England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
In the matter of an application under
Part 10 of the Criminal Justice Act 2003

		Royal Courts of Justice Strand, London, WC2A 2LL
		Fri 16th June 2006

LORD PHILLIPS, CJ :

Introduction

1. Blackstone wrote that it was a "universal maxim of the common law of England that no man is brought into jeopardy of his life or limb more than once for the same offence" (4 Commentaries, pp 335-6). Following a report by the Law Commission (Law Com no 267) delivered in March 2001 important exceptions have now been made to that principle of our law. In particular, Part 10 of the Criminal Justice Act 2003 ('the Act') makes provision, in specified circumstances, for the quashing of an acquittal and the retrial of a defendant. Part 10 came into force on 4 April 2005. This is the first application to come before this court for an order pursuant to its provisions. At the end of the hearing we announced that the Crown's application would be granted and ordered the quashing of D's acquittal and his retrial. The following are our reasons for so doing.
2. The application is brought by the Crown with the consent of the Director of Public Prosecutions, given in writing on 10 November 2005. The Respondent is William Vincent D. Between 7 May 1991 and 23 May 1991 D stood trial for the murder of a young woman, Julie H, on 16 November 1989. The jury failed to agree and were discharged. A retrial was ordered. The retrial took place between 3 October 1991 and 16 October 1991. Again the jury could not agree and were discharged. At that stage the Crown formally offered no evidence and a 'not guilty' verdict was recorded. The Crown contends that there is available new and compelling evidence that requires the court to quash D's acquittal and order his retrial pursuant to the provisions of Part 10 of the 2003 Act.

The statutory provisions

3. Part 10 of the Act is entitled "Re-Trial for Serious Offences". Section 75 sets out the cases that may be re-tried. Section 75(1) provides that Part 10 applies:

"where a person has been acquitted of a qualifying offence in proceedings –

(a) on indictment in England and Wales … ."

Section 75(8) provides that "qualifying offence" means an offence listed in Part 1 of Schedule 5. Murder is the first offence listed in Part 1 of

Schedule 5. By section 75(6), Part 10 applies:

"whether the acquittal was before or after the passing of this Act."

4. Section 76 provides that a prosecutor may apply to the Court of Appeal ("the Court") for an order:

"(a) quashing a person's acquittal in proceedings within section 75(1), and

(b) ordering him to be retried for the qualifying offence."

An application under this provision can only be made with the written consent of the DPP (section 76(3)). Pursuant to section 79(4), such consent may only be given if the DPP is satisfied that:

"(a) there is evidence as respects which the requirements of section 78 appear to be met,

(b) it is in the public interest for the application to proceed, and

(c) any trial pursuant to an order on the application would not be inconsistent with obligations of the United Kingdom under Article 31 or 34 of the Treaty on European Union relating to the principle of ne bis in idem."

Not more than one application may be made under section 76(1) in relation to an acquittal (section 76(5)).

5. By section 77(1), when an application is made under section 76 the Court

"(a) if satisfied that the requirements of sections 78 and 79 are met, must make the order applied for;

(b) otherwise, must dismiss the application."

6. The requirements which must be met in order to make orders under section 76 are two fold:

i) there must be "new and compelling evidence" against the acquitted person in relation to the qualifying offence;

ii) it must be in the interests of justice for the court to make an order.

These requirements are dealt with in sections 78 and 79 of the Act.

7. Section 78 provides that:

"(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 (not, 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."

8. The relevant provisions of section 79 are as follows:

"(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."

