(1)On an application under section 76(1), the Court of Appeal—
(a)if satisfied that the requirements of sections 78 and 79 are met, must make the order applied for;
(b)otherwise, must dismiss the application.
(2)Subsections (3) and (4) apply to an application under section 76(2).
(3)Where the Court of Appeal determines that the acquittal is a bar to the person being tried for the qualifying offence, the court—
(a)if satisfied that the requirements of sections 78 and 79 are met, must make the order applied for;
(b)otherwise, must make a declaration to the effect that the acquittal is a bar to the person being tried for the offence.
(4)Where the Court of Appeal determines that the acquittal is not a bar to the person being tried for the qualifying offence, it must make a declaration to that effect.
Cases considering section 77 11
[2015] EWCA Crim 585 · 12 June 2015
The court applied the requirement that it be satisfied both that there was new and compelling evidence and that a retrial was in the interests of justice before making an order. (see paras [32]; [58])
[2010] EWCA Crim 1576 · 8 July 2010
Once satisfied that there was new and compelling evidence and that a retrial was in the interests of justice, the court was required to quash the acquittal and order a retrial. (see paras [42]; [61])
[2008] EWCA Crim 2908 · 1 December 2008Interprets
The court interpreted section 77(1) as mandatory. If the requirements of sections 78 and 79 were met, it had to make the requested order and retained no broad residual discretion to refuse it (see paras [29]; [47]).
What each judgment says about section 77 is in the case-law panel in the full Act.
318.Section 77 sets out the decisions which the Court of Appeal may make in response to an application for an acquittal to be quashed. The Court must make an order quashing an acquittal and ordering a retrial if it considers that the requirements set out in Sections 78 and 79 of the Act are satisfied, namely that there is new and compelling evidence in the case, and that it is in the interests of justice for the order to be made. The Court must dismiss an application where it is not satisfied as to these two factors.
319.Where an acquittal has taken place outside the United Kingdom, the Court must decide whether that acquittal provides a bar to prosecution. A “bar” means that the Court would not allow a further prosecution to proceed. If it does not provide a bar, then the Court must make a declaration to that effect. If the acquittal does provide a bar, then the Court must make an order that the acquittal is not to be a bar to a trial in respect of the qualifying offence, if it is satisfied that, as above, the requirements in Sections 78 and 79 are met. If it is not satisfied, then the Court must make a declaration that the acquittal remains a bar to retrial.