Criminal Justice Act 2003, section 76

Application to Court of Appeal

Part 10 Retrial for serious offences

(1)A prosecutor may apply to the Court of Appeal for an order—

(a)quashing a person’s acquittal in proceedings within section 75(1), and

(b)ordering him to be retried for the qualifying offence.

(2)A prosecutor may apply to the Court of Appeal, in the case of a person acquitted elsewhere than in the United Kingdom, for—

(a)a determination whether the acquittal is a bar to the person being tried in England and Wales for the qualifying offence, and

(b)if it is, an order that the acquittal is not to be a bar.

(3)A prosecutor may make an application under subsection (1) or (2) only with the written consent of the Director of Public Prosecutions.

(4)The Director of Public Prosecutions may give his consent only if satisfied that—

(a)there is evidence as respects which the requirements of section 78 appear to be met,

(b)it is in the public interest for the application to proceed, and

(c)any trial pursuant to an order on the application would not be inconsistent with obligations of the United Kingdom under [F124Article 31 or 34 of the Treaty on European Union (as it had effect before 1 December 2009) or Article 82, 83 or 85 of the Treaty on the Functioning of the European UnionF124] relating to the principle of ne bis in idem.

(5)Not more than one application may be made under subsection (1) or (2) in relation to an acquittal.

Definitions used in section 76 4

prosecutor

“prosecutor” means an individual or body charged with duties to conduct criminal prosecutions,

Defined in s.95(1) · see it in the full Act
the court

(2) In relation to such an application or reference, any reference to “the court” in section 269(2) to (5) and Schedule 21 is to be read as a reference to the High Court.

Defined in Sch.22 para.11(2) · see it in the full Act
acquittal

“acquittal” and related expressions are to be read in accordance with section 75(7),

Defined in s.95(1) · see it in the full Act
qualifying offence

“qualifying offence” has the meaning given by section 75(8).

Defined in s.95(1) · see it in the full Act

(8) In this Part “qualifying offence” means an offence listed in Part 1 of Schedule 5.

Defined in s.75(8) · see it in the full Act

Cases considering section 76 16

Bishop, R. v

[2018] EWCA Crim 27 · 23 January 2018

Section 76 supplied the statutory route for the Crown’s application to set aside an acquittal. The court applied that scheme after finding the requirements in sections 78 and 79 satisfied. (see paras [94]; [178]) The court exercised the power arising from the prosecutor’s section 76(1) application after determining that the statutory conditions were met. (see paras [2]; [179]) The court treated the one-application limit as a relevant reason why the prosecution could properly seek to assemble the strongest available evidence before applying. (see paras [96]; [152]; [176])

G(G) and B(S), R. v

[2009] EWCA Crim 1077 · 12 June 2009

The Court treated section 76 as permitting the requested order only where the statutory conditions concerning compelling evidence and the interests of justice were met. It refused the order because the evidence was not compelling. (see paras [3]; [11])

G(G) & Anor, R. v

[2009] EWCA Crim 1207 · 12 June 2009

The Court applied the section 76 power as requiring both new and compelling evidence and an order in the interests of justice. As the evidence was not compelling, the application to quash the acquittals was refused. (see paras [3]; [11])

What each judgment says about section 76 is in the case-law panel in the full Act.

Explanatory note

314.Section 76 allows a prosecutor to apply to the Court of Appeal for an order which quashes the person’s acquittal and orders him to be retried for the qualifying offence. A “prosecutor” means a person or body responsible for bringing public prosecutions, such as the Crown Prosecution Service or HM Customs and Excise. Where a person has been acquitted outside the United Kingdom the Court will need to consider whether or not the acquittal would act as a bar to a further trial here and, if it does, the Court can order that it must not be a bar.

315.Applications to the Court of Appeal require the personal written consent of the Director of Public Prosecutions (DPP). This provides a safeguard to ensure that only those cases in which there is sufficient evidence are referred to the Court of Appeal. The DPP will also consider whether it is in the public interest to proceed. This section also recognises any international obligations arising under the Treaty of the European Union, under which negotiations are taking place to support the mutual recognition of the decisions of the courts in other EU member states.

316.Applications may also be brought by public prosecuting authorities if new evidence arises in cases which have previously been tried by means of a private prosecution.

317.Only one application for an acquittal to be quashed may be made in relation to any acquittal.

All the explanatory notes for the Act

Amendments and notes

2 notes from legislation.gov.uk

Amendments

  1. F124Words in s. 76(4)(c) substituted (1.8.2012) by The Treaty of Lisbon (Changes in Terminology or Numbering) Order 2012 (S.I. 2012/1809), art. 2(1), Sch. Pt. 1 (with art. 2(2))

Commencement

  1. I50S. 76 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to art. 2(2), Sch. 2)