R v Robert Rhodes [2024] EWCA Crim 1411

[2024] EWCA Crim 1411Case No 202402766 B4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE TOPOLSKI KC
T20167266
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/11/2024
Before
LORD JUSTICE WILLIAM DAVISMRS JUSTICE STACEYHIS HONOUR JUDGE SHAUN SMITH KC
Between
REXApplicantROBERT RHODESRespondent
John Price KC and Elizabeth Cobb for ApplicantNina Grahame KC and Ruth Jones for RespondentHearing Hearing date: 7th November 2024
Approved JudgmentThis judgment was handed down remotely at 12.00pm on Monday 25 th November 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives(see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html)..............................WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.Pursuant to section 45A of the Youth Justice and Criminal Evidence Act 1999 no matter relating to the witness referred to as R shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as being concerned in the proceedings. Those matters include (a)the person's name, (b)the person's address, (c)the identity of any school or other educational establishment attended by the person, (d)the identity of any place of work of the person, and (e)any still or moving picture of the person.

Introduction

[1]A significant witness at the trial was RHODES’ child who had been under 10 years old at the time. When their mother was killed, they were aged 9. We shall refer to them as R. R had been the subject of ABE interviews in 2016 and 2017. The first interview was played to the jury at the trial. R was not required to give oral evidence. That did not mean that their evidence was not important: rather, the reverse. Their evidence was that their mother and RHODES had been in the kitchen when they had been in another room watching television. They heard their mother screaming and shouting at RHODES. They went into the kitchen. They told their mother to stop. Their mother picked up a knife. The mother used the knife deliberately to wound R’s forearm. RHODES told R to leave and to go upstairs. R did so. As R was leaving the kitchen they saw their mother hit RHODES on the head with the blade of the knife. R said that they saw nothing else of what their mother did. They heard their father give a really bad groan following which they heard a sound similar to a coin dropping on the floor but louder. They came downstairs a few minutes later when RHODES called them to come down. At that point their father was covered in blood. They saw their mother’s legs through an open door.[2]Not everything in R’s ABE interviews was agreed. However, the critical parts of their evidence – the mother being the person who armed herself with a knife and wounded R and the mother then attacking RHODES with the knife – were not disputed. The child’s evidence provided support for RHODES’ case that he had been under attack from his wife who was armed with a knife. The prosecution case at trial relied on the proposition that RHODES account of how his wife had come to sustain her fatal injury was implausible. His case was that there came a point at which he was able to wrest the knife away from his wife. He pushed her away. She came back towards him apparently out of control. His initial account to the police and as given in his first defence statement was that he hit out at her with the knife in his hand. With a blow from the knife delivered when he was facing his wife, he inflicted the fatal wound. In a second defence statement, RHODES said that he had pushed the knife into one side of his wife’s neck. The tip of the blade had come out at the other side of her neck. When he pushed her backwards with him still holding the knife, the knife came out so as to cut her throat. This was his account at the trial.[3]The prosecution called evidence from two pathologists. They found that the wound to the victim’s neck was very deep. It cut through the oesophagus and the windpipe. Their opinion was that the wound had been caused by a sweeping motion of a blade across the front of the neck. They favoured the wound having been caused when RHODES was behind his wife. This was in part because the neck was extended when the injury was caused. One of the prosecution pathologists considered the account given by RHODES in his second defence statement. He concluded that this account was implausible. It did not explain the clean cuts through internal structures such as the oesophagus. Had the injury been caused as described by RHODES, there would have been irregularity of the surface wound.[4]A pathologist was called as part of RHODES case at the trial. He considered that it was equally feasible for the fatal injury to have been caused by someone standing face to face with the victim as it was for the assailant to have been behind the victim. His final position was that he favoured the former explanation. He concluded that the fatal wound could have been caused in the manner described by RHODES at trial.[5]The knife used to inflict the fatal injury was examined by forensic scientists with expertise in assessing the sharpness of knife blades. The scientist instructed by the prosecution concluded that, when using the knife in question, it was not plausible that the fatal wound had been caused after the knife had stabbed into and through the neck. She did not consider that sufficient force could be generated to allow the injury to be caused in that manner. The defence scientist’s view was that the mechanism put forward by RHODES was possible although a very high degree of force would have been required.[6]The evidential landscape of the case now has changed substantially. In 2022 and 2023 R provided further ABE interviews. They were then aged 15 and 16. Their account was very different to the ones given in 2016 and 2017. Inter alia, they did not say that they had seen their mother with a knife or that their mother had inflicted a wound on their arm with that knife. Rather, they said that RHODES had cut their arm deliberately after their mother had been killed in order to create a false picture of what their mother had done. Whilst they did not describe how RHODES had caused the death of their mother, the obvious inference to be drawn from their new account was that RHODES had not been under attack as he had described at the trial in 2017. That is the context in which the prosecution applied to quash RHODES acquittal pursuant to section 76 of the Criminal Justice Act 2003.[7]At the conclusion of the hearing of the application on 7 November 2024 we announced that we granted the prosecution application. We quashed the acquittal. We ordered a retrial of RHODES on an indictment containing five counts including a count of murder. The other counts reflect the allegation that the wound on R’s arm was inflicted by RHODES and the allegations that he sought to pervert the course of public justice and committed perjury in earlier proceedings. We ordered that he was to be arraigned on that indictment within two months of the hearing. We said that we would provide written reasons in due course. These are our detailed reasons for granting the application.[8]We set out below what we consider to be the most important factual matters which arose from the application. We have not reviewed in writing all of the matters raised in the written application and the written submissions placed before us. We make clear that our decision was based on a full reading of all of the material. We viewed the relevant parts of the ABE interviews of R.

