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Retrial of serious offences


Introduction

Part 10 of the Criminal Justice Act 2003 (the 2003 Act) reforms the law relating to double jeopardy, by permitting retrials in respect of a number of very serious offences, where new and compelling evidence has come to light. Previously, the law did not permit a person who has been acquitted or convicted of an offence to be retried for that same offence.

There are two principles arising from the common law which prevent this. The first is known as autrefois acquit and autrefois convict. These principles provide a bar to a trial, in respect of the same offence, of a person who has previously been either acquitted or convicted of that offence. The second arose where the courts considered it an abuse of process for additional charges to be brought, following an acquittal or conviction, for different offences which arose from the same behaviour or facts (there were exceptions to this rule).

The law has been reformed to permit a retrial in cases of serious offences where there has been an acquittal in court, but compelling new evidence has subsequently come to light which indicates that an acquitted person was in fact guilty. Examples of new evidence might include DNA or fingerprint tests, or new witnesses to the offence coming forward.

The measures amend the law in relation to re-investigation of persons acquitted of serious offences in these circumstances, to enable the prosecuting authorities to apply to the Court of Appeal for an acquittal to be quashed, and for a retrial to take place where the Court of Appeal is satisfied that the new evidence is a compelling indication of the acquitted person's guilt.

They provide safeguards aimed at preventing the possible harassment of acquitted persons in cases where there is not genuinely new evidence, by requiring the personal consent of the DPP both to the re-opening of investigations and to the making of an application to the Court of Appeal. The DPP will take into account both the strength of the evidence and the public interest in determining whether a re-investigation or application to the Court is appropriate.

The new procedures apply only in respect of serious offences. They are listed in Part 1 of Schedule 5 of the 2003 Act (see Annex A).

The provisions enable the prosecuting authorities, with the consent of the DPP, to apply to the Court of Appeal for an order quashing the original acquittal and directing a retrial (a "section 77 order").

"A section 77 order" is:

  • an order by the Court of Appeal under section 77(1) (quashing the acquittal and directing that a retrial shall be held); or
  • in the case of foreign acquittals, under section 77(3) (an order which determines that the foreign acquittal is a bar and orders that it shall be or shall not be a bar); or
  • section 77(4) (an order declaring that the foreign acquittal is not a bar to a trial).

With one exception (that an acquittal would not be a bar to the trial of the acquitted person for the qualifying offence), where the DPP's consent is required under Part 10, it must be the personal consent of the DPP. Any prosecutor who receives a request from the police to advise in relation to a case where the defendant was acquitted of a qualifying offence must refer the inquiry to his or her CCP. In case of doubt as to whether Part 10 applies, a prosecutor should refer the inquiry to the CCP.

Where the Court of Appeal quashes an acquittal, a new indictment for the same offence may then be preferred by the prosecuting authorities, and a retrial will follow. The retrial will take account of all the evidence available in the case. The Court of Appeal may refuse to quash an acquittal in cases where the evidence is not new and compelling, or where it is now not considered in the interests of justice to proceed with a retrial.

The CCP (or, where cases originate within the Crime Divisions, the Head of that Division (i,e. Organised Crime, Special Crime and Counter-terrorism) will act as the channel between the police and the DPP.

Generally speaking, close liaison will be needed between the CCP and the ACC/Commander, and they will need to draw up a plan for each case. This will help the CPS to respond to urgent requests if they arise, and to make timely applications to the courts, which should in turn benefit the progress of the investigation and the case as a whole.

The question of communication with the victim, and/or his or her family, or with the wider community will arise at each stage of the case, for example from the time of the re-investigation through to the conclusion of the retrial. For example, if the police are going to take investigative steps, they may consider liasing with the family. If the CPS is not minded to consent to fresh investigative steps, this may require explanation to those affected. Similarly, victims, witnesses and communities may need to be told of a decision to consent, or not to consent, to an application being made to the Court of Appeal for a "section 77 order". It is important that the CPS and the police will need to decide how and when to communicate with the victim and the victim's family as appropriate in each case.

The guidance describes the provisions of Part 10 in detail. It explains the general concepts: the need for the personal consent of the DPP, and "qualifying offence" and offences to which Part 10 applies. There are five annexes. They are:

  • Annex A - the list of qualifying offences;
  • Annex B - procedural guide re arrest and charge by the police;
  • Annex C - procedural guide where there is no arrest or charge by police;
  • Annex D - Criminal Procedure Rules Part 41; and
  • Annex E - Forms.

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General concepts

The consent of the DPP

Where Part 10 of the CJA requires the consent of the DPP, it must be given personally, i.e. not by a prosecutor on the DPP's behalf. Such personal consent is required in two circumstances:

  • To authorise a re-investigation of an acquitted person under section 85; and
  • For a prosecutor to apply to the Court of Appeal to quash the person's acquittal.

There is one exception to this rule. It is contained in section 92 and refers to an action taken under section 85(2)(a). The DPP (or someone on his behalf) may certify that "in his opinion the acquittal would not be a bar to the trial of the acquitted person in England and Wales for the qualifying offence". The reason for such a certification is to remove doubt in unclear cases as to whether a plea of autrefois acquit would succeed. If the DPP certifies that it would not, then the offence in question will not be a "qualifying offence".

Where the DPP's consent must be given personally, the Director may authorise someone to exercise the functions conferred by Part 10 (except section 85(2)(a)) in his absence. The authorisation may be general or it may be specific. The Director has not yet given any authorisation under section 92(3) but he has agreed that if and when he does, he will confer the authorisation on the Director of Casework.

The personal consent of the DPP must be in writing.

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Meaning of "Qualifying offence"

Key to all the provisions and procedure under Part 10 is the concept of a "qualifying offence". The provisions about retrials only apply to qualifying offences.

"Qualifying offences" are listed in Part 1 of Schedule 5 to the CJA. They are listed at [Annex A].

