Recanting Child ABE Evidence as “New and Compelling” Justifying Quashing a Murder Acquittal under the Criminal Justice Act 2003

1. Introduction

R v Rhodes ([2024] EWCA Crim 1411) is a rare and significant decision in the “double jeopardy” exception framework under Part 10 of the Criminal Justice Act 2003. Robert Rhodes had been acquitted of murder in 2017 after admitting inflicting the fatal throat wound to his wife but maintaining that he acted lawfully—in self-defence and/or defence of his child—and alternatively disputing murderous intent.

A pivotal element at trial was the evidence of Rhodes’ child (“R”), then aged 9, given through ABE interviews, supporting the defence narrative that the deceased armed herself with a knife, wounded R, and attacked Rhodes. Years later, when aged 15–16, R gave new ABE accounts asserting that the earlier account was false and that Rhodes allegedly staged injuries (including cutting R’s arm) to fabricate self-defence.

The prosecution applied to quash the 2017 acquittal under section 76 of the Criminal Justice Act 2003 on the basis of R’s later ABE accounts as “new and compelling evidence” (section 78), and contended that a retrial was in the “interests of justice” (section 79). The central issues were therefore:

  • whether R’s changed evidence was sufficiently reliable, substantial, and highly probative to be “compelling” under section 78; and
  • whether the passage of time and lost/destroyed material made a fair retrial unlikely under section 79.

2. Summary of the Judgment

The Court of Appeal (Criminal Division) granted the prosecution’s application: it quashed Rhodes’ acquittal for murder and ordered a retrial on an indictment containing five counts, including murder and further counts reflecting allegations that Rhodes inflicted R’s arm wound and engaged in perverting the course of justice and perjury.

The Court held that:

  • R’s 2022–2023 ABE evidence was new (not adduced at trial) and, despite being a dramatic recantation, was compelling within section 78;
  • in all the circumstances, the interests of justice favoured a retrial because a fair trial remained likely, notwithstanding missing evidence and the time elapsed.

The Court also continued reporting restrictions under section 82 of the Criminal Justice Act 2003 and made an anonymity order for R under section 45A of the Youth Justice and Criminal Evidence Act 1999.

3. Analysis

3.1 Precedents Cited

R v Dobson [2011] EWCA Crim 1256

The Court treated R v Dobson [2011] EWCA Crim 1256 as the principal guide to interpreting “compelling evidence” under section 78. Two propositions from Dobson were central:

  • “Compelling” does not require the evidence to be “irresistible” or to amount to “absolute proof of guilt”; the Court must not usurp the jury’s role.
  • The existence of a “realistic defence argument” undermining reliability/probative value does not automatically defeat an application; rather, the Court must assess whether, despite such arguments, it can still be satisfied the statutory elements are met (reliable, substantial, highly probative).

In Rhodes, this framework allowed the Court to accept that defence criticisms (including alleged inconsistencies and medical evidence about a back injury) were real, yet still conclude the statutory threshold was satisfied and that the proper forum for many disputes was the retrial jury.

R v (G), B (S) [2009] EWCA Crim 1207

The defence sought to characterise the case as akin to R v (G), B (S) [2009] EWCA Crim 1207, where proposed “new evidence” from a co-accused convicted at trial was treated as failing reliability—illustrating that quashing acquittals is exceptional and that credibility concerns can be fatal.

The Rhodes Court distinguished this comparison in substance: it stressed that R’s later accounts were not those of a “manipulative and cynical” convicted accomplice motivated by sentence reduction (a feature of the G, B(S) context, also linked to an agreement under section 74 of the Serious Organised Crime and Police Act 2005). Instead, R’s later evidence arguably increased R’s own moral burden (and described involvement while being below the age of criminal responsibility), which the Court treated as a powerful contextual indicator supporting reliability.

R v Bishop [2018] EWCA Crim 27; [2019] 1 WLR 2489

The Court relied on R v Bishop [2018] EWCA Crim 27; [2019] 1 WLR 2489 to reinforce that “compelling” evidence need not be “conclusive or unanswerable”. In Bishop, new scientific evidence was compelling even though the defence could raise arguable answers that were suitable for trial testing.

Although Rhodes involved recanting witness evidence rather than new science, Bishop supported the Court’s willingness to treat the statutory test as a threshold assessment, not a mini-trial—provided the Court can be satisfied on reliability, substance, and high probative value.

R v Watson [2023] EWCA Crim 1016

For the “interests of justice” analysis (section 79), the Court invoked R v Watson [2023] EWCA Crim 1016 on how criminal trials manage missing evidence and forensic gaps. Watson was used to support a practical proposition: it is not unusual for criminal cases to proceed with incomplete material, with fairness protected by burdens/standards of proof, appropriate jury directions, and the prohibition on speculation.

This helped the Court reject the defence contention that destroyed swabs and the missing phone made a fair trial “unlikely”.

3.2 Legal Reasoning

(a) The statutory gateway: sections 75–79 Criminal Justice Act 2003

The Court identified the statutory architecture: section 75 defines qualifying offences (murder qualifies); section 76 requires DPP consent (given); the application succeeds only if both section 78 (new and compelling evidence) and section 79 (interests of justice) are met.

(b) Section 78: why R’s later accounts were “new and compelling”

The evidence was plainly “new” because the 2022–2023 ABE accounts were not adduced at the 2017 trial. The major contest was whether it was “compelling”, and in particular “reliable”.