The legal framework

[9]The relevant statutory provisions are set out in sections 75 to 79 of the 2003 Act. Section 75 identifies the class of case in which an acquittal may be quashed and a retrial ordered. The offence of murder is one of the offences to which the provision applies. Section 76 requires that the Director of Public Prosecutions has given his consent to an application to quash an acquittal. That has been done in this case. Where this court is satisfied that the requirements of sections 78 and 79 of the Act are met, the court must made the order for which application is made. Otherwise, the court must dismiss the application.[10]Insofar as is relevant to these proceedings, sections 78 and 79 of the Act provide as follows:
“78 New and compelling evidence (1)The requirements of this section are met if there is new and compelling evidence against the acquitted person in relation to the qualifying offence. (2)Evidence is new if it was not adduced in the proceedings in which the person was acquitted (nor, if those were appeal proceedings, in earlier proceedings to which the appeal related). (3)Evidence is compelling if— (a)it is reliable, (b)it is substantial, and (c)in the context of the outstanding issues, it appears highly probative of the case against the acquitted person. (4)The outstanding issues are the issues in dispute in the proceedings in which the person was acquitted and, if those were appeal proceedings, any other issues remaining in dispute from earlier proceedings to which the appeal related. (5)For the purposes of this section, it is irrelevant whether any evidence would have been admissible in earlier proceedings against the acquitted person. 79 Interests of justice (1)The requirements of this section are met if in all the circumstances it is in the interests of justice for the court to make the order under section 77. (2)That question is to be determined having regard in particular to— (a)whether existing circumstances make a fair trial unlikely; (b)for the purposes of that question and otherwise, the length of time since the qualifying offence was allegedly committed; (c)whether it is likely that the new evidence would have been adduced in the earlier proceedings against the acquitted person but for a failure by an officer or by a prosecutor to act with due diligence or expedition; (d)whether, since those proceedings or, if later, since the commencement of this Part, any officer or prosecutor has failed to act with due diligence or expedition…”
In relation to the application in this case, the primary issue in relation to section 78 is whether the new evidence provided by R is reliable. The question to be addressed in relation to the interests of justice is whether existing circumstances made a fair trial of a count of murder unlikely.[11]The proper approach to assessing an application was set out by

Lord Judge CJ in R v Dobson [2011] EWCA Crim 1256 at [20] and [21]:

“.…“compelling evidence” for the purposes of section 78 is defined in the section itself. It does not mean that the evidence must be irresistible, or that absolute proof of guilt is required. In other words, the court should not and is certainly not required to usurp the function of the jury, or, if a new trial is ordered, to indicate to the jury what the verdict should be. Our attention has been drawn to the observations of the Vice President, Lord Justice Hughes, in R v (G), B (S) [2009] EWCA Crim 1207 where the proposed new evidence, of a co-accused who had been convicted at the original trial, did not satisfy the test of reliability. At para 5 of the abbreviated judgment, the Vice President observed that it is “only where there is compelling new evidence of guilt, of the kind which cannot realistically be disputed, that the exceptional step of quashing an acquittal will be justified”
. The purpose of this observation, as para 9 makes clear, was to highlight that the quashing of an acquittal is an exceptional step, which indeed it is, and can only be ordered if the statutory requirement in relation to the “reliability” of the new evidence is clearly established. 21. However the legislative structure does not suggest that availability of a realistic defence argument which may serve to undermine the reliability or probative value of the new evidence must, of itself, preclude an order quashing the acquittal. It must, of course, be carefully analysed, and given its proper weight. If the argument, or indeed any defence evidence, leads the court to conclude that the new evidence is not, after all, as reliable or substantial as it was thought to be, or that it no longer appears to be highly probative of guilt, then the court cannot be satisfied that the statutory test has been met. That is a fact specific decision. In the end, there are three defined elements: provided the new evidence is reliable, substantial, and appears to be highly probative, for the purposes of section 78 it is compelling: otherwise it is not.” The case in which the then Vice President made his observations was unusual on its facts. In the original trial there were three defendants charged with murder. Two were acquitted. The third defendant claimed that he had not been at the scene of the murder. He was disbelieved by the jury. He then entered an agreement pursuant to section 74 of the Serious Organised Crime and Police Act 2005. One part of the agreement involved him providing evidence against the two defendants with whom he had stood trial. He was described as “manipulative and cynical” because his motive in giving evidence was to ensure a substantial reduction in his sentence. By reference to the substance of the evidence he was prepared to give, he was said to be “a fluent and circumstantial liar who says whatever suits him”.[12]In R v Bishop [2018] EWCA Crim 27; [2019] 1 W.L.R. 2489, Sir Brian Leveson P. summarised the approach of Lord Judge CJ in Dobson, saying that there was no necessity that the new evidence should be “conclusive or unanswerable”. In that case, new scientific evidence was found to be compelling although the defence submitted there were answers to it, some of which were explored by way of cross-examination in the hearing before the Court of Appeal. The matters raised by the defence were matters that could properly be explored at a retrial and would be for the jury to determine after the evidence had been tested in court. This is not a case where there has been new scientific evidence. The approach in Dobson nonetheless applies.