Any reference in the Schedule to an enactment includes a reference to the enactment as enacted and as amended from time to time (Part 3 of Schedule 5 para 52). This means that if, for example, section 1 of the Sexual Offences Act (SOA) 2003 was amended, rape in its amended form would be a qualifying offence by virtue of para 6. But if the SOA 2003 were replaced altogether with a SOA 2010, para 6 would have to be amended to refer to the relevant provision of the new statute because the SOA 2010 would be a new Act, not an amended form of the 2003 Act.

A person is charged under the old offence, not the new. Any criminal charge has to be laid under the law as it stood at the time of the alleged offence, even if repealed, unless any change in the substantive law since that time is expressed to be retrospective (which would almost certainly infringe Article 7).

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Qualifying offences within section 75

Part 10 of the CJA applies where a person has been acquitted of a qualifying offence on conviction in England and Wales, on appeal against a conviction, verdict or finding in proceedings on indictment in England and Wales, or on appeal from a decision on such an appeal section 75(1).

Part 10 also applies where a person has been acquitted outside the UK of an offence if the commission of the offence as alleged would have amounted to or included the commission of a qualifying offence (in the UK or elsewhere) section 75(4).

There are no provisions dealing with qualifying offences in Scotland as criminal justice is a matter for the Scottish Parliament. At present, the law in Scotland has not been changed so that these provisions do not apply to acquittals which takes place in Scotland.

If a person was acquitted of a qualifying offence within section 75(1) then that person is treated as also having been acquitted of any alternative offence which is itself a qualifying offence, i.e. an offence of which he or she could have been convicted in those proceedings because of the offence being charged in the indictment unless:

  • The person was convicted of it;
  • Found not guilty by reason of insanity; or
  • A finding of disability was made and it was also found that the person did the act or made the omission as charged.

Part 10 is retrospective in that it applies to acquittals before and after the commencement of the Act section 75(6).

The rule against double jeopardy is only lifted once in respect of each qualifying offence: even if there is a subsequent discovery of new evidence, the prosecution may not apply for an order quashing the acquittal and seeking a retrial section 75(3).

There is nothing to prevent more than one "section 77 order" being made by the Court of Appeal in relation to the same person, so long as they are not for the same qualifying offence (which includes an offence of which the person could have been convicted on the original indictment).

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Investigative steps under section 85

In general terms, the police are able to re-arrest and question the acquitted person as soon as they have received written consent from the DPP to restart the investigation. They are also then automatically given the power to search the acquitted person, his premises and his vehicles and seize anything in his possession. Indeed, in cases where 'urgent action is necessary' and it is not 'reasonably practicable' to obtain consent beforehand, the police can investigate without consent. The following provisions set out the position in more detail.

By virtue of section 85, where an officer wishes to investigate the commission of a qualifying offence, the officer may not do any of the following without (a) certification from the DPP or (b) written consent to the investigation by the DPP:

  • Arrest or question the acquitted person;
  • Search the acquitted person;
  • Search premises owned or occupied by the acquitted person;
  • Search a vehicle owned by the acquitted person or anything in or on such a vehicle;
  • Seize anything in possession of an acquitted person; or
  • Take fingerprints or a sample from the acquitted person.

However, where those steps need to be taken urgently then section 86 applies (see Urgent Investigative Steps, below in this section). The prohibition applies even if the acquitted person consents to any of these being done. Note that even once the DPP's consent has been obtained to the reinvestigation of a qualifying offence, the acquitted person may not be arrested for the qualifying offence without a warrant from a Justice of the Peace pursuant to section 87(1)(a).

The fact that an officer may be investigating a person in relation to some other offence, including the one of which he or she was acquitted, will not make it permissible to take these prohibited investigative steps in relation to a qualifying offence.

Whether section 85 or 86 applies, the provisions only permit investigative steps in relation to the qualifying offence to which the investigation relates. Therefore, consent or authorisation for steps under section 85 or 86 in relation to one investigation do not permit investigative steps in relation to other qualifying offences.

If the investigative steps to be taken are not on the prohibited list, the officer may take them without the consent of the DPP. Section 85 does not apply to all investigative steps. For example, an officer may speak to witnesses other then the acquitted person irrespective of sections 85 and 86. An officer may also inspect forensic evidence, or compare different forensic pieces of evidence, so long as the officer does not take fingerprints or a sample from the acquitted person. An officer may not, however, question the acquitted person even if he is in custody on another matter and has indicated a willingness to talk about the offence for which he was acquitted.

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Certification section 85(2)(a)

The certification is a written statement of the DPP's opinion that the acquittal would not be a bar to trial in England and Wales for the qualifying offence. Only in these very limited circumstances may the certification be given by someone else on behalf of the DPP section 85(2)(a). Due to the significance of a decision that an acquittal is not a bar to a trial, that decision is to be made by the CCP and the ACC/Commander should make the request to the DPP via the CCP (or Head of Division where applicable). Requests must not be made to Duty Prosecutors, or to any other prosecutor.

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Consent section 85(2)(b)

An application for consent must be made in writing to the DPP via the CCP/Head of Division by an officer who, in the Metropolitan Police Service or the City of London police, is a Commander or above, or, in any other force, is an Assistant Chief Constable (ACC).

An "officer" includes an officer of Customs and Excise. As regards officers in Customs and Excise of equivalent rank to a Commander or ACC, the statute states that this is for the Commissioners of Customs and Excise to determine and to specify (Schedule 5, Part 3, subsection (3)). Under current arrangements an officer in pay band 11 or above would be equivalent in rank.

The officer may only make an application for the DPP's consent if he or she is satisfied that:

  • new evidence has been obtained which would be relevant to an application to the Court of Appeal for a section 77 order in respect of the qualifying offence to which the investigation relates; or
  • he or she has reasonable grounds for believing that such new evidence is likely to be obtained as a result of the investigation.

