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Rhodes, R. v
Factual and Procedural Background
On 2 June 2016 the Defendant inflicted a fatal throat injury on the Victim at the family home. The Defendant was charged with murder and tried on a single count in May 2017. On 29 May 2017 the jury at The Court acquitted the Defendant, having accepted or left open that the Defendant may have been acting in defence of himself and/or the then-child Witness. At that trial the Witness's 2016 ABE interview was played but the Witness did not give live oral evidence. The prosecution relied on expert pathology and forensic evidence which the defence challenged.
In 2022 and 2023 the Witness (then aged 15–16) gave new ABE interviews in which they recanted critical parts of their earlier account and instead stated that the Defendant had killed the Victim and had afterwards caused wounds to the Witness and to himself to fabricate a defensive narrative. On the basis of those new interviews the prosecution applied to quash the 2017 acquittal under section 76 of the Criminal Justice Act 2003. On 7 November 2024 the court granted the prosecution's application, quashed the acquittal and ordered a retrial on an indictment containing five counts including murder; this summary sets out the reasons for that decision.
Legal Issues Presented
- Whether the Witness's 2022–2023 interviews constitute "new and compelling evidence" within the meaning of section 78 of the Criminal Justice Act 2003.
- Whether, in all the circumstances and having regard to section 79 of the Criminal Justice Act 2003, it is in the interests of justice to quash the acquittal and order a retrial (in particular whether existing circumstances make a fair trial unlikely).
Arguments of the Parties
Prosecution's Arguments
- The Witness's 2022 and 2023 interviews are clearly new and are credible; they align with the pathological evidence in ways that undermine the Defendant's trial account.
- The Witness's later admissions include an implicit admission of participation in the killing, which supports reliability.
- Given the compelling nature of the new evidence, the interests of justice favour quashing the acquittal; any evidential gaps can be managed and do not make a fair trial unlikely.
Defendant's Arguments
- The new evidence comes from a witness who previously gave an account at trial and whose later account is completely contrary; it requires close scrutiny and may be unreliable (analogy drawn with R v (G), B (S)).
- Three specific reliability points: (a) the earlier 2016–2017 accounts were detailed and consistent, (b) there are internal inconsistencies in the 2022–2023 accounts, and (c) expert pathology evidence (from a pathologist instructed for the defence) shows that the Witness's description of inflicting a stab wound to the Defendant's back is inconsistent with the actual shoulder injury.
- Even if the new evidence were compelling, the interests of justice point against quashing the acquittal because key material is unavailable (destroyed swabs, absence of the mobile phone alleged to contain messages) and the inability now to examine wounds and certain materials makes a fair retrial unlikely.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Dobson | Clarification that "compelling" evidence under s78 must be reliable, substantial and highly probative; it need not be irresistible or amount to absolute proof and the court must not usurp the jury's function. | The court applied Dobson's framework to assess whether the Witness's new evidence met the statutory test and emphasised careful analysis of possible defence explanations without substituting its view for a jury's. |
| R v (G), B (S) | Observation that quashing an acquittal is exceptional and generally justified only where there is compelling new evidence of the kind which cannot realistically be disputed. | The court distinguished that case on its facts (manipulative co-defendant) and treated the comparison as a reason to scrutinise reliability, not to preclude an order where the statutory test is met. |
| R v Bishop | Confirmation that new evidence need not be conclusive or unanswerable to be compelling; answers can be explored at retrial and tested by a jury. | The court noted Bishop's support for the Dobson approach and accepted that potential answers to the new evidence could be properly explored at retrial. |
| R v Watson | Review of authorities on whether missing or unavailable evidence makes a fair trial unlikely and how the trial process can accommodate evidential gaps. | The court relied on the principles reviewed in Watson when assessing whether destroyed or unavailable material meant a fair retrial was unlikely, concluding the trial process protections were sufficient. |
Court's Reasoning and Analysis
The court applied the statutory two-stage test under sections 78 and 79 of the Criminal Justice Act 2003.
On section 78 (new and compelling evidence) the court considered whether the Witness's 2022–2023 interviews were (a) new, (b) reliable, (c) substantial, and (d) highly probative of the outstanding issues from the 2017 trial. The court found the interviews were plainly new. In assessing reliability the court balanced the consistency and relative simplicity of the Witness's earlier accounts, the detailed and evolving later disclosures to a psychologist and to the police, the Witness's apparent admission of complicity (despite legal incapacity to be prosecuted at the time), and the extent to which the new account aligned with pathological opinion. The court considered and addressed specific challenges to reliability, including the defence pathologist's opinion that the Witness's description of stabbing the Defendant to some depth was inconsistent with the shallow incised wound photographed on the Defendant's shoulder. The court concluded that those points did not render the Witness's new evidence non-compelling: the 2016–2017 accounts did not on balance make the later account inherently improbable, the inconsistencies in details did not fatally undermine the later account, and the pathology point was not determinative in the round. The court therefore concluded the new evidence was reliable, substantial and highly probative and thus "compelling" under section 78.
On section 79 (interests of justice) the court evaluated whether existing circumstances made a fair trial unlikely. The court considered defence arguments about destroyed forensic swabs, the absence of the mobile telephone allegedly containing messages, and the inability to re-examine wounds. Applying principles analogous to those used when considering stays for abuse of process (and relying on the review in R v Watson), the court emphasised that the criminal trial process can and does accommodate gaps in evidence and that jury directions and the adversarial process can protect the Defendant's position. The court judged that, notwithstanding the missing material, a fair retrial was likely. Taking both stages together, the court was satisfied that the statutory requirements for quashing the acquittal and ordering a retrial were met.
The court also imposed continuing reporting restrictions under section 82 of the Criminal Justice Act 2003 and prohibited publication of any material likely to identify the Witness under section 45A of the Youth Justice and Criminal Evidence Act 1999.
Holding and Implications
QUASHED ACQUITTAL; RETRIAL ORDERED
Direct effect: The court quashed the 2017 acquittal and ordered that the Defendant be retried on an indictment containing five counts, including a count of murder and counts relating to the allegations that the Defendant inflicted the wound on the Witness, sought to pervert the course of public justice, and committed perjury. The Defendant is to be arraigned within two months of the hearing. Reporting restrictions and an order prohibiting publication likely to identify the Witness remain in place pending the retrial.
Broader implications: The decision applied existing statutory tests and authority on quashing acquittals; it did not purport to create new legal precedent beyond its application of the established section 78/79 framework to the particular facts of this case.
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