REGINA v PAUL GOWANS BARRY KENNETH HILLMAN

Factual and Procedural Background

On 29th January 2000, the appellants attacked and robbed a pizza delivery man, who sustained severe head injuries causing a subdural hematoma and a comatosed state from which he never recovered. Both appellants pleaded guilty to robbery and were convicted of causing grievous bodily harm with intent in August 2000, receiving substantial prison sentences. The victim subsequently died from an infection contracted during invasive medical procedures necessitated by the injuries inflicted by the appellants. The appellants were then charged with murder. After a jury trial in August 2001, both were convicted of murder and sentenced to life imprisonment with minimum terms specified. Their appeals against conviction were dismissed in December 2003.

The case was referred to the court by the Criminal Cases Review Commission (CCRC) upon discovering that the prosecution had proceeded without the required consent of the Attorney-General under the Law Reform (Year and a Day Rule) Act 1996. There was no record of such consent having been sought or granted. This procedural irregularity prompted the current legal proceedings.

Legal Issues Presented

1. Whether the failure to obtain the Attorney-General's consent for instituting murder proceedings under the Law Reform (Year and a Day Rule) Act 1996 renders the original prosecution and conviction null and void.
2. Whether a new trial (venire de novo) should be ordered despite the procedural irregularity.
3. Whether the appellants should be retried or if the court should exercise discretion to prevent a retrial in the interests of justice.

Arguments of the Parties

Crown Prosecution Service's Arguments

• It is in the public interest that those charged with murder be tried and convicted if guilty.
• The delay in bringing the case again should not prevent a retrial, even though it is substantial and not the fault of the appellants.
• The failure to obtain consent is acknowledged but does not negate the strength of the prosecution's case or the necessity of a trial.

Appellants' Arguments

• This would be the third trial for the same incident, with the appellants having already served many years in custody.
• There was no intention to kill, and causation of death remains in dispute.
• One appellant is nearing potential parole in an open prison, and a retrial could jeopardize his progress and release prospects.
• The other appellant has a different risk profile due to subsequent convictions and is currently in closed conditions.
• The appellants should not suffer detriment due to the procedural error which was not their fault.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Angel [1968] 1 WLR 669	Proceedings without required prosecutorial consent are a nullity.	Used to support the conclusion that failure to obtain the Attorney-General's consent invalidates the prosecution.
R v Pearce [1981] 72 Cr App R 295	Conviction cannot stand if consent was not obtained for amended charges requiring separate consent.	Supported the decision to set aside and annul the convictions due to procedural irregularity.
R v Booth (1999) 1 Cr App R 457	Procedural irregularities related to consent vitiate the entire trial.	Reinforced the court’s power to annul convictions when consent requirements are not met.

Court's Reasoning and Analysis

The court acknowledged that the failure to obtain the Attorney-General's consent for prosecution under the Law Reform (Year and a Day Rule) Act 1996 is a fundamental procedural irregularity rendering the original proceedings a nullity. This conclusion is supported by established precedent where similar failures to obtain required consent invalidated prosecutions.

Despite this, the court considered the strong public interest in ensuring that individuals charged with murder are properly tried. The appellants had been properly charged and convicted based on substantial evidence, including medical testimony on causation. The court also noted the appellants’ personal circumstances, including time already served and current prison conditions, and sought to avoid unfair prejudice in the retrial process.

Balancing these factors, the court exercised its discretion to order a venire de novo, allowing a new trial to proceed. It emphasized that any fresh medical evidence disclosed could affect future decisions. The court also directed that the appellants' current status, including parole considerations, should not be adversely affected by this decision.

The court expressed concern about the procedural failure and welcomed assurances that improved supervisory mechanisms are now in place to prevent recurrence.

Holding and Implications

The court set aside and annulled the appellants' convictions and ordered a new trial on the charge of murder.

This decision means the appellants will be retried, but their current prison conditions and progress towards release should be preserved and not adversely impacted by the retrial. The ruling underscores the necessity of obtaining prosecutorial consent under the relevant statute and affirms that failure to do so vitiates the original trial. No new legal precedent was established beyond reaffirming existing principles related to prosecutorial consent requirements.