The DPP will not give his consent unless satisfied that there is, or as a result of the investigation is likely to be, sufficient new evidence to warrant the conduct of the investigation, and it is in the public interest for the investigation to proceed. (For the meaning of "new evidence" see 'What counts as new evidence? below in this chapter; and for the meaning of "public interest" see Public Interest below in this chapter.

The DPP may recommend that the investigation be conducted otherwise than by officers of a specified police force or specified team of Customs and Excise officers.

The written consent should be that of the DPP personally, or that of the Principal Legal Advisor where he has been expressly authorised by the DPP to do so in the Director's absence.

Cases go the DPP via the CCP, or where a case does not originate within an Area, via the Head of Division. Therefore, the ACC/Commander must direct the request to the CCP (or Head of Division) and not to any other prosecutor.

The CCP/Head of Division should make a detailed recommendation to the DPP. The recommendation should identify the new evidence that has been obtained or is likely to be obtained and whether it is in the public interest to proceed with the investigation. The recommendation should cover whether there is a need for reporting restrictions at this stage. If possible within the time, it should also address the consequences for the victim of whether or not to order a re-investigation, and any views expressed by the victim or the victim's family.

The DPP via Private Office will keep the Attorney General informed of cases where he gives consent to investigative steps being taken under section 85(2)(b).

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Urgent investigative steps section 86

An officer may take any action for the purposes of an investigation if:

  • Action is necessary as a matter of urgency to prevent the investigation being substantially and irrevocably prejudiced: and
  • There has been no undue delay in applying for consent from the DPP under section 85(2), that consent has not been refused, and, taking into account the urgency of the situation it is not reasonably practicable to obtain that consent before taking action; and
  • Either a superintendent or above has authorised the action under section 86(3) or there has been no undue delay in applying for authorisation, that authorisation has not been refused, and, taking into account the urgency of the situation it is not reasonably practicable to obtain that authorisation before taking the action.

An "officer" includes an officer of Customs and Excise (Schedule 5, Part 3, subsection (3)).

Where a superintendent authorises the 'urgent action' whether before or after the investigative steps are taken, he or she must at the same time justify his or her actions in writing.

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Authorisation from a superintendent under section 86(3)

A superintendent or above may authorise the action if:

  • he or she is satisfied that new evidence has been obtained which would be relevant to an application to the Court of Appeal for an order quashing the acquittal and directing a retrial in respect of the qualifying offence to which the investigation relates; or
  • he or she has reasonable grounds for believing that such new evidence is likely to be obtained as a result of the investigation

The authorisation must be in writing if reasonably practicable. If not, then it must be recorded in writing by the officer giving the authorisation as soon as is reasonably practicable.

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The effect of undue delay

If there has been undue delay in seeking either consent from the DPP under section 85(2) or in seeking the authorisation of a superintendent under section 86(3), then section 85 dictates the procedure to be followed, and the urgent investigative steps procedure under section 86 are not applicable.

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If urgent investigative steps are taken

Urgent investigative steps may be permissible even though neither the DPP's consent nor a superintendent's authorisation has been obtained. It is even possible for them to be taken where the consent or authorisation has not been applied for. However, if this does occur, the action must be "necessary as a matter of urgency to prevent the investigation being substantially and irrevocably prejudiced".

Officers should note that if they do proceed without authorisation from a superintendent or above, any steps taken will be treated as unlawful unless the officer obtains a certification from the superintendent (or above) as soon as reasonably practicable after the action is taken.

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Certification from a superintendent or above after the urgent steps section 86(6)

This is written certification that the superintendent (or above) is satisfied either that:

  • When the action was taken, new evidence had been obtained which would be relevant to an application for an order quashing an acquittal and directing a retrial in respect of the qualifying offence to which the investigation relates; or
  • The officer who took the action had reasonable grounds for believing that such new evidence was likely to be obtained as a result of the investigation.

Officers should not ask for, and prosecutors other than CCP/Head of Division should not give advice as to whether investigative steps can be taken without the DPP's consent, whether because of urgency or any other reason.

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Proceeding by arrest

In criminal proceedings generally, where the police arrest and charge a person or obtain a warrant from a Justice of the Peace, the first court appearance is in the magistrates' court. However, under these provisions the first appearance is in the Crown Court.

Where the police wish to arrest the acquitted person as part of the investigation, having obtained the DPP's consent under section 85(2), they must in addition obtain a warrant from a Justice of the Peace under section 87(1)(a).

Where the investigative steps did not initially include arrest of the acquitted person, but consisted of other steps (such as a search of premises), the police may now wish to arrest the acquitted person. Again, they must obtain a warrant from a Justice of the Peace under section 87(1)(a).

A JP may only issue a warrant under section 87(1)(a) if satisfied on written information that new evidence has been obtained which would be relevant to an application for a "section 77 order". A warrant cannot be issued where the police have reasonably grounds to believe that new evidence is likely to be obtained. This means that the police need a warrant before they can arrest an acquitted person.

Part 10 of the 2003 Act has its own charging procedures and the statutory charging procedures under Part 4 of the 2003 Act do not apply. If a warrant is issued and the acquitted person is arrested, then it is for s superintendent (or above) who has not been involved in the investigation to decide whether there is enough evidence to charge the acquitted person. There is sufficient evidence if, and only if, the superintendent (or above) is of the opinion that the evidence available or known to him is sufficient for the case to be referred to a prosecutor (the DPP) to consider whether consent should be sought for an application for a retrial to the Court of Appeal (section 37(7) PACE as modified by section 87(6)(d).

After charge section 38 of PACE applies, which provides that the custody officer must release the accused on bail, subject to section 25 of the Criminal Justice and Public Order Act 1994 (as amended), unless the exceptions apply as set out in section 38 (1) of PACE. If the officer decides to bail the accused, it will be to the Crown Court section 88(1).

If the officer decides not to release the accused on bail, then the accused must be brought before the Crown Court as soon as practicable, and in any event within 24 hours section 88(2).

Annex B provides a step by step procedural guide when the police arrest and charge an acquitted person. This should be read with Obtaining the DPP's consent to an application under Section 76, below in this section.