The evidence at the trials

9. Mrs Julie H was last seen alive by anyone other than her killer at 1 a.m. on 16 November 1989, when her employer dropped her at her home. She was reported missing the next day. Her body was found by her mother, hidden behind a bath panel in her home, on 5 February 1990. The evidence adduced against D at each trial included the following. At 2.30 a.m. on 16 November he had told a friend that he 'might pop round to Julie's'. At 4 a.m. he was not in his bed, although he was found there, still fully clothed at 8.30 a.m. Keys and a fob that had belonged to Mrs H were found concealed beneath D's floorboards. The fob bore his fingerprints. 9 fibres were found on the blanket in which Mrs H's body had been wrapped, which matched a rugby shirt worn by D on the night of 16 November. He advanced possible explanations for some of these matters when interviewed by the police and at his trials. It is clear that, at each trial, the prosecution evidence failed to satisfy the necessary majority of the jury that D was guilty.

The new evidence

10. On 6 May 1998 D was sentenced to two concurrent sentences of seven years imprisonment for offences under section 18 of the Offences Against the Person Act 1861. These offences were not related to the murder. On a number of occasions between 8 March and 12 May 1999 D admitted to a prison officer that he had murdered Julie H. He referred to the fact that he had confessed his guilt in letters to a male friend, an ex-girl friend and to a nurse who had looked after him in hospital. In a witness statement made for the purpose of Children Act proceedings relating to his daughter on 20 April 1999 he stated:

"I have accepted that I have problems and I have spoken with the Prison Doctor and I have admitted that I was responsible for the death of Julie H. I stood trial at Newcastle Crown Court for her murder and was acquitted. I denied the offence and I accept that I lied."

11. On 15 October 1999 D was arrested on suspicion of perjury. In interview he admitted that he had killed Julie H and referred to making various confessions to her murder.
12. On 18 November 1999 D was charged with two counts of perjury – one in relation to each of his trials for the murder of Julie H. On 14 April 2000 he pleaded guilty to each count at the Teesside Crown Court and was sentenced to 6 years imprisonment on each count concurrent. His appeal against sentence was dismissed by this Court on 23 November 2000.

The Crown's case

13. The Crown's case is that the facts fall fairly and squarely within the provisions of Part 10 which require a retrial. Murder is a qualifying offence. The evidence of D's confessions and of his plea of guilty to perjury is both new and compelling. A new trial would not be inconsistent with the obligations of the United Kingdom under Articles 31 and 34 of the Treaty on European Unity relating to ne bis in idem. It is in the interests of justice that there should be a retrial. Those interests require that the guilty should be convicted, provided that there is no unfairness in the process.
14. A fair trial remains possible. The witness statements and exhibits at the original trials have been preserved; admissions were made at those trials as to the provenance, continuity and examination of those exhibits. Admissions were also made that the keys recovered from beneath D's floorboards fitted the locks of Julie H's house and that the fob bore D's fingerprints. The perjury file has been preserved and D has accepted the truth of the admissions that he made. The passage of time is, of itself, no impediment to the fairness of a retrial. The delay is no longer than that which often occurs in trials based on allegations of historic sexual abuse.

The case for the respondent

15. Mr Tim Owen QC appeared for D. He started by making some realistic and helpful concessions. The evidence of the confessions made by D and of his plea of guilty to perjury satisfied the requirement that the evidence be 'new'. On the facts of this case there would be no conflict with European Law if there were a retrial. Article 4(2) of Protocol 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms expressly permits an appellate court to reopen a case in accordance with the provisions of domestic law "if there is evidence of new or newly discovered facts". While the United Kingdom has signed this protocol, it has not yet ratified it, but the existence of the protocol demonstrates that there is no conflict between the Crown's application in this case and European law.
16. Mr Owen, while making no concession, advanced no positive challenge to the Crown's submission that the new evidence is 'compelling'.
17. Mr Owen's submissions focussed on the requirement imposed by section 79 of the Act that an order under section 77 should be 'in the interests of justice'. He submitted that an order would not be in the interests of justice for three reasons:

i) It would not be fair for D to be prejudiced by his confessions and his plea of guilty to perjury when these were made as a result of representations, or alternatively in reliance on a belief, that he could not and would not be tried again for murder;

ii) A fair trial would be unlikely because of (a) prejudicial publicity from acquittal to the present day and (b) the fact that there would be unavoidable reference to the previous trials.

iii) The periods of delay prior to the application under Part 10 have been so great as to render a retrial contrary to the interests of justice.