The new evidence

[13]R had a particular school friend in whom they had confided from when they first met in October or November 2018. At an early point in their friendship R told him about the death of their mother. At that stage they gave the account that they had given to the police in 2016 and 2017. At some point in the later part of 2021 R told their school friend that what they had told him about their mother’s death was not true. They then said that their father had killed their mother after which he had cut their arm so as to create a story consistent with him acting in defence of R. In addition, at their father’s behest they had cut his back to provide the basis of his account that he had been under attack.[14]At around the same time R was seeing a clinical psychologist. On 18 November 2021 R gave a full account of their mother’s death to the psychologist. R said that, on the Monday before their mother’s death, they had been in the car with RHODES. He had said “do you want to get rid of mummy?” to which they had said “yes”. R said that things had been bad at home since their mother had revealed that she was having an affair with another man and moved out of the family home. R’s relationship with their mother was poor. R explained that the plan was for R to say to their mother “I have something for you, close your eyes.” R then left the room. After a while RHODES called R back. He cut R's arm. He got R to stab him in the back. He stabbed himself on the head. He then told R to go upstairs and to call an ambulance.[15]The psychologist told the police about R’s disclosure. R was interviewed by the police on 28 January 2022 and 26 January 2023. In the first interview on 28 January 2022 the police, having obtained a plan of the family home in 2016 as R could remember it, asked R to give their account of what happened when their mother was killed. R said this:
“…me and my dad went the Monday before we, we were like, we kinda made a plan kinda thing….that so my mum and dad, my mum used to come round, like cos she was living with her mum at the time cos they were like having a divorce and stuff and, so she was living with her mum and she would come round most nights…..and um so um she came round er that day….Mum and dad started arguing as normal and then I, I was told by him to do, was get um the picture I drew for her, um and so I, I told her to close her eyes and hold out her hands. She was in the dining room (points to drawing) with my dad and I went into the living room (crying) and then I heard gurgling and like a thud and yeah my dad then told me to go up the stairs…... So I went upstairs um and ….into the bathroom and …. locked the door and, like I could hear dad doing stuff downstairs and he called me down the stairs and he told me that I had to like stab him in the back like here (indicates with their left arm over their right shoulder) which I had to do and so I did, um like wasn’t nice and then he told me that he had to cut me as well so I, I put, I said I didn’t want to be cut and he told me that we had to because it would all be done and then otherwise he’d get put in prison and I, I didn’t want to but I, I put my arm out like, he was stood there and I was stood there (indicates on drawing) and I put my arm out on the wall… and he reached across and cut it and then, I, he told me I had to go call the police and stuff and to like stick to the story and stuff so I went upstairs and into their room and there was like a, what’s it called, it’s not a box, it’s like a cupboard thing, bedside table next to there, it had like a phone, a house phone which I called them on but I was, I felt really dizzy and stuff, so when my dad came up …..and I called the police and stuff and they came and then, yeah they like put stuff round my arm and then like tried to wrap dad’s head up and stuff …..and then when I went down the stairs cos I could, I could still see into the dining room, I could see my mum’s legs and, and we left the house…”
Having provided this account without any substantive interruption or questions, the police spent a considerable time investigating the detail of R’s account. R said that they had discussed what they were to tell the police. R was to say that they were in the living room when they heard arguing. As a result, R came through to where RHODES and their mother were. R’s mother then had cut R with the knife. RHODES had told R to go upstairs. RHODES’ mantra was “stick to the plan”.[16]R said that, when they did go into the dining room where RHODES and their mother were, RHODES gave R what they called “the look”. R had told their mother that they had drawn a picture. She was to close her eyes and hold out her hands. R said that they then left the room. As R did so, they saw RHODES moving towards a work surface where there was a knife. When R was next door, they heard gurgling sounds which did not last long. There was then a thud which R assumed was their mother.[17]RHODES had blood on him after the event. He had a lot of blood on his hands, particularly on his right hand. He asked R to put the knife into his shoulder. He told R to “push as hard as you can”. He gave R the knife which R had seen earlier in the kitchen. When he turned round, R could see blood on his head. He pointed at where he wanted R to put the knife. R gave a full description of what they did in a second interview in January 2022:
“Q Tell me exactly what you did. R I… um, I think put it… inaudible… I think I started crying. ‘Cos I didn’t wanna… visibly upset, voice shakes… hurt him. And then, I think he did tell me that it was ok and stuff. And so I did it. I didn’t like it. It, it… I could feel things through it, like things snapping and I could hear, like a, like squelch and it was really… (visibly upset, pauses)… yeah. Q How far in did you push the knife? R I don’t know how far exactly….But I think it was, like, halfway or over halfway. Q Ok. And… was… did you push it quickly or was it slowly? R I, I think I pushed it slowly ‘cos it was really, like, hard. And I was already feeling quite dizzy. And, so, I was, like, I think I tried to push it in… quickly. But it, it... it wasn’t very fast. Q Ok. How tall’s your dad? R Erm, 6ft something. ….. Q So, how was dad’s body positioned? I know he was… R He was… Q … he was away from you. R … he was crouched down, I think. Like… on his, on one knee. And then… like… it’s really bad, but like that, in a way? Like crouched down.”
He then said that he needed to cut R. R told him that they did not want him to do that. R said that RHODES had said “we’ve done it now, we’ve killed Mum”. He said that he had to cut R otherwise he would go to prison. Q How far in did you push the knife? Q Ok. And… was… did you push it quickly or was it slowly? Q Ok. How tall’s your dad? Q So, how was dad’s body positioned? I know he was…