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Proceeding other than by arrest

The acquitted person may not have been arrested as part of the investigation because none of the investigative steps in section 85(3) were necessary. However, if the police obtain new evidence by carrying out other investigative steps, the new evidence may prompt a request for the DPP's consent to an application under section 76 (an application for a retrial).

In these circumstances a summons is sought from the Crown Court section 89(3)(a) when the prosecutor gives notice of an application to the Court of Appeal.

The summons would require the acquitted person to appear before the Court of Appeal at the hearing of the application under section 76. Given that in this scenario, the police have not thought it necessary to arrest the acquitted person, the Crown should seek a summons rather than a warrant for the arrest of the acquitted person, unless there are circumstances which justify a warrant.

If a summons has been issued but, for any reason, it is subsequently thought that a warrant is needed, for example where it is likely that the acquitted person may abscond, the prosecutor may apply for a warrant section 89(3)(b).

Annex C provides a step by step procedural guide in relation to bail and custody after the notice has been served where there has not been an arrest. This should be read with part 10 of this guidance below).

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At the Crown Court: Bail and custody before application section 88

Section 88 governs charging, bail and custody before an application to the Court of Appeal is made for a "section 77 order". It envisages that the acquitted person has been charged by the police and either bailed to the Crown Court, or kept in custody.

If an acquitted person is charged by the police under section 88 and either kept in police custody or local authority accommodation, or granted bail, he or she must be brought before the Crown Court as soon as practicable, and in any event not more than 24 hours after charge, or bailed by the police to attend the Crown Court within 24 hours (includes Saturday). In calculating the time period disregard Sundays, Bank Holidays, Christmas Day and Good Friday.

Therefore, it must be clear from the file precisely when the suspect was charged, and close liaison is needed between the police and the prosecutor. The expectation is that the timing of an arrest can be considered and avoid the need for a hearing on a Saturday. However, where this is unavoidable, the magistrates' court will have contact details for the appropriate crown court officer.

If the acquitted person appears at the Crown Court before the application has been served the prosecution has 42 days from that appearance to serve notice of application on the Court of Appeal. The Crown Court may extend the 42-day period if there is good and sufficient cause and the prosecutor has acted with all due diligence and expedition.

The Crown Court shall forward to the registrar a copy of any record made relating to bail or custody under the Bail Act 1976 CPR Part 41.5(4).

If the acquitted person has been charged by the police and notice of application has been served on him, the Crown Court may bail him to appear before the Court of Appeal on the date on which the application is to be heard section 88(4)(a).

If the notice of application has not been served, the Crown Court may remand the acquitted person in custody, to be brought before the Crown Court, as soon as practicable and, in any event within 48 hours after the notice is given.

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Obtaining the DPP's consent to an application under section 76

If the DPP personally consents, then the CCP/prosecutor may apply to the Court of Appeal under section 76 for an order quashing the acquittal and directing a retrial. An application under section 76 is an application by the prosecutor to the Court of Appeal for "a section 77 order".

Where the acquittal was an acquittal in England and Wales, the application is made under section 76(1).

Where the acquittal was outside the UK, the application is made under section 76(2).

Only one application is permitted in respect of an acquittal of a qualifying offence. Thus the prosecutor may appeal the decision of the Court of Appeal, but may not make a second application.

The DPP's consent may only be given to an application to the Court of Appeal if:

  • There appears to be new and compelling evidence against the acquitted person in relation to the qualifying offence (as required by section 78);
  • It is in the public interest for the application to proceed; and
  • Any trial pursuant to an order on the application would not be inconsistent with obligations of the United Kingdom under Article 31 or 34 of the Treaty on European Union relating to the principle of ne bis idem [the right not to be prosecuted or tried twice for the same facts] section 76(4).

The DPP will only consent if, in addition, it seems probable that the Court of Appeal will find it in the interests of justice under section 79 for "a section 77 order" to be made.

Consent needs to be given personally by the DPP (with one exception see paragraph below). Therefore the CCP/Head of Division reviews the file and makes a recommendation to the DPP.

There are two basic steps at this stage. The first is a filter, which entails establishing whether Part 10 applies at all. The second step is an application of judgement as to whether the case meets the requirements of section s 78 and 79. That assessment will result in a recommendation to the DPP. The final decisions rests with the DPP.

The filter: does Part 10 apply?

The CCP/Head of Division should establish that Part 10 could apply, i.e. is the offence in question a qualifying offence within section 75.

The recommendation to the DPP

The CCP/Head of Division should assess the likelihood of sections 78 and 79 being satisfied. This is because the Court of Appeal must make "a section 77 order" if satisfied that the requirements of sections 78 and 79 are met. Otherwise it must dismiss the application or, where the acquittal was obtained abroad, declare that it is a bar to further prosecution.

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Section 78

Section 78 is satisfied if "there is new and compelling evidence against the acquitted person in relation to the qualifying offence".

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What counts as "new" evidence?

Section 78(2) states that 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 Attorney General gave an undertaking (during the passage of these provisions in Parliament) that evidence will not be used as the basis of an application for retrial if the evidence was in the possession of the prosecution at the time of the original trial, but withheld for tactical reasons. The DPP has decided that evidence which was not adduced at the original trial for tactical reasons, is not to be treated as "new" evidence. CCP/Head of Division should therefore investigate not only whether the new evidence was adduced at trial, but also whether it could have been, and why it was not.

Evidence may have been inadmissible, or admissible but not admitted as a result of a ruling by the judge at the original trial, but admissible at any retrial because of a change in the rules on admissibility since the original proceedings. In terms of section 78(2) this is "new" evidence. However, the consent of the DPP may only be given where the new evidence is compelling, which means reliable, substantial, and in the context of the outstanding issues, it appears highly probative of the case against the acquitted person section 78(3). The DPP has agreed that if his consent is sought to an application to the Court of Appeal where the evidence was available but not admissible or admitted at the original trial (and not withheld for tactical reasons) then its probative value will be assessed in accordance with the standard laid down in section 78.