18. It is convenient to deal with Mr Owen's second and third points first, although he made it plain that these points were subsidiary to his first point.

Publicity

19. Mr Owen made two points about publicity, one general, the other particular. The general point was that there had been much prejudicial publicity about D that painted him as the murderer of Julie H, so that it was unlikely that he would receive a fair trial. The particular point was that the jury would inevitably be aware that D was being retried after acquittal and that some would know that it was to be inferred from this that an appeal court must have been satisfied that there was 'compelling evidence' that he was guilty.
20. It is common ground that there has been considerable publicity about D's case, intense publicity in Teeside where the murder occurred, but also national publicity. There was national publicity when he pleaded guilty to perjury, television programmes in 2005 and national press coverage in 2005, continuing into 2006.
21. In R v Kevin Maxwell and Ian Maxwell (1995 – unreported) Phillips J, in rejecting defence submissions that publicity would preclude a fair trial, said:

"It seems to me that the court will only be justified in staying a trial on the ground of adverse pre-trial publicity if satisfied on a balance of probabilities that if the jury returns a verdict of guilty the effect of the pre-trial publicity will be such as to render that verdict unsafe and unsatisfactory. In considering this question the court has to consider the likely length of time the jury will be subject to the trial process, the issues that are likely to arise and the evidence that is likely to be called in order to form a view as to whether it is probable that – try as they may to disregard the pre-trial publicity – the jury's verdict will be rendered unsafe on account of it. "

22. That passage was cited with approval by this court in R v Stone [2001] EWCA Crim 297; [2001] Crim LR 465 at paragraph 49. The adverse publicity in Maxwell and in Stone was more intense than the publicity that has taken place in the case of D. We are satisfied that, using accepted techniques of jury management, it should be possible to select a jury that is not prejudiced by recollection of such publicity. So far as the implications of D's retrial are concerned, we consider that there would be no difficulty in ensuring that members of the jury were unaware of the legal requirements for a retrial, for we doubt whether many members of the public are aware of these, notwithstanding that a press release issued by the Crown Prosecution Service in relation to the application to retry D unfortunately stated that the Director of Public Prosecutions was satisfied as to the requirement of compelling new evidence against him.
23. We have, however, a more fundamental difficulty with Mr Owen's submissions on the effect of publicity. As Mr Owen accepted, the jury will inevitably be told that D pleaded guilty to perjury. By so doing he accepted that he had lied when he denied being guilty of the murder of Julie H. By virtue of section 74(3) of the Police and Criminal Evidence Act, D will, by virtue of his conviction for perjury, 'be taken to have committed that offence unless the contrary is proved'.
24. Thus, on retrial, the jury will proceed on the premise that D lied when he denied being guilty of the murder of Julie H, unless he proves to the contrary. Quite apart from the statutory provision to this effect, the jury would be likely to adopt this approach, both to D's plea of guilty to perjury and to the various confessions that he made to Julie H's murder.
25. We asked Mr Owen whether his instructions enabled him to inform the court of the nature of any positive challenge that D would seek to make, if retried, to the conclusion that he committed perjury in denying that he murdered Julie H. He said that they did not.
26. It seems to us that any recollection that members of the jury might have in relation to publicity about D would pale into insignificance in comparison to the legitimate prejudicial effect of being told that he had, on a number of occasions, confessed to her murder and that he had pleaded guilty to perjury in relation to his denial of being guilty of that offence.
27. For these reasons we reject the submission that publicity about D would make a fair retrial impossible.

