(1)The requirements of this section are met if there is new and compelling evidence against the acquitted person in relation to the qualifying offence.
(2)Evidence is new if it was not adduced in the proceedings in which the person was acquitted (nor, if those were appeal proceedings, in earlier proceedings to which the appeal related).
(3)Evidence is compelling if—
(a)it is reliable,
(b)it is substantial, and
(c)in the context of the outstanding issues, it appears highly probative of the case against the acquitted person.
(4)The outstanding issues are the issues in dispute in the proceedings in which the person was acquitted and, if those were appeal proceedings, any other issues remaining in dispute from earlier proceedings to which the appeal related.
(5)For the purposes of this section, it is irrelevant whether any evidence would have been admissible in earlier proceedings against the acquitted person.
Cases considering section 78 19
[2024] EWCA Crim 1411 · 25 November 2024Interprets
Interpreted and applied the test for new and compelling evidence. Reliability, substantiality and high probative value in context were required, and the court found the later accounts met that test. (see paras [10]-[12]; [28]-[29])
Applied the newness requirement to the later ABE interviews, which had not been adduced at the original trial. (see paras [6]; [20])
Applied the statutory definition of compelling evidence through its three cumulative qualities: reliable, substantial and highly probative in context. (see paras [10]-[12]; [29])
Applied the reliability limb by assessing the changed accounts, admissions, inconsistencies and expert challenge in the round. It found the evidence reliable. (see paras [25]-[29])
Applied the substantiality limb and found the later accounts sufficiently substantial when considered with the surrounding evidence. (see para [29])
Applied the high-probative-value limb in the context of the outstanding issues and found the evidence compelling against the acquitted person. (see paras [10]-[12]; [29])
[2018] EWCA Crim 27 · 23 January 2018
The court treated section 78 as the gateway requiring new and compelling evidence before an acquittal could be quashed. It held that both the scientific evidence and the subsequent convictions passed that gateway. (see paras [130]; [136]; [138])
The court held that the new scientific evidence and the subsequent convictions each amounted to new and compelling evidence in relation to the qualifying offences. (see paras [130]; [133]; [136]; [138])
The court applied the requirement that evidence be new because it was not adduced at the acquittal proceedings. The DNA techniques and resulting evidence had not been available at the 1987 trial. (see paras [119]; [156]-[159])
The court held the scientific evidence reliable, substantial and highly probative, notwithstanding contamination challenges. The subsequent convictions were likewise reliable, substantial and highly probative. (see paras [130]; [136]; [138])
[2015] EWCA Crim 585 · 12 June 2015Interprets
The court treated section 78 as supplying the complete statutory test for new and compelling evidence, without additional glosses such as an overwhelming-evidence requirement. (see paras [45]-[46]; [51])
The court applied the definition of new evidence and held that the DNA evidence was new because it had not been adduced at the original trial. (see paras [32]; [49]; [51])
The court applied each defined element of compelling evidence. The DNA evidence was reliable, substantial and, in the context of the outstanding issues, highly probative; it did not have to be overwhelming. (see paras [46]; [49]-[51])
- B, R. v[2012] EWCA Crim 414 · 29 February 2012
- Dobson, R v[2011] EWCA Crim 1255 · 18 May 2011
- Dobson, R v[2011] EWCA Crim 1256 · 18 May 2011
- Weston, R v[2010] EWCA Crim 1576 · 8 July 2010
- Maxwell & Anor v R.[2009] EWCA Crim 2552 · 1 December 2009
- G(G) and B(S), R. v[2009] EWCA Crim 1077 · 12 June 2009
- G(G) & Anor, R. v[2009] EWCA Crim 1207 · 12 June 2009
- B(J), R. v[2009] EWCA Crim 1036 · 14 May 2009
- A, R v[2008] EWCA Crim 2908 · 1 December 2008
- Miell, R v[2007] EWCA Crim 3130 · 21 December 2007
- D, R. v[2006] EWCA Crim 1354 · 16 June 2006
- Attorney-General's Reference No. 3 of 1999: Application by the British Broadcasting corporation to set aside or vary a Reporting Restriction Order[2009] UKHL 34 · 17 June 2009
- Reilly, R v[2017] EWCA Crim 1333 · 7 September 2017
- Phillips v R.[2011] EWCA Crim 2935 · 21 December 2011
- Secretary of State for Work and Pensions v MB (JSA)[2016] UKUT 372 (AAC) · 5 August 2016
- Secretary of State for the Home Department v AY[2010] EWHC 1860 (Admin) · 26 July 2010
What each judgment says about section 78 is in the case-law panel in the full Act.
320.Section 78 sets out the requirement for there to be new and compelling evidence against the acquitted person in relation to the qualifying offence, and defines evidence which is “new and compelling”. Evidence is “new” if it was not adduced at the original trial of the acquitted person. Evidence is “compelling” if the Court considers it to be reliable and substantial and, when considered in the context of the outstanding issues, the evidence appears to be highly probative of the case against the acquitted person. The Court is thus required to make a decision on the strength of the new evidence. So for example, new evidence relating to identification would only be considered “compelling” if the identity of the offender had been at issue in the original trial. It is not intended that relatively minor evidence which might appear to strengthen an earlier case should justify a re-trial.
321.This applies equally to acquittals abroad. In such cases it will be for the prosecution to provide the Court with information relating to the evidence available and the issues in the trial.