The question arises as to the appropriate approach in relation to evidence which could, with reasonable diligence, have been discovered at the time of the original proceedings. It is appropriate, when assessing whether section 76(4) is satisfied, to also consider whether the Court of Appeal is likely to make the order sought. The Court of Appeal will take any failure into account under section 79(2)(c) and (d). The DPP has agreed that any failure to act with due diligence will be part of the public interest test which he has to apply, in accordance with section 76(4)(b).

Evidence which was not available or which was available but without probative value is the kind of evidence for which the legislation was designed and there is no policy reason that it should not be considered in accordance with sections 76 and 78. Examples include a highly cogent witness statement, a highly credible confession, or evidence which was available at the time but of which the relevance has only come to light, as a result of developments in forensic science.

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What is "compelling" evidence?

Section 78(3) states that evidence is "compelling" if it is (a) reliable, (b) substantial, and (c) in the context of the issues in dispute at the trial, it appears highly probative of the prosecution case against the acquitted person.

Thus, if in a rape trial identity was in issue, then the new evidence as to identity could potentially be compelling. If, on the other hand, the issue at trial was consent and not identity, then the new evidence as to identity could not be "compelling".

The CCP/Head of Division should determine what the issues in dispute were, and then examine the probative value of the evidence in the light of that. For example, if the acquitted person was acquitted of arson endangering life, and at trial he had accepted that he was present but denied participation, CCTV evidence cannot be compelling if all it goes to prove is that the person was present. By contrast, if the CCTV evidence is of such a quality that it is "highly probative" as to the person's role, it could potentially be "compelling".

The reason behind this approach is not to consider how strong the original case now is with the enhancement of the new evidence but to enable a case to be reopened when the evidence comes to light which is itself so apparently compelling that the court hearing the application is driven to the conclusion that at that stage the evidence is highly probative of the prosecution case against the acquitted person.

The probative value of the new evidence in each case is to be assessed on its own merits. The DPP has agreed that he would only want to proceed in cases in which, as a result of the new evidence a conviction is highly probable, either by a plea of guilty or by the verdict of the jury and any acquittal by a jury would appear to be perverse. This is consistent with the requirement of high probative value of the item of evidence specified in section 78(3)(c).

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"The public interest"

The DPP must consider the public interest in deciding whether or not to make an application to the Court of Appeal to quash an acquittal. An application will usually take place (so long as the other conditions are satisfied) unless there are public interest factors tending against an application which clearly outweigh those factors tending in favour.

The DPP acts on behalf of the public and not just in the interests of a particular individual. However, the DPP should take into account the consequences for the victim of whether or not to make an application to the Court of Appeal, and any views expressed by the victim or the victim's family.

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Section 79

The CCP/Head of Division should assess the likelihood of section 79 being satisfied, namely the likelihood of the Court of Appeal determining that it is in the interests of justice to quash the acquittal and order a retrial.

Section 79(2) states that the Court of Appeal is to reach its decision having regard in particular to:

  • Whether existing circumstances make a fair trial unlikely;
  • For the purposes of that question and otherwise, the length of time since the qualifying offence was allegedly committed;
  • 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 (including a person in another jurisdiction with a corresponding role) to act with due diligence or expedition;
  • 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.

Failing to exclude evidence which the police could reasonably have found during the original investigation might be seen as an incentive to poor investigations. To safeguard against this, section 79(2) provides a specific element of due diligence into the 'interests of justice' test the Court of Appeal must apply in considering applications for a retrial. No court would allow the prosecution a second chance of prosecuting a person to make up for the incompetence of the prosecution (police and prosecutor).

The DPP has agreed he will only consent to an application for a reinvestigation or an application to the Court of Appeal to quash the acquittal where the prosecution comes to the process with 'clean hands'. Therefore, the DPP will consider any failure to act with due diligence to be part of the public interest test which he has to apply, in accordance with section 76(4)(b).

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Other matters to be covered in the recommendation to the DPP

The CCP/Head of Division should also advise the DPP on how communication with the victim, family and community is best handled, insofar as it is possible to say at this stage.

The recommendation should also address the question of whether, and if so when, reporting restrictions will need to be applied for or varied.

If the original offence was one for which the Attorney General's consent was needed to commence a prosecution, then the DPP will consult with the Attorney before the DPP gives his consent to an application to the Court of Appeal. This is to ensure that the Attorney General is advised of the case and kept informed of progress. The Attorney General's consent having been given once is not required a second time. The CCP/Head of Division should, where the original offence required the Attorney's consent to prosecution, draft a letter from the DPP to the Attorney.

At the conclusion of the assessment the CCP/Head of Division should pass the file to the DPP via Private Office with a reasoned recommendation and fully annotated file.

The DPP has agreed that where the CCP/Head of Division has concluded that the request does not concern a "qualifying offence" and therefore Part 10 does not apply, that such files need not be forwarded to him for his consideration. However, where the CCP/Head of Division has concluded that the request does concern a "qualifying offence" and Part 10 is applicable, the file is to be forwarded to the DPP for his consideration, whether the recommendation is to consent or not to consent.

If the DPP approves the case as being one where it is appropriate for an application to the Court of Appeal to be made, then the procedure should be followed as laid down in section 80 and the Rules of Court.

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Making the application section 80

The Court of Appeal can only make an order to quash an acquittal and order a retrial if it is satisfied that there is both new and compelling evidence and that it is in the interests of justice.

The prosecutor who wishes to make an application under section 76(1) or section 76(2) must give notice of the application to the Court of Appeal section 80(1).

The prosecutor must give notice in Form RSO 1 to the Registrar of criminal appeals of the Court of Appeal in accordance with the Criminal Procedure Rules (CPR) Part 41.2 Note that the time periods in the rules do not include Saturdays (unlike the time periods in sections 88 - 91. The Rules (Annex D) and prescribed forms (Annex E) are attached to this guidance.

