jury disagreements is not prohibited as a matter of law, but may constitute an abuse of process. The decision requires an informed assessment of the interests of justice, including the defendant’s interests and the public interest in prosecuting serious crime. The power must be exercised with extreme caution. Whether a later trial is a retrial is a question of fact. The court must examine whether it is a further trial of the same defendant on the same key issues, considering the substance and scope of the allegations and evidence. A materially wider conspiracy, involving additional participants, a longer period and substantially different evidence, may amount to a fresh trial rather than a retrial.

The appellant was convicted at Kingston Crown Court, after a third trial, of conspiracy to commit robbery and conspiracy to handle stolen vehicles. He had previously been tried twice. The first trial concerned a two-person conspiracy directed at a single bank robbery, but the jury could not agree on the conspiracy charge. The second trial concerned a wider conspiracy involving several defendants, numerous robberies and conduct over a longer period; the jury again failed to reach verdicts.

Before the third trial, the judge ruled that the second trial had not been a retrial of the first and that the third trial would therefore not be a second retrial. The central issue was whether the third trial should have been stayed as an abuse of the process of the court.

Appeal dismissed. The third trial was a retrial of the second trial, but the second trial was not a retrial of the first.

1. The question whether a later trial is a retrial is one of fact. The relevant inquiry is whether it is a further trial of the same defendant on the same key issues, assessed by reference to the substance and scope of the allegations and evidence.
2. A second retrial after two jury disagreements is not prohibited as a matter of law. However, the jurisdiction must be exercised with extreme caution and only in the small class of cases involving a very serious crime and exceptionally strong evidence. The court must also make an informed and dispassionate assessment of the interests of justice, taking account of both the defendant’s interests and the public interest. Those principles were considered in R v Bell [2010] 1 Cr App Rep 27 and reflected the approach described in R v Bowe.
3. The first trial concerned a closed two-person conspiracy directed at one foiled robbery. The second trial concerned a prolonged and substantially wider enterprise, involving more conspirators, several completed and attempted robberies, reconnaissance and the handling of stolen vehicles. Evidence of the appellant’s hiring of vehicles, telephone communications and money laundering materially enlarged and altered the case against him.
4. The evidence held back from the first trial had been withheld for sound tactical reasons and not in bad faith. That circumstance did not make the later proceedings a retrial. The trial judge had presided over both proceedings and was particularly well placed to assess their substance. Her finding that the second trial was a fresh trial on wider allegations was plainly open to her.
5. The wider trial was not oppressive or unjust. The public interest in the prosecution of serious offences supported allowing it to proceed, and the proceedings were not an abuse of process.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed. The court held that the second trial was not a retrial of the first and that the third trial was not a second retrial or an abuse of process: [2023] EWCA Crim 455.
• Crown Court at Kingston upon Thames: The appellant was convicted after the third trial. Before that trial, the judge ruled that the second trial had been a fresh trial on wider allegations and refused to stay the proceedings.