Trial - Retrial - Application to quash acquittal of acquitted person and for retrial
R v B: CA (Crim Div) (Lord Chief Justice Lord Judge, Mrs Justice Macur, Mr Justice Saunders): 29 February 2012
Section 78(2) of the Criminal Justice Act 2003 provides: ‘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).’
The trial of the offences involving the victim began in June 1999. At the outset, it was submitted to the trial judge on behalf of the accused person, B, that the proceedings should be stayed as an abuse of process or that evidence of a DNA match (the evidence) should be excluded in accordance with the discretionary provisions in section 78 of the Police and Criminal Evidence Act 1984.
The judge acceded to that submission and held that the evidence should be excluded. As the relevant provisions of the 1984 act had not been complied with, the prosecution ought not to be permitted to use that material. The judge further held that, if he had been wrong in his conclusion based on the construction of the 1984 act, the evidence would also have been excluded under section 78 of the 1984 act. As a result, the prosecution were left with no alternative but to offer no evidence and the judge stated that, on the basis of his ruling (the ruling), the matter could not go forward. In 1999, it was not open to the prosecution to appeal against the ruling. Instead, the ruling was challenged on a point of law by way of a reference by the attorney general pursuant to section 36 of the Criminal Justice Act 1972.
The House of Lords concluded that the decision of the judge had been wrong and that the statute did not provide that evidence obtained in consequence of a breach of the statutory provisions in the 1984 act was inadmissible. Notwithstanding the ruling that the evidence would have been admissible as a matter of law, the case was at an end. The prosecution subsequently applied to the Court of Appeal, under section 76 of the Criminal Justice Act 2003 for the acquittal to be quashed and for a re-trial to be ordered.
The issue that fell to be determined was whether the evidence could be described as ‘new’ in the context of, and for the purposes of, section 78(2) of the 2003 act. Consideration was given, inter alia, to sections 75 to 79 of the 2003 act.
The court ruled: For the purposes of sections 75 to 79 of the 2003 act, the word ‘proceedings’ was designed to cover the entire process which had resulted in the original acquittal. However, as a matter of statutory construction, it did not follow that all evidence which had been available to be deployed in the earlier proceedings had to fall outside the ambit of the ‘new’ evidence provision on which section 76 applications had to be based. Subject to the interests of justice requirement found in section 79, evidence which had been available to be used, but which had not been used, could be ‘new’ evidence for the purposes of section 78(2). The mere fact that evidence had been available at the original trial did not mean that it had been adduced in those proceedings (see ,  of the judgment).
The contents of parliamentary debates on the issues were entirely consistent with that interpretation of the statutory provision. It was clear that the language of clause 65(2) of the original bill (the predecessor to section 78(2) of the 2003 act), to the effect that, where at the original trial evidence had been available in the broad sense, it should not be treated as new evidence, had been deliberately amended to the current position which was that, whether or not it had been available, it was new evidence if it had not been adduced in the proceedings (see ,  of the judgment).
On the facts, the evidence which had been excluded by the judge constituted new evidence for the purposes of section 78(2) of the 2003 act on the basis that it had never been adduced in or brought forward for consideration as admissible evidence at the original trial. Once the judge had ruled that the evidence should not be admitted at B’s trial, notwithstanding that it had been available for his consideration and that he had considered it, it had not been adduced in the proceedings (see ,  of the judgment).
Kieran Coonan QC and James Leonard (instructed by Shaw Graham Kersh Solicitors) for B; Alison Levitt QC and Catherine Moore (instructed by the Crown Prosecution Service) for the Crown.