The prosecutor shall send with the notice to the registrar and the acquitted person, where practicable, the following documents:

  • Relevant witness statements which are relied upon as forming new and compelling evidence against the acquitted person as well as any relevant witness statements from the original trial;
  • Any unused statements which might reasonably be considered capable of undermining the section 76 application or of assisting an acquitted person's application to oppose the application;
  • A copy of the indictment and paper exhibits from the original trial;
  • Copies of the transcript of the summing up and any other relevant transcripts from the original trial; and
  • Any other documents relied upon to support the section 76 application.

The prosecutor must give notice to the acquitted person of the application within two calendar days including the day the notice is given to the Court of Appeal. If the person on whom notice is to be served is outside the UK, the prosecutor should apply to the Court of Appeal for an extension of the period for service in Form RSO 1.

Where the acquitted person is in the UK, and bearing in mind the time for service under CPR Part 41.17, the notice of application must either be served personally on the AP or on his solicitor within the two-day period, or the notice of application must be left at the acquitted person's known or last known address or place of business or his solicitors address, or, if willing to accept service by fax or by electronic means, on the same day as the notice is served on the Court of Appeal because service, in the above circumstances, is effected on the next business day after the day on which it is left. This means that service on an address, or if agreed by fax or electronic means, must only take place Monday - Thursday.

The notice must charge the acquitted person with the offence, if the person has not already been charged by the police under section 87(4). If the person has already been charged under section 87(4), the notice must say so.

If the prosecutor intends to ask the Court of Appeal to make an order under section 80(6) for the production of any document, or other thing or for the attendance of a witness, at the section 76 hearing, then this should be specified in Form RSO 1.

The prosecutor must, as soon as practicable after service of the notice on the acquitted person, serve on the registrar a witness statement or certificate of service which exhibits a copy of the notice CPR Part 41.2(3).

The prosecutor should review the reporting restrictions in place (if any) and consider whether an application for such an order, or for an existing order to be varied or revoked, should be made. (see section 17 below for the test the court will apply in deciding whether to order reporting restrictions.) The prosecutor should consult the Senior Investigative Officer when considering this issue.

If reporting restrictions are applied, unless an earlier time is specified in the order applying the restrictions, then they may be applied until the end of the retrial or until it becomes clear that the acquitted person can no longer be retried.

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Response of the acquitted person

If the acquitted person chooses to oppose the application under section 76, he or he must serve on the registrar and the prosecutor a response in Form RSO 2 not more than 28 days after receiving the notice of the section 76 application. This time period may be extended on application to the Court of Appeal. A single judge or the registrar, can hear the application to extend the time period.

If the acquitted person intends to ask the Court of Appeal to make an order under section 80(6) for the production of any document, or other thing or for the attendance of a witness, at a section 76 hearing, then this must be stated on Form RSO 2.

If the application to extend time was heard by a single judge or registrar, and refused, that decision can be appealed to the full Court of Appeal if from the single judge and to the single judge if from the registrar by serving Form RSO 5 (see CPR Part 41.10, 41.11 and 41.12).

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Examination of witnesses or evidence by the court

Before the section 76 hearing a party to the application may apply for an order under section 80(6) for the production of any document or other thing, or for the attendance of a witness in accordance with CPR Part 41.4. This should be on Form RSO 3. Amongst other things, the party must state why the section 80(6) request was not made before.

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Bail/Custody once the notice of application has been served

An acquitted person may at this point be charged and in custody (under section 88(4)(b)), charged and bailed by the Crown Court (under section 88(4)(a)), or not charged and at large.

If the acquitted person has been charged, remanded in custody under section 88(4)(b) and the notice of application is served on the accused, he or she must be brought before the Crown Court as soon as is practicable, and in any event within 48 hours after the notice is given section 89(2). The Crown Court must then either remand the accused in custody to be brought before the Court of Appeal for the hearing of the application, or bail him or her to appear before the Court of Appeal at the hearing of the application.

If bail is granted, the court still has power to revoke that bail section 89(8).

If the acquitted person is at large then the prosecutor should serve the section 76 application on the Court of Appeal and on the acquitted person and apply to the Crown court for the issue of a summons section 89(3)(a) or for a warrant for the person's arrest section 89(3)(b). The purpose of the summons is to bring the acquitted person before the Court of Appeal at the hearing of the application. A summons is the more likely way of proceeding at this point.

If a warrant is issued under section 89 (3)(b) and executed the acquitted person must be brought before the Crown court as soon as practicable and in any event within 48 hours after the arrest section 89(6).

When the person is brought before the Crown Court, whether as a result of section 89(2) or section 89 (6), the court must then either remand the accused in custody to be brought before the Court of Appeal for the hearing of the application section 89(7)(a), or bail him or her to appear before the Court of Appeal at the hearing of the application section 89(7)(b).

Even though a summons is issued, the prosecutor may apply for a warrant of arrest subsequently section 89(3).

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Abandonment of the application

The prosecutor may abandon "a section 76 application" before the hearing of the application by serving notice in Form RSO 7 on the registrar and the acquitted person CPR Part 41.16.

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The hearing of the application to the Court of Appeal

The acquitted person is entitled to be present at the hearing of the application (except when in lawful custody elsewhere than in England, Wales or Northern Ireland), and to be represented. Where the acquitted person is held in Scotland, the Scottish authorities should be consulted about producing the person in court, as the consent of the Scottish Executive Ministers is required in these cases.

The Court of Appeal may "if it thinks it necessary or expedient in the interests of justice", compel the attendance of any witness who could be compelled to attend a retrial, and/or the production of any thing.

If the court finds that sections 78 and 79 are satisfied, it must make an order quashing the acquittal and directing a retrial.

Again, the prosecutor should review the position on reporting restrictions.