R He was…

[18]R was further interviewed in January 2023. R was asked questions in relation to four topics: family life in the lead up to the death of their mother; the day of the incident; communication between R and RHODES after their mothers’ death; what R had said to other people before January 2022, in particular the psychologist. It is not necessary for our purposes to set out any particular matter relating to family history or the disclosures to others prior to the police interviews.[19]In respect of the events of 2 June 2016 R volunteered that the idea of telling their mother that R had a picture to give her and that R’s mother was to close her eyes and hold out her hands came from R rather than RHODES. This was contrary to what R had said in the interview in January 2022. R said that they had got this point wrong in the previous interview. R told the police that RHODES had given them a mobile telephone on which they could exchange messages. R did not know where this handset was now. The telephone was kept at RHODES’ mother’s house to which R would go from time to time. The messages were not detailed. RHODES told R to stick to the plan.

The submissions of the parties

[20]The prosecution submission is straightforward. The evidence provided by R in January 2022 and January 2023 is obviously new. They submit that it is credible, not least because it marries up with the pathological evidence in a way that RHODES account (as previously supported by R) does not. The evidence is highly probative of the case against RHODES. They invite the court to ask whether R’s evidence as it now is amounts to a confession of being an accessory to murder. If it does, it is compelling that R is willing to say what they have done. In relation to the interests of justice, the prosecution say that the only possible live issue is whether the circumstances as they are now make a fair trial unlikely. They submit that, insofar as evidence is no longer available, the trial process will protect the interests of RHODES.[21]On behalf of RHODES, it is argued that the application can be distinguished from cases where the court has quashed an acquittal. In those cases, the evidence called at the first trial generally remains unaltered. The new evidence (which very often is scientific evidence) adds to or explains the evidence called at the trial. In this case the new evidence comes from a witness who gave evidence at the trial albeit not one who gave live evidence. The witness’s new evidence is completely contrary to what they said previously. The situation is akin to that which arose in (G), B (S). It requires close scrutiny of what the witness now is saying.[22]Three core submissions are made in relation to the issue of reliability. First, the accounts given by R in 2016 and 2017 were detailed and in all significant respects consistent with each other. Those accounts were given by a young child who described their memory as being like a goldfish. For such a witness to provide a fictitious account with such detail and consistency would appear to be highly unlikely. Second, there are internal inconsistencies within the accounts given in 2022 and 2023. Three were particularly highlighted in the written submissions on behalf of RHODES. R said in their changed account that their father was responsible for much of the violence in the relationship with their mother. This was not something they had mentioned initially. The position emerged gradually. R had first said that the idea of getting the mother to shut her eyes so that R could get a picture came from their father but then changed their account so that it became their idea. R began by giving no detail of the plan which supposedly had been hatched a few days before the murder. R then changed their account with their apparent appreciation that they were engaging in a plot to kill their mother.[23]The third submission on which particular emphasis is placed is R’s description of inflicting a wound in their father’s back. We have set out above the detail of the account. On behalf of RHODES a pathologist, Dr Hamilton, not previously instructed in the case has reported on the wound which was present on RHODES’ back. He said this:
“The injury to [RHODES]’ shoulder is a shallow incised wound (slash wound). The most likely explanation for this is a knife blade (or other sharp object) being drawn across the skin. As I understand the interview transcripts, [R] describes stabbing [their] father to a depth of about half the length of the knife blade. In my opinion this mechanism would not be consistent with the injury present.”
The submission made is that the evidence of Dr Hamilton is determinative of a critical issue, namely whether R’s account of causing the injury to their father’s shoulder is capable of belief. R described inflicting a stab injury to the shoulder. R demonstrated a stabbing motion in the course of the ABE interview in January 2022. R spoke of the sound made when the knife entered their father’s shoulder. Dr Hamilton’s evidence shows that what appears on its face to be a convincing and persuasive account by R is impossible. The fact that this aspect of R’s evidence is demonstrably wrong means that no reliance can be placed on the other allegations R makes about what their father did and said. blade (or other sharp object) being drawn across the skin. As I understand the interview transcripts, [R] describes stabbing In my opinion this mechanism would not be consistent with the injury present.”

