Acquittals - Double jeopardy - Fresh evidence - Murder

R v Dobson: CA (Crim Div) (Lord Chief Justice Lord Judge, Mrs Justice Rafferty, Mr Justice Holroyde): 18 May 2011

The prosecution applied for the acquittal of the respondent (D) to be quashed and for a retrial to be ordered under section 76 of the Criminal Justice Act 2003.

In 1993 an 18-year-old boy (V) was waiting at a bus stop when a group of white youths attacked him shouting racist abuse.

V was stabbed twice and died from the injuries.

V’s parents began a private prosecution and D and others were tried and acquitted of murder on the judge’s direction.

The instant application was dependent on the reliability of new scientific evidence found on D’s clothing, closely linking him with the attack.

D contended that the evidence was unreliable because the results of the new examination of his clothing were likely to be the product of contamination by contact with V’s blood and his clothing.

D submitted that even if there was sufficient evidence to link him with presence at the scene of the killing there was unlikely to be a fair trial given the constant publicity and identification of those suspected.

Held: (1) The ‘compelling evidence’ necessary under section 78 did not mean that the evidence had to be irresistible or that absolute proof of guilt was required.

The court should not usurp the function of the jury or, if a new trial was ordered, indicate to the jury what the verdict should be.

The quashing of an acquittal was an exceptional step and could only be ordered if the statutory requirement in relation to the reliability of the new evidence was clearly established, R v G (G) [2009] EWCA Crim 1207, Times, 9 July 2009 applied.

The legislative structure did not suggest that availability of a realistic defence argument, which might serve to undermine the reliability or probative value of the new evidence, precluded an order quashing the acquittal.

Provided the new evidence was reliable, substantial and appeared to be highly probative, then for the purposes of section 78 it was compelling (see paragraphs 7-8 of judgment).

(2) The interests of justice test contained in section 79 required attention to be focused on the express statutory criteria provided in that section.

However, those criteria, while wide-ranging, were not exhaustive.

However compelling the new evidence, it was elementary that any second trial should be a fair one (paragraph 10).

(3) The legislative arrangements which abrogated the double jeopardy principle made no distinction between an acquittal following a prosecution by the Crown, or an acquittal following a private prosecution (paragraph 11).

(4) In the instant case, there was sufficient reliable and substantial new evidence to justify the quashing of the acquittal and to order a new trial.

It was emphasised that the decision meant no more than that the question of whether D had any criminal involvement in V’s death had to be considered afresh by a new jury.

The presumption of innocence still applied (paragraph 15).

Application granted.

Mark Ellison QC, A Morgan for the Crown; Timothy Roberts QC, S Moses for the respondent.