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Appeal

The prosecutor has the right of appeal against the Court of Appeal's determination, with leave of the Court of Appeal or the House of Lords, as does the acquitted person section 81. Leave will only be given where the court certifies that a point of law of general public importance is involved in the decision and it appears that the point is one which ought to be considered by that House. The application must be made within 14 days (Criminal Appeal Act 1968, section 34).

If the court does not make a "section 77 order" sought it must dismiss the application, and the suspect will then be released from custody or from any duty to appear before the court. If the prosecutor is minded to appeal the Court of Appeal's decision, he or she should seek leave to appeal or give notice that the prosecution intends to seek leave to appeal.

If the acquitted person is detained pending the appeal, section 38 of the Criminal Appeal Act 1968 applies: the acquitted person is not entitled to be present at the hearing of the appeal without the leave of the court (section 81(5)).

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Bail/Custody during and after the hearing: Section 90

Once the application has started to be heard by the Court of Appeal, section 90 applies. If the court adjourns the hearing it may remand the person on bail or in custody section 90(1).

If the court makes a "section 77 order" quashing the acquittal and directing a retrial, or a declaration that the acquittal is no bar to prosecution, it may make such arrangement as it thinks fit as regards remanding the accused person on bail or in custody until the date of the trial section 90(2).

Similarly, if the court dismisses the prosecution's application, or makes a declaration that the foreign acquittal is a bar to prosecution, and either the prosecution has notified the court that it intends to seek leave to appeal, or the court has granted leave to the prosecution to appeal, the court may make such arrangement as it thinks fit as regards remanding the accused person on bail or in custody until the leave or appeal process terminates.

Note, however, that although section 90(2) is expressed in terms of an unlimited discretion, the Court of Appeal's discretion is not unlimited. The right to bail under section 4 of the Bail Act 1976 applies section 90(4), and Article 5 of the ECHR applies.

The court may revoke or vary any grant of bail that it has made.

CPR Part 68.7 and 68.8 (about recognizance of sureties) apply to orders made under section 90 CPR Part 41.7.

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Revocation of bail generally: section 91

Section 91 deals with the consequences of a revocation of bail where the bailed person is not before the court.

Where a court revokes bail and that person is not before the court when bail is revoked, the court must order him to surrender forthwith. A constable may arrest a person for failing to surrender without reasonable cause in accordance with the order.

A person arrested on warrant must be brought as soon as practicable, and in any event, not more than 24 hours after he is arrested, before the Crown Court (including Saturdays).

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Preferring the indictment

If the application is granted, the Court of Appeal directs the indictment to be preferred.

The charge is framed, as it would have been under the law as it stood at the time of the alleged offence.

The indictment may include an offence which, or a person who, was not the subject of the "section 77 order" section 84(5).

The prosecutor should arrange for the charged person to be arraigned on that indictment within two months of the Court of Appeal's order. If the person is not arraigned within that time then the person against whom the order was made may apply to have it set aside section 84(4). Such an application must be made in accordance with CPR Part 41.14.

Custody time limits of 112 days (between preferment of the indictment and the start of the trial) apply to retrials under Part 10 by virtue of Regulations made under the Prosecution of Offences Act 1985. This should not cause problems given that the indictment should be preferred within two months (unless extended). However, the prosecution can always apply for an extension of the custody time limit prior to its expiration under section 22(3) of the Prosecution of Offences Act 1985, if acted with due expedition and there are good and sufficient cause for the extension.

In addition, if the person is not arraigned within that time, and even if the person does not apply to set aside the order, the prosecutor will have to obtain the leave of the Court of Appeal to proceed on the indictment, and leave will not be given if there has been undue delay. Such an application must be made in accordance with rule 15. The Court of Appeal may extend the two month period if satisfied that:

  1. the prosecutor has acted with due expedition since the order; and
  2. there is good and sufficient cause for trial despite the lapse of time since the order which quashed the acquittal and directed the retrial section 88(3).

The Act does not specify on what basis the Court would decide to set aside the order, but it is likely either to extend the time period for the prosecution or to set aside the order, rather than leave the matter in limbo. If the court sets aside the order it may also reinstate the original acquittal. If the original acquittal occurred outside the UK, the Court could declare that the original acquittal is a bar to any further prosecution for the qualifying offence.

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The retrial

The Crown Court retains its discretion to stop a trial if it considers that to proceed would be an abuse of process. The Attorney General said in Parliament that he thought it unlikely that the trial court would reach a different decision from the Court of Appeal, although this must be feasible, for example where the Court of Appeal quashes an acquittal and orders a retrial and the Crown Court stays the retrial for abuse. The prosecution may also appeal a judge's ruling to stop the case for abuse of process under section 58 of the 2003 Act (prosecution rights of appeal).

Again, the prosecutor should keep any reporting restrictions under review. If it appears to the prosecutor that an order is needed, or needs to be varied, then the application should be made to the court.

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Conduct of the retrial

Section 84(6) provides that evidence which was given orally at the original trial must be given orally at the retrial unless:

  • All parties agree; or
  • Section 116 of the 2003 Act applies (which provides for permitting hearsay where the witness is unavailable) This is not yet in force but is likely to implemented in April 05; or
  • The witness is unavailable to give evidence for a reason other than that he or she is dead, unfit, unavailable because they are outside the UK, untraceable, or in fear (i.e. otherwise than as mentioned in section 116(2)) and it is in the interests of justice for it to be admissible section 114(1)(d) applies).

Use of depositions: If a deposition was read as evidence at the original trial where the accused was sent for trial under section 51 of the Crime and Disorder Act 1998 it may not be read as evidence at the retrial in reliance on paragraph 5 of Schedule 3 to the Crime and Disorder Act 1998 section 84(7).

The retrial will hear all the evidence, and the "new and compelling" evidence will not be introduced as such, (although it is clearly likely to stand out as new and compelling evidence in the context of the trial).

A witness may be cross-examined on evidence given by that witness at the original trial, for example if it amounts to a previous inconsistent statement. (Note that the new rules on inconsistent statements mean that the earlier statement will go to the truth of the matter, and not just to the credibility of the witness).