The Court’s reliability assessment was heavily contextual:

  • Against motive-to-lie arguments: the Court emphasised that R’s changed account did not obviously advance R’s self-interest; it involved admitting morally grave involvement (while acknowledging R was below criminal responsibility). This, the Court reasoned, was unlike self-serving “turncoat” evidence and supported reliability.
  • Earlier consistency (2016–2017) was treated as neutral: the defence argued that detailed consistency in childhood accounts made fabrication unlikely. The Court disagreed, noting the narrative was not inherently complex and that an addition in 2017 (a back injury detail) itself showed some inconsistency. Overall, the Court held the mere fact a young child gave consistent accounts did not materially prove they were true.
  • Alleged inconsistencies in 2022–2023 did not undermine reliability: key “developments” (e.g., whether the “close your eyes” idea was R’s or Rhodes’) were not prompted by confrontation with contrary evidence; R volunteered a change that increased R’s own apparent complicity, which the Court viewed as supporting rather than detracting from reliability.
  • The back injury dispute was not determinative: the defence relied on Dr Hamilton’s report that the shoulder injury was a shallow incised wound (a slash), inconsistent with R’s description of a deep stabbing. The Court held this did not destroy reliability because: (i) R’s 2017 account of the back injury (“shoved a knife through his back”) would also be inconsistent on that logic; (ii) there appeared to be two injuries in a photograph, one potentially puncture-like; (iii) the “halfway” stabbing depth was ambiguous (“halfway of what?”). The issue was therefore seen as a matter for trial exploration, not a conclusive refutation at the gateway stage.

Taking matters “in the round”, the Court was satisfied the evidence met the statutory definition: reliable, substantial, and in the context of the trial’s outstanding issues (unlawfulness/self-defence and the true mechanism of events), highly probative.

(c) Section 79: why a retrial was in the interests of justice

The defence argued that lost opportunities (to examine wounds, to test the “coercion” phone messages, and to re-analyse destroyed swabs in light of the new narrative) made fairness unlikely.

The Court accepted the scheme is two-stage: even where there is compelling evidence of a very serious crime, the acquittal should not be quashed unless a fair trial is likely. But it concluded fairness remained likely because:

  • the trial process can accommodate missing evidence through adversarial argument (including inviting jurors to be cautious about gaps), proper directions on the burden and standard of proof, and the prohibition on speculation; and
  • it is not unusual for defendants to rely on investigative omissions or unavailable forensic avenues; the system addresses this without necessarily rendering trial unfair.

Importantly, the Court framed section 79(2)(a) (“fair trial unlikely”) as an evaluative exercise, analogous in approach to (but not identical with) a fair-trial abuse of process argument: rather than a strict “impossible to have a fair trial” test, the statutory question is whether existing circumstances make fairness unlikely.

3.3 Impact

This decision is likely to be cited for several practical propositions in applications under the Criminal Justice Act 2003:

  • Recantation can still be “compelling”: a witness’s dramatic reversal—without obvious self-serving motive and especially where it increases the witness’s moral exposure—can satisfy section 78 reliability despite defence points about inconsistency.
  • Section 78 is not a mini-trial: the Court will not require the new evidence to be “unanswerable”; credible defence challenges may be reserved for the jury, consistent with R v Dobson [2011] EWCA Crim 1256 and R v Bishop [2018] EWCA Crim 27; [2019] 1 WLR 2489.
  • Missing evidence rarely forecloses section 79: destroyed exhibits, unavailable devices, and foregone forensic testing are serious considerations, but they do not automatically make a fair trial unlikely, particularly where directions and burden-of-proof principles can address prejudice (supported by R v Watson [2023] EWCA Crim 1016).
  • Wider charging consequences: the Court’s retrial order on an indictment including perjury/perverting the course of justice underscores that a successful section 76 application may reshape the case beyond the original count, especially where alleged staging or false accounts are central to the new evidential picture.

4. Complex Concepts Simplified

  • Quashing an acquittal / “double jeopardy” exception: Normally, an acquittal ends the case. The Criminal Justice Act 2003 creates a narrow exception for certain serious offences (including murder) where genuinely new and compelling evidence emerges.
  • “New and compelling evidence” (section 78): “New” means it was not used at the earlier trial. “Compelling” is defined: it must be reliable, substantial, and highly probative of guilt in light of what was disputed at trial. It does not have to guarantee conviction.
  • “Interests of justice” (section 79): Even with compelling evidence, the Court must ask whether ordering a retrial is fair overall—especially whether current circumstances make a fair trial unlikely.
  • ABE interview: “Achieving Best Evidence” is the structured method for recording interviews of children/vulnerable witnesses; recordings may be used in criminal proceedings.
  • Reporting restrictions (section 82 CJA 2003) and youth anonymity (section 45A YJCEA 1999): The Court can restrict publication to protect the integrity of a retrial and can prohibit identifying a child witness.

5. Conclusion

R v Rhodes confirms a robust yet principled approach to the Criminal Justice Act 2003’s exceptional power to reopen acquittals. The Court held that a child witness’s later ABE evidence, though directly contradicting earlier accounts central to an acquittal, can still be “new and compelling” where its reliability is supported by context, and where defence criticisms are substantial but not conclusively fatal.

Equally, the judgment demonstrates that “interests of justice” does not set an unattainable perfection standard for retrials years later: missing evidence and lost forensic opportunities may be argued at trial, but will not necessarily make fairness “unlikely” where the adversarial process and jury directions can manage the risk of prejudice.