(1)The requirements of this section are met if in all the circumstances it is in the interests of justice for the court to make the order under section 77.
(2)That question is to be determined having regard in particular to—
(a)whether existing circumstances make a fair trial unlikely;
(b)for the purposes of that question and otherwise, the length of time since the qualifying offence was allegedly committed;
(c)whether it is likely that the new evidence would have been adduced in the earlier proceedings against the acquitted person but for a failure by an officer or by a prosecutor to act with due diligence or expedition;
(d)whether, since those proceedings or, if later, since the commencement of this Part, any officer or prosecutor has failed to act with due diligence or expedition.
(3)In subsection (2) references to an officer or prosecutor include references to a person charged with corresponding duties under the law in force elsewhere than in England and Wales.
(4)Where the earlier prosecution was conducted by a person other than a prosecutor, subsection (2)(c) applies in relation to that person as well as in relation to a prosecutor.
Cases considering section 79 13
[2024] EWCA Crim 1411 · 25 November 2024Interprets
Interpreted the interests-of-justice requirement as a separate stage from section 78. The question was whether existing circumstances made a fair trial unlikely, with the trial process’s ability to address evidential gaps remaining relevant. (see paras [10]; [30]-[31])
Applied the requirement that a retrial be in the interests of justice in all the circumstances, despite the presence of compelling evidence. (see para [30])
Interpreted the fair-trial factor as an evaluative question rather than a burden-of-proof exercise. A fair trial remained likely because ordinary trial safeguards could address missing evidence. (see paras [30]-[31])
Took account of the fact that the new account emerged more than five years after the death, but found that timing did not make a fair trial unlikely. (see paras [29]-[30])
[2018] EWCA Crim 27 · 23 January 2018Interprets
The court conducted the overall interests-of-justice assessment required by section 79. It concluded that the statutory factors and the overall merits strongly supported quashing the acquittals and ordering a retrial. (see paras [178]; [179])
The court held that, in all the circumstances, it was in the interests of justice to make the order for a retrial. (see paras [178]; [179])
The factors in section 79(2) are non-exhaustive. They have no priority or hierarchy, although the ability to hold a fair trial is practically critical. (see paras [101]; [105]-[110])
Existing circumstances did not make a fair trial unlikely. Disclosure, judicial control of admissibility and directions could address the consequences of delay and alleged evidential difficulties. (see paras [148]-[151])
The lapse of time was relevant but could not, by itself, operate as an absolute bar to an order for retrial. Its significance depended on its effect on the possibility of a fair trial and the wider interests of justice. (see paras [103]-[107])
The court found no failure of due diligence or expedition that prevented evidence being adduced at the 1987 trial. The later DNA and hair evidence could not then have been obtained, and the work on fibres and paint did not establish actionable failings. (see paras [156]-[167])
The court found no post-proceedings lack of due diligence or expedition. It assessed forensic decisions by the professional knowledge and available techniques at the relevant time, rather than by hindsight. (see paras [168]-[176])
[2017] EWCA Crim 1333 · 7 September 2017
The court held that it was not in the interests of justice to quash the acquittal or order a retrial. Reilly could not meaningfully defend himself and was expected to die before properly prepared proceedings could take place. (see paras [34]; [50]-[53])
The listed matters must be considered but are not exhaustive. The court treated the respondent’s inability to participate, the need for further evidence, and his imminent death as decisive circumstances against a retrial. (see paras [34]; [50]-[53])
Existing circumstances made a fair trial unlikely. Reilly was unfit to plead, unable to instruct lawyers or participate, and could not have a proper and meaningful opportunity to defend himself. (see paras [41]; [50]-[53])
The court took account of the long period since the alleged offence and acquittal. It also considered that properly investigating and preparing a response to the forensic evidence would take months, despite the respondent’s imminent death. (see paras [42]; [52])
- MH, R v[2015] EWCA Crim 585 · 12 June 2015
- 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
- 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
- A, R v[2008] EWCA Crim 2908 · 1 December 2008
- D, R. v[2006] EWCA Crim 1354 · 16 June 2006
- B(J), R. v[2009] EWCA Crim 1036 · 14 May 2009
- Miell, R v[2007] EWCA Crim 3130 · 21 December 2007
What each judgment says about section 79 is in the case-law panel in the full Act.
322.Section 79 sets out the requirement that in all the circumstances it is in the interests of justice for the Court to quash an acquittal and order a re-trial. In determining whether it is in the interests of justice, the Court will consider in particular: whether there are existing factors which make a fair trial unlikely (for example, the extent of adverse publicity about the case); the length of time since the alleged offence was committed; and whether the police and prosecution acted with due diligence and expedition in relation to both the original trial and any new evidence. The Court may take into account any other issues it considers relevant in determining whether a retrial will be in the interests of justice.
323.Both sections 78 and 79 apply where a previous prosecution case may have been led by a private rather than public prosecutor.