An acquittal at trial is intended to bring a criminal case to an end. In England and Wales, the rule against double jeopardy generally prevents another trial for the same offence on the same facts. The prosecution cannot demand another opportunity because it disagrees with the verdict.
There are, however, limited routes by which an acquittal can be set aside. Each has legal safeguards, and the defence can challenge both the basis for reopening the case and the fairness of holding another trial.
New and compelling evidence in serious cases
Part 10 of the Criminal Justice Act 2003 permits retrials for specified serious offences following acquittal on indictment, meaning proceedings in the Crown Court. The qualifying offences in Schedule 5 include murder, serious drug offences, rape, kidnapping and a range of sexual offences particularly those involving children under 13 years of age.
Under sections 76 and 77, the prosecution needs the personal written consent of the Director of Public Prosecutions and an order from the Court of Appeal quashing the acquittal and directing a retrial. The Court of Appeal must be satisfied that there is new and compelling evidence and that a retrial is in the interests of justice.
Section 78 defines new evidence as evidence not presented in the original proceedings. It need not have been discovered only after the acquittal. To be compelling, it must be reliable, substantial and highly probative of the prosecution case in the context of the outstanding issues. In practical terms, it must strongly support the allegation on something that mattered at the first trial. You might wish to contrast this position with that of a defendant who seeks to rely on new evidence that was known to his defence team at trial but not relied upon. The Court of Appeal is rarely willing to entertain such evidence!
New forensic findings or a later confession may provide a basis for an application.
How the defence can oppose a retrial
The first question is whether the prosecution has a lawful route to reopen the case. The defence should check that the offence qualifies, the necessary consent exists and the application complies with the statutory limits. Section 76(5) permits only one application in relation to an acquittal.
Assuming that the technical requirements are met, the defence should quickly turn its attention the evidence and to the ‘interests of justice’ test.
The evidence needs close examination. The defence will want to look closely at when this evidence came to be, what it shows, how reliable it is and what evidential issues it claims to resolve. For example, let’s imagine a defendant who has been acquitted of murder but is in prison for other offences when all of a sudden, his cell mate – who is looking for release by the Parole Board – pipes up to report that the defendant confessed to the murder he got away with late one night. The appeal court may well consider that witness lacks credibility and is thus unreliable as he has a lot to gain by showing his new responsible and rehabilitated self to the Parole Board.
One of the most important points for the defence is to look at the issues as they were at trial and see how this new evidence fits into that landscape. It may well be new, it may be reliable, it may be substantial, but does it go to any of the issues that were being fought over in front of the jury? If it doesn’t then it ought not to be considered new and ‘compelling’ evidence.
The defence can show that it was already presented at trial, challenge its reliability or explain why it does not resolve the issues on which the case turned. Independent expert advice may reveal weaknesses in a forensic interpretation or undermine claims about the significance of a new result.
In R v Miell [2007] EWCA Crim 3130, Mr Miell pleaded guilty to perjury in respect of the evidence he gave at his own murder trial in which he was acquitted. The Court of Appeal said that even in that situation, an appeal court deciding whether to quash an acquittal must form its own view of the new evidence and whether it is truly ‘compelling’. The Court of Appeal refused to quash the acquittal pointing out that although the perjury conviction involved a new confession to murder, that confession had been withdrawn and the murder trial jury had already heard a confession from Mr Miell that had itself been withdrawn and which was more compelling than the new confession.
The ‘interest of justice’ test looks at the likelihood of whether a defendant can have a fair trial, especially given the length of time that has passed since the offence was committed. The court – and thus the defence solicitors - should also turn their minds to whether the prosecuting lawyers, if they had acted with due diligence and expedition, at the original trial would have relied upon this new evidence had it been available to them at the time. This brings us to the earlier point that ‘new evidence’ needs only be evidence not relied upon at trial. The interests of justice test shows that such evidence is unlikely to persuade the appeal court to quash an acquittal if there was a good, tactical reason for not using that evidence the first time around. Finally, there should be consideration given to whether there has been undue delay in bringing an application to quash the acquittal.
Criminal Procedure Rule 27.5 requires a defendant wishing to make representations to serve a respondent’s notice on the Registrar and prosecutor within 20 business days after service of the application. An extension can be requested. The response should explain the grounds of opposition and identify supporting material or witnesses needed for the hearing.
It is thus important to move quickly to avoid prejudicing your own position.
Acquittals tainted by interference or intimidation
A separate, and even more limited, power arises from sections 54 and 55 of the Criminal Procedure and Investigations Act 1996. It requires a conviction for a specified administration of justice offence involving interference with or intimidation of a juror, witness or potential witness in proceedings leading to the acquittal. The convicted person need not be the acquitted defendant.
The convicting court must certify a real possibility that, without the interference or intimidation, the acquittal would not have occurred, and that renewed proceedings would not be contrary to the interests of justice. The High Court then decides whether to quash the acquittal.
Section 55 requires the High Court to consider it likely that, without the interference or intimidation, the defendant would not have been acquitted. Renewed proceedings must not be contrary to the interests of justice, the defendant must have a reasonable opportunity to make written representations, and the interference conviction must be expected to stand. The defence can challenge those conditions, including an outstanding appeal against that conviction.
This route can cover magistrates’ court cases and offences outside Schedule 5. It applies to offences alleged to have been committed on or after 15 April 1997.
Challenging an acquittal by magistrates
The prosecution can challenge a magistrates’ court decision as wrong in law or beyond its jurisdiction through section 111 of the Magistrates’ Courts Act 1980. This procedure is called an appeal by case stated. The application must be made within 21 days after the decision.
If the challenge succeeds, the High Court’s powers under section 28A of the Senior Courts Act 1981 include sending the case back for further consideration, which may involve a fresh trial. Judicial review may also be available in appropriate cases involving an unlawful decision or serious procedural defect.
The defence can dispute the alleged legal error, challenge compliance with the applicable procedure and address whether another hearing would be fair. Disagreement with how the magistrates assessed the evidence does not, by itself, establish an error of law.
How Chetwode can help
An application to reopen an acquittal deserves a prompt, detailed response. We can examine the proposed legal basis, obtain the original trial material and challenge the evidence and fairness of a retrial. Contact Chetwode Criminal Defence Solicitors if the police or prosecution seek to revisit a case in which you were found not guilty, so we can protect your position and meet any response deadline.