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Reporting restrictions section 82

It is not in itself prejudicial for a jury to know that a matter before them has been tried before, but in the case of a retrial which has been ordered by the Court of Appeal under Part 10, it will be apparent that the Court of Appeal has quashed an acquittal and ordered a retrial because it was sufficiently impressed by the evidence. Therefore, reporting restrictions may be needed to prevent a future jury being aware of the reinvestigation and/or the application for an order quashing the acquittal and directing a retrial.

The court may apply restrictions where it appears to the court that "the inclusion of any matter in a publication would give rise to a substantial risk of prejudice to the administration of justice in a retrial". The court may apply restrictions only if it considers it necessary to do so in the interests of justice section 82(3).

The restrictions may relate to "any matter" section 82(1).

"Publication" in section 82 covers any form of publication, including on the web, which is addressed to the public at large or any section of the public (with the exception of documents prepared for legal proceedings) section 82(11).

The restrictions may apply to re-publication of a matter which has already been published section 82(4).

Reporting restrictions may be applied by the court at any time after the re-investigation has commenced section 82(6). Before the application for a "section 77 order" has been made, the court may only do so on the application of the prosecutor. After the application has begun, the court may do so of its own volition or on application of the prosecutor.

The prosecutor may thus seek reporting restrictions at any time after the investigation of the qualifying offence has commenced (since the acquittal). The prosecutor should consider whether to ask the court for reporting restrictions when the case is put to the DPP for consent to carry out investigative steps, and again at each stage thereafter.

An application must be made in accordance with CPR Part 41.8.

An application by the DPP, under section 82 for restrictions on publication must be in Form RSO 4 and be served on the registrar and the acquitted person. The exception is where the application for reporting restrictions is not made as part of the application for a "section 77 order" and the DPP provides details of reasons why the acquitted person should not be notified on the application for reporting restrictions. In that event, the Court of Appeal may order that the acquitted person is not to be served with notice of the application for reporting restrictions CPR Part 41.8(2).

If the prosecutor seeks such restrictions and they are applied, the order applying the restrictions must specify when they cease to have effect section 82(8).

Once the notice of application has been given the restrictions will cease to have effect either when there is no longer any step that could be taken which would lead to a retrial or, if there is s retrial, at the end of the trial, unless the order specifies some earlier time section 82(9).

A court may vary or revoke reporting restrictions on its own motion or on application by a prosecutor, or by the acquitted person section 82(7). An application to vary or revoke an order for reporting restrictions may be made in writing by a party at any time after the order was made (rule 9(1)). A copy of the application to vary or revoke reporting restrictions shall be sent to all parties unless the application to vary or revoke is made by the DPP and before a notice of under section 76 has been given and the Court of Appeal has ordered that service on the acquitted person is not to be effected.

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Breach of reporting restrictions

The Act creates offences under section 83 of publishing a matter which was covered by an order made under section 82 restricting publication. The offences are summary, punishable by a maximum level 5 fine. Prosecution for an offence under section 83 may only be instituted with the consent of the Attorney General.

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Media liaison

Whatever the position with regard to reporting restrictions, the CPS and police will need to agree how to deal with media inquiries at the various stages of the case. CCPs and Private Office should consult their Area media representatives and Communications Branch on all issues concerning the media, as appropriate in each case.

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The Director's Private Office

All cases sent to the Director for his consent to a re-investigation or his consent for an application to quash an acquittal must be sent to his Private Office. Staff in Private Office will keep a record of such cases. This record should include brief details of the case; the timing of any request and application; the reasons for or against the giving of consent; and the ethnicity, gender and disability of both the acquitted person and the victim.

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Useful references

Part 1 of Schedule 5 of the 2003 Act
section 77(1)
section 77(3)
section 77(4)
section 92
section 85(2)(a)
section 85(2)(a)
section 92(3)
Part 3 of Schedule 5 para 52
section 75(1)
section 75(4)
section 75(6)
section 75(3)
section 85
section 86
section 87(1)(a)
section 85(2)(a)
section 85(2)(b)
section 77
section 86
section 86(3)
section 86(3)
section 86(6)
section 85(2)
section 87(1)(a)
section 87(1)(a)
Part 10 of the 2003 Act
section 87(6)(d)
section 25 of the Criminal Justice and Public Order Act 1994 (as amended)
section 88(1)
section 88(2)
section 76
section 89(3)(a)
section 76
section 89(3)(b)
section 88
Section 88
"section 77 order"
CPR Part 41.5(4)
section 88(4)(a)
section 76(1)
section 76(2)
section 78
section 76(4)
Section 78
Section 78(2)
section 78(3)
section 76(4)
section 79(2)(c) and (d)
section 76(4)(b)
Section 78(3)
section 79
Section 79(2)
section 79(2)
section 76(4)(b)
section 80
section 80(1)
sections 88 - 91
Part 41.17
section 87(4)
section 80(6)
CPR Part 41.2(3)
section 80(6)
CPR Part 41.10, 41.11 and 41.12
section 80(6)
CPR Part 41.4
section 88(4)(b)
section 88(4)(a)
section 89(2)
section 89(8)
section 89(3)(a)
section 89(3)(b)
section 89 (3)(b)
section 89(6)
section 89(7)(a)
section 89(7)(b)
section 89(3)
CPR Part 41.16
section 81
(Criminal Appeal Act 1968, section 34)
section 90
section 90(1)
section 90(2)
section 90(4)
CPR Part 68.7 and 68.8
CPR Part 41.7
Section 91
section 84(5)
section 84(4)
CPR Part 41.14
section 88(3)
section 58 of the 2003 Act
Section 84(6)
Section 116 of the 2003 Act
section 114(1)(d)
section 84(7)
section 82
section 82(3)
section 82(1)
section 82(11)
section 82(4)
section 82(6)
CPR Part 41.8
CPR Part 41.8(2)
section 82(8)
section 82(9)
section 82(7)

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