In my opinion this mechanism would not be consistent with the

[24]It is further submitted on behalf of RHODES that, even if R’s evidence could be regarded as compelling within the meaning of section 78 of the Act, the interests of justice run contrary to ordering a quashing of the acquittal and an order for a retrial. There is an accumulation of factors which mean that RHODES would be unlikely to have a fair trial. These include the inability to examine the wounds on RHODES and R and the absence of information about what material was available to R before they gave their accounts implicating their father. In oral submissions emphasis was placed on two issues. First, the mobile telephone which R alleges was used by their father to message them following the death of their mother is not available. In the absence of the telephone, it is impossible to assess the so-called coercion and influencing of R by RHODES. Second, although the scene was examined by forensic scientists with swabs being taken from many parts of the family home, the analysis of swabs was carried out in the light of the account given by R in the 2016 ABE interview. Thus, no analysis was carried out with a view to determining where R was cut. Once RHODES had been acquitted, all the swabs were destroyed which means that no analysis now is possible which might contradict the account given in 2022 by R. As a result, it is unlikely that RHODES could have a fair trial.

Discussion

[25]The factual background to the prosecution application is very unusual. The witness whose evidence has dramatically changed is not someone who has any clear motive to say what they now are saying to serve their own advantage. Unlike a person who was a defendant convicted in the original trial who has decided to incriminate others who were acquitted in that trial, R in effect was considered to be a victim of their mother’s violence. R emerged from the first trial with that status intact. In the evidence now intended to be called from R, R admits assisting their father to murder their mother. In 2022 R described RHODES saying to them “we’ve killed Mum” in the context of RHODES cutting their arm. That was the whole tenor of what R said to the police in their 2022 and 2023 interviews. At least implicitly R acknowledged that they were a party to the murder of their mother. As a matter of law R was below the age of criminal responsibility at the time. It is inconceivable that by the time of R’s later interviews R did not feel a clear sense of moral responsibility. The fact that R has admitted being involved in the murder of their mother in itself is a remarkable circumstance which supports the reliability of their account. The convicted accomplice in G, B(S) was manipulative and cynical. R’s position is the antithesis of manipulation and cynicism.[26]We accept that R’s accounts in 2016 and 2017 were generally consistent. The account R gave was not inherently complicated. Rather, it was relatively simple and straightforward. We do not consider that there is any conclusion as to the truth of the account given properly to be drawn from the fact that a young child gave the account they did. Insofar as it is of any significance, we consider that the interview in 2017 did add a significant feature which had not been mentioned previously, namely the injury caused by the deceased to RHODES’ back. To that extent, there was a lack of consistency. In fact, we consider that the point is of neutral effect. Taking matters in the round, we are satisfied that there is nothing inherently improbable in R having provided a fictitious narrative in 2016 and 2017. Put another way, we do not consider that the provision of that narrative in any appreciable sense supports a conclusion that it was accurate and reliable.[27]The developing narrative which emerged in the 2022 and 2023 interviews in our view does not support the conclusion for which RHODES argued. It is correct to observe that R in 2022 said that the idea of getting their mother to close her eyes in the belief that R was to give her something by way of a surprise came from RHODES. In 2023 R said that the notion was theirs. R did not do so as a result of any prompting or due to being presented with some evidence which contradicted their previous account. R volunteered that it had been their idea. This achieved nothing save to deepen the extent of their culpability. In our view this change in R’s account provides no support for the argument that their evidence now is unreliable. If anything, it tends to indicate that their account is reliable. Likewise, R initially had said in effect that they had not appreciated that their father planned to kill their mother. R went on to accept that they realised that this was the plan. Had R continued to be reluctant to acknowledge their appreciation of their father’s intentions, it might have undermined their account. But in due course R did accept complicity in a plot to kill. In the circumstances of this case that tends to support R’s reliability.[28]We accept that there is, to use the language of Dobson, “a realistic defence argument which may serve to undermine the reliability or probative value of the new evidence”. In this respect we refer to the evidence of the injury to RHODES’ back and the conclusion that Dr Hamilton reached in relation to R’s evidence about the infliction of that injury. However, we do not consider that Dr Hamilton’s evidence has the determinative effect for which RHODES contends. The following matters are relevant. First, when in 2017 R gave an account of RHODES sustaining the injury to his back at the hand of their mother R said this:
“Q…so did you see what Mum was doing when Dad screaming? R Punching, hitting and cutting. The main one I saw was when he was (goes to get up) leant against the wall and she shoved a knife through his back (touches their back over their left shoulder with their right hand) Luckily it, it was probably like it was too high for the heart and also on the wrong side, but it probably hurt, a lot….”
If accepted, Dr Hamilton’s evidence would demonstrate this account to be inconsistent with the injury sustained by RHODES. The shallow incised wound was not caused by anyone who “shoved a knife through his back”. Second, the photograph of RHODES’ back shows two injuries. One is a shallow incised wound. The other close to it is what appears to be a puncture wound. What the significance of the second wound might be is impossible to say save that it is an injury which cannot be described as a slash type injury. Third, whether R described stabbing to half the length of the blade of the knife is a moot point. R said that it was “halfway or over halfway”. No-one asked, “halfway of what?” This is not to say that there is no point to be made in relation to the injury to the back and what R said about it in 2022. Rather, we consider that the point is not determinative. R Punching, hitting and cutting. The main one I saw was when he was his back (touches their back over their left shoulder with their right hand) the wrong side, but it probably hurt, a lot….”

