B(J), R. v [2009] EWCA Crim 1036

[2009] EWCA Crim 1036
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 14 May 2009
Strand
London, WC2A 2LL
B e f o r e:
THE VICE PRESIDENT
(LORD JUSTICE HUGHES)
MR JUSTICE OPENSHAW
MR JUSTICE HOLROYDE
Between
R E G I N ACrownv
Between
B(J)
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr M Dennis QC and Miss K Robinson appeared for Applicant CrownMr E Rees QC and Mr S Rose appeared for Respondent SUMMARY OF
JUDGMENT
[1]THE VICE PRESIDENT: This is a summary of a longer judgment given today. We give this summary because there must be reporting restrictions on the main judgment to protect against the risk of prejudice to the administration of justice in connected trials which are still outstanding. This judgment may be reported in official law reports, but only under the name R v B(J).[2]B(J) was acquitted of offences of great danger and violence committed in the course of a single expedition. He had been tried with two others. All of them denied any part in the attacks. The other two were convicted of involvement.[3]Subsequently, one of the co-accused entered into an agreement under section 74 of the Serious Organised Crime and Police Act 2005. He has made statements in which he says that he was present, albeit reluctantly and on his own account not participating. He implicates B(J) as participating, together with the third defendant, and he further implicates another man in planning the offences.[4]The Crown applies pursuant to section 76 of the Criminal Justice Act 2003 for an order quashing the acquittals of B(J) and directing his retrial. Such an application is to be granted if, but only if:(i) There is new and compelling evidence against the acquitted person (section 78) and.(ii) It is in interests of justice for there to be such an order (section 79).[5]The evidence advanced as compelling new evidence is that of the former co-accused.[6]The evidence is new. It was not available to the Crown at trial. The statute provides that evidence is compelling if:(i) It is reliable;(ii) It is substantial; and(iii) In the context of the outstanding issues it appears highly probative of the case against the acquitted person.[7]This evidence is substantial in the sense that if true it is an eyewitness account of B(J) being present at and actively participating in the offences. It goes to the issue of whether he was or was not there and participating. The issue in this application is whether it is reliable and highly probative. Those questions in this case go together. In the context of this case, if the evidence is reliable and true it is highly probative of the guilt of B(J).[8]The Crown says that:(i) The evidence is perfectly capable of being true, notwithstanding that it is that of an accomplice and notwithstanding that it is offered pursuant to an agreement under which he can hope for a substantial reduction in his sentence;(ii) It is shown to be reliable because it is corroborated by the known facts of the night of the offences; and(iii) It is shown to be reliable because it is corroborated by the evidence of three men.[9]We do not doubt that evidence of this kind is capable of being reliable. If there had been no previous trial and acquittal and the Crown were starting a prosecution relying upon it there would be a case for B(J) to answer. It may be that taken overall it could properly be described as a strong case, at least if the co-accused's evidence was true. This is not, however, the test. Section 76 represents a fundamental departure from the age-old rule, for which there is excellent and obvious justification in the public interest, that there should be a single trial of criminal allegations, with all the evidence on both sides presented, and that the result, whether conviction or acquittal, should be final, subject to any appeal by either side. The departure represented by the new law was described by the Law Commission in the following terms when it was under discussion:
"Any exception [to the double jeopardy rule] must, however, be limited to those types of cases where the damage to the credibility of the criminal justice system by an apparently illegitimate acquittal is manifest, and so serious that it overrides the values implicit in the rule against double jeopardy."
Parliament might of course have adopted a different approach, but it did not, as the use of the expression "compelling" demonstrates. The Director of Public Prosecution has subsequently indicated that he would only proceed with applications of this kind where as a result of the new evidence a conviction is highly probable and any acquittal by a jury at the subsequent trial would appear to be perverse. We are in no sense bound by that approach, but it is in fact directly consonant with the scheme of the statute. This court said as much in R v A [2008] EWCA Crim. 2908, at paragraph 28:
"We believe that this guidance is entirely appropriate, and consistent with the relevant legislative framework, and reflects a proper appreciation of the continuing (but not absolute) importance of finality in the criminal justice process. We add, however, that the view of the Director that it is in the public interest for the application to proceed, while a pre-requisite to the application, is not conclusive of it (R v Miell [2008] 1 WLR 627). The court must form its own view whether the statutory requirements are met, independently of him."
Accordingly, the question is not whether the evidence of the co-accused may be reliable. It is whether it is reliable. In this context the test must take its colour from the use of the governing expression "new and compelling evidence".[10]We have analysed the facts of this case in our detailed judgment. Because some persons still face trial for related allegations all parties are agreed that any publication of that judgment would court a substantial risk of prejudice to the administration of justice in those trials. We therefore order, pursuant to section 4(2) of the Contempt of Court Act 1981, that that main judgment may not be reported in any form, including official law reports, until this court makes further order permitting it. We will make such a further order when the related proceedings are completed and time for any relevant appeal has expired. Application for such further order may be made in writing to the Clerk to Hughes LJ. It should be made jointly by the Crown and counsel for B(J), and any other defendant in related proceedings must be given the opportunity either to agree or to give reasons for disagreement in writing. We will then consider whether any further oral argument is necessary.[11]For the purposes of this summary it is enough to say that the evidence of the co-accused, although capable in principle of being true, falls far short of being shown to be reliable. First, it is the statement of a man with a powerful self-interest to serve by reason of the Serious Organised Crime and Police Act agreement and the demonstrated hope that he will achieve a review and reduction of his own sentence. Second, it is the statement of an accomplice who has made it clear that he contends not only that he should be rewarded for giving information but also that his sentence was passed on a wrong basis as to his role in these offences. His assertion that his role was minimal is, on the facts of this case, intimately bound up with his contention that it was B(J) and not himself who took an active role. The evidence of an accomplice who is seeking such advantages can of course be true and we leave open the question whether on other facts it might be demonstrated to be reliable. But in the present case it is not so demonstrated. It is, on the contrary, characterised by present implausibility and past fluent lying. Contrary to the verdict of the jury upon him, the co-accused's evidence does not amount to an admission that he was guilty. It does indeed conform to the known facts, but these were all proved at the trial and are not open to dispute. A true account will of course conform to them, but so will a false account. The suggested corroboration, on inspection, is either related to alleged participants other than B(J) or has over it the same question marks as there are about the co-accused.[12]For these reasons, given in greater detail in our main judgment, we refuse the Crown's application to quash the acquittals.

Cited in 3 later judgments