R v Robert Rhodes

For an application to quash an acquittal under the Criminal Justice Act 2003, evidence is compelling when it is reliable, substantial and highly probative in the context of the outstanding issues. It need not be conclusive or irresistible, and a realistic defence challenge does not itself prevent an order. The court must not usurp the jury’s function. The interests-of-justice question is evaluative. Evidential gaps and lost material do not necessarily make a fair retrial unlikely where the trial process can address them through the burden and standard of proof, proper directions and the prohibition on speculation.

The prosecution applied under the Criminal Justice Act 2003 to quash the respondent’s 2017 acquittal of murder and obtain a retrial. The application followed materially changed ABE accounts given by the respondent’s child, who had provided evidence at the original trial but did not give oral evidence. The central questions were whether the later accounts were new and compelling evidence under section 78, particularly whether they were reliable, substantial and highly probative, and whether a retrial was in the interests of justice under section 79 despite the passage of time and unavailable evidence.

The Court of Appeal granted the application, quashed the acquittal and ordered a retrial on an indictment containing five counts, including murder.

1. Statutory framework. Sections 75 to 79 of the Criminal Justice Act 2003 created a mandatory scheme. If the requirements concerning new and compelling evidence and the interests of justice were met, the court had to quash the acquittal and order a retrial.
2. New and compelling evidence. The court applied the approach in R v Dobson [2011] EWCA Crim 1256. Evidence need not be irresistible, conclusive or unanswerable. The court must not usurp the jury’s function. A realistic defence argument capable of undermining reliability or probative value must be analysed and given proper weight, but does not itself prevent an order. The assessment is fact-specific. The approach was also applied consistently with R v Bishop [2018] EWCA Crim 27; [2019] 1 W.L.R. 2489.
3. Reliability. The child’s admission of moral responsibility for involvement in the killing was a remarkable circumstance supporting reliability. The consistency of the earlier accounts did not itself establish their accuracy. Later changes, including accepting greater knowledge of the plan, did not undermine reliability. Expert evidence concerning the injury to the respondent’s back raised a realistic defence argument, but the point was not determinative when the evidence was considered in the round. The court distinguished R v (G), B (S) [2009] EWCA Crim 1207, which involved a manipulative convicted accomplice with a motive to incriminate others.
4. Interests of justice. The section 79(2)(a) question was an evaluative exercise. Abuse-of-process principles provided an analogy, but their burden of proof was inapt. The court had to consider whether the trial process could accommodate unavailable evidence. The loss of forensic material and the absence of the mobile telephone did not make a fair trial unlikely. The defence could rely on those gaps, while directions on the burden and standard of proof and against speculation would protect the respondent. The approach was supported by R v Watson [2023] EWCA Crim 1016.
5. Orders. The respondent was to be arraigned within two months. Publication restrictions were continued until the conclusion of the retrial or further order, and an order was made prohibiting publication of material likely to identify the child witness.

• Court of Appeal (Criminal Division): In [2024] EWCA Crim 1411, the prosecution application was granted. The acquittal was quashed and a retrial on five counts, including murder, was ordered.
• Central Criminal Court: On 29 May 2017, the respondent was acquitted of murder.