R v D

Factual and Procedural Background

The Crown, with the written consent of the Director of Public Prosecutions, applied under Part 10 of the Criminal Justice Act 2003 to quash the acquittal of the Defendant and order his retrial for the murder of a young woman committed in 1989. The Defendant was originally tried twice in 1991 for the murder; both trials ended with juries failing to reach a verdict, and the Crown ultimately offered no evidence, resulting in a recorded verdict of not guilty. The Crown contends that new and compelling evidence has since emerged, justifying the quashing of the acquittal and a retrial pursuant to the statutory provisions enacted in 2005.

Legal Issues Presented

1. Whether the new evidence against the Defendant qualifies as "new and compelling" under Part 10 of the Criminal Justice Act 2003, justifying quashing the acquittal and ordering a retrial.
2. Whether it is in the interests of justice to order a retrial, considering factors such as fairness, publicity, delay, and the Defendant's reliance on the rule against double jeopardy.
3. Whether ordering a retrial would be consistent with the United Kingdom's obligations under European law, specifically the principle of ne bis in idem.
4. Whether the Defendant's confessions and plea of guilty to perjury, made under a belief that he could not be retried for murder, render a retrial unjust or unfair.

Arguments of the Parties

Crown's Arguments

• The murder is a qualifying offence under Part 10 of the Criminal Justice Act 2003, permitting retrial.
• The Defendant's confessions and plea of guilty to perjury constitute new and compelling evidence.
• A retrial would not violate the UK's obligations under Articles 31 and 34 of the Treaty on European Union concerning ne bis in idem.
• It is in the interests of justice to retry the Defendant to ensure that the guilty are convicted, provided the trial is fair.
• A fair trial remains possible despite publicity and delay; the evidence and exhibits from the original trials are preserved and admissions regarding them have been made.
• The delay in applying for retrial is not unreasonable and comparable to delays in historic offence prosecutions.

Defendant's Arguments

• The Defendant concedes the evidence is new and that a retrial would not conflict with European law.
• However, the Defendant argues that a retrial would not be in the interests of justice for three reasons:
• It would be unfair to prejudice the Defendant with confessions and a perjury plea made under the belief he could not be retried for murder.
• A fair trial is unlikely due to prejudicial publicity and unavoidable references to previous trials.
• The extensive delay prior to the retrial application renders a retrial contrary to the interests of justice.
• The Defendant relies on the Law Commission’s qualification that it may be unjust to reopen acquittals where the Defendant acted in reliance on the assumption of immunity from retrial.
• The Defendant invokes the case of R v Kirk to argue that evidence obtained without proper awareness of the seriousness of the investigation should not be admitted, analogising it to his confessions made under a mistaken belief about retrial risk.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by outlining the statutory framework under Part 10 of the Criminal Justice Act 2003, which permits retrial of qualifying serious offences, including murder, when new and compelling evidence emerges. The court noted the Defendant's prior acquittals and the Crown's application supported by the Director of Public Prosecutions.

The court examined the evidence adduced at the original trials and contrasted it with the new evidence, consisting primarily of the Defendant's multiple confessions to prison officers and others, and his guilty plea to perjury related to the murder trials. The court found this evidence to be both new (not previously adduced) and compelling, given its reliability, substance, and probative value.

Regarding fairness and the interests of justice, the court considered the Defendant's argument that his confessions and plea were made under the belief that retrial was impossible due to the double jeopardy rule. The court rejected this as a bar to retrial, reasoning that the Defendant was aware of the risk of prosecution for perjury and of possible changes to the double jeopardy rule. The court found no direct unfairness analogous to the circumstances in R v Kirk.

On the issue of publicity, the court acknowledged extensive media coverage but held that accepted jury management techniques could mitigate prejudice, and that informing jurors of the retrial would not necessarily taint their impartiality. The statutory presumption arising from the Defendant's perjury conviction further diminished the impact of publicity concerns.

Delay was addressed, with the court distinguishing the delay between acquittal and retrial from other types of delay, finding no qualitative difference that would render retrial unfair. The court held that the delay was not unreasonable and that long delays are not uncommon in historic offence prosecutions.

The court accepted that the Defendant's confessions may have been influenced by a desire for psychiatric help and that he might not have confessed had he known retrial was possible. However, this did not render retrial unjust; rather, it was a consideration weighed against the public interest in ensuring justice in serious cases.

Ultimately, the court emphasized the unique gravity of murder as a qualifying offence and the public interest in correcting miscarriages of justice where new compelling evidence arises. The court found no injustice in applying the exception to the double jeopardy rule in this case.

Holding and Implications

The court GRANTED the Crown’s application, quashed the Defendant’s acquittal, and ordered a retrial for the murder offence pursuant to Part 10 of the Criminal Justice Act 2003.

This decision directly affects the parties by exposing the Defendant to retrial despite prior acquittals, based on new and compelling evidence. The court did not establish new legal precedent beyond the statutory provisions but confirmed the practical application of the double jeopardy exception under the 2003 Act. It underscores the balance between protecting defendants from multiple jeopardy and ensuring justice in serious criminal cases where compelling new evidence emerges.