Retrial After Acquittal – New Scientific Evidence
The court heard an application for the quashing of a verdict of not guilty and the retrial of a defendant for the murder of Stephen Lawrence in 1993. Other defendants previously acquitted were not to be tried, but a defendant not previously tried now awaited trial. Here, it was said that new scientific evidence not previously available linking the acquitted defendant to the crime scene, but no more.
Held: D’s acquittal should be quashed, and he should be retried along with the new defendant. The court considered the test for the admission of such new evidence and the quashing of an acquittal: ‘the legislative structure does not suggest that availability of a realistic defence argument which may serve to undermine the reliability or probative value of the new evidence must, of itself, preclude an order quashing the acquittal. It must, of course, be carefully analysed, and given its proper weight. If the argument, or indeed any defence evidence, leads the court to conclude that the new evidence is not, after all, as reliable or substantial as it was thought to be, or that it no longer appears to be highly probative of guilt, then the court cannot be satisfied that the statutory test has been met. That is a fact specific decision. In the end, there are three defined elements: provided the new evidence is reliable, substantial, and appears to be highly probative, for the purposes of section 78 it is compelling: otherwise it is not.’
The second test is that any such orders should be in the interests of justice: ‘The interests of justice test requires attention to be focussed on the express statutory criteria provided in section 79, but these criteria, although wide ranging, are not exhaustive. They are partly directed to events during the original investigative and trial process, a requirement designed to avoid delay in the administration of justice as well as inefficiency and lack of direction which might result from a perception that what we shall describe as a second bite of the cherry may eventually become available to the prosecution. Thus if the new evidence relied on by the prosecution would have been revealed for use at the first trial by a competent investigative and/or prosecutorial process, then the interests of justice may, on this ground alone, lead to the application being refused. The interests of justice have also to be addressed in the context of the date when any new trial may take place, with particular emphasis on any failure of due diligence or expedition since the original trial and on the impact of any delay (whether culpable or not) on the fairness of the proposed second trial. However compelling the new evidence may be, it is elementary that any second trial should be a fair one. For this purpose the court will examine all the known facts, and consider any material drawn to its attention on behalf of the potential defendant, including any potentially prejudicial publicity attracted by the case, which may make it ‘unlikely’ that a fair trial can take place.’
Judge LCJ, Rafferty, Holroyde JJ
[2011] EWCA Crim 1256, [2011] 1 WLR 3230
Bailii, CaTJ
Criminal Justice Act 2003 78 79
England and Wales
Citing:
Cited – G(G) and B(S), Regina v CACD 12-Jun-2009
An application was made for the quashing of two acquittals for murder and for a retrial.
Held: It would take only compelling new evidence of guilt to justify the quashing of an acquittal. The evidence of a witness who was ready to say whatever . .
Cited by:
See Also – Regina v Dobson and Norris CCC 4-Jan-2012
CCC (Central Criminal Court) The Offence
The murder of Stephen Lawrence on the night of 22nd April 1993 was a terrible and evil crime. Recently the Lord Chief Justice described it as a ‘murder which scarred . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice
Leading Case
Updated: 11 November 2021; Ref: scu.439831