his back (touches their back over their left shoulder with their right hand)

[29]Taking into account all of the circumstances of R’s evidence emerging as it did some 5 or more years after their mother’s death, we are satisfied that the evidence is compelling within the meaning of section 78 of the 2003 Act.[30]In relation to whether it is in the interests of justice to quash the acquittal in 2017, we accept the proposition that this must be judged against the backdrop that there is compelling evidence against RHODES in relation to an offence of murder. Equally, the statutory scheme involves a two-stage process. It envisages a case in which there is compelling evidence in relation to a very serious allegation yet the power to quash an acquittal should not be exercised unless a fair trial will be likely.[31]We consider that the approach to section 79(2)(a) of the 2003 Act should be analogous to that adopted where a court is required to consider whether criminal proceedings should be stayed as an abuse of process. But the principles which have been developed in the abuse jurisdiction are not directly applicable. Where it is said that there is an abuse of process because the defendant cannot have a fair trial, the issue will be whether the defendant can show on the balance of probabilities that a fair trial will be impossible. In relation to section 79(2)(a) we have to have regard to whether the existing circumstances make a fair trial unlikely. This involves an evaluative exercise. Thus, the concept of the burden of proof lies on one party or the other is inapt. What remains relevant is the concept of the trial process being able to accommodate evidence being unavailable. This concept is relevant when considering the interests of justice by reference to section 79. The authorities on this topic were comprehensively reviewed by this court in R v Watson [2023] EWCA Crim 1016 at [51] et seq. It is not necessary for us to repeat that exercise. It is not unusual in criminal trials for a defendant to rely on gaps in the prosecution case such as a failure to take fingerprints or a failure to submit evidential material to forensic examination. The defendant will be able to argue that they should not be convicted because evidence which could have been available to the jury is not due to some prosecution failure. That will be a legitimate argument. The prosecution then must persuade the jury that the evidence, irrespective of what is missing, is sufficient to justify a safe conviction. The defendant’s position can and will be protected by proper directions to the jury on the burden and standard of proof and on the prohibition against speculation. We are satisfied that, taking into account the protections of the trial process, a fair trial of RHODES is likely.

Reporting restrictions

[32]On 3 June 2024, an order restricting publication relating to this application and the decision on it was made by this Court under section 82 of the Criminal Justice Act 2003. It remains necessary in the interests of justice and to avoid a substantial risk of prejudice to the administration of justice that the order should continue. There shall be no publication of the application or this judgment, or of any of the matters contained in it, until the conclusion of the retrial or further order of the Court, save to the extent that they are referred to during the retrial of RHODES, following, if necessary, a ruling at that retrial as to admissibility. The nature of the restriction is explained and printed in red in the frontispiece of this judgment. We make an order pursuant to section 45A of the Youth Justice and Criminal Evidence Act 1999 prohibiting the publication of any material which might identify R. This order will be subject to review in due course by the judge at the retrial of RHODES.