Delay

28. Mr Owen submitted that the cumulative effect of the 17 year delay between any retrial and the original offence, the 7 year delay between any retrial and the alleged confessions and the 9 month delay between the coming into force of Part 10 of the Act and the application for a retrial was such that it would not be in the interests of justice for D to be retried. The basis for this submission was that these periods of delay, of themselves, made it unfair to retry D, not that the effects of delay on the retrial would render any verdict unreliable.
29. Mr Owen accepted that delays of as long as 17 years between offence and prosecution have been not uncommon in the case of historic sexual offences. He submitted, however, that the period between acquittal and retrial was so unique in character that it was qualitatively different from either the period between charge and disposal at trial or the period between the offence and the first trial. We are unable to accept this submission. So far as the quality of delay is concerned, we can see little difference between the delay in charging a sex offender, who may have been lulled into a sense of false security by the absence of any charge over many years, and the delay in retrying a defendant who has been lulled into a sense of false security by the existence of a rule against double jeopardy. If a case of unfairness lies in relation to the retrial of the latter, we do not consider that it can be founded on any special quality of the delay between acquittal and retrial. We do not see that the other periods of delay on which Mr Owen relies add anything to his case. In particular, we do not consider that the delay of nine months in making the application for a retrial was unreasonable.
30. For these reasons, we reject the submission that the delay that has occurred in this case has rendered it unfair to retry D. We now turn to the submissions upon which Mr Owen placed primary reliance when submitting that a retrial would be unfair.

Reliance on the rule against double jeopardy

31. Mr Owen argued that the retroactive effect of Part 10 would operate particularly oppressively if applied to D. The confessions and the plea of guilty to perjury were made under the belief that he could not be retried for murder. So far as concerns the admissions made when being interviewed by the police on suspicion of perjury, these were induced by representations that he could not be retried for murder. The plea of guilty was made in the belief that it would put the record straight and draw a line under the affair. The plea resulted in a sentence of six years imprisonment. The prosecution for perjury revisited the issue of whether D was guilty of the murder or Julie H. It was particularly unjust that after serving the sentence for perjury he should once again be placed at risk in relation to the murder.
32. Mr Owen relied on the following qualification made by the Law Commission when recommending that the exception to the rule against double jeopardy should apply to acquittals which had already taken place when the exception came into force:

"If, moreover, the court hearing the application thought it would be unjust to reopen the acquittal because the defendant had acted in reliance on the assumption that it could not be challenged, that is an argument which a defendant might wish to advance in order to persuade the court to refuse a retrial on the grounds that it would not be in the interests of justice, or thereafter at the retrial to seek to persuade the court to stay the proceedings as an abuse of process. We do not suggest that the date of the acquittal should be wholly disregarded, but only that there should be no absolute bar on retrospective application of the exception. "

He submitted that this passage recognised that it could be unjust to apply Part 10 of the Act retroactively in circumstances just such as those in this case.

33. Mr Owen relied upon the decision in R v Kirk [2000] 1 Cr App R 400 as demonstrating that it would be unjust to retry D for murder. In that case the police questioned a suspect in relation to a theft of a woman's handbag without disclosing to him that the woman, who had been pushed over, had died in hospital as a result of treatment for injuries that she sustained. The suspect admitted the theft and was subsequently convicted of robbery and manslaughter. This court quashed those convictions. It held that the evidence of the admission should not have been put before the jury because the circumstances in which it was obtained were such that its admission would have an unduly adverse effect on the fairness of the proceedings. Kennedy LJ said at p. 406-7:

"where the police, having made an arrest, propose to question a suspect or to question him further in relation to an offence which is more serious than the offence in respect of which the offence was made, they must before questioning or questioning further, either charge the suspect with the more serious offence, as envisaged by section 37 of the Police and Criminal Evidence Act, or at least ensure that he is aware of the true nature of the investigation…..It seems to us that the 1984 Act and the Codes of Practice which exist under it proceed upon the assumption that a suspect in custody will know why he is there and, when being interviewed, will know at least in general terms the level of the offence of which he is suspected…"

Mr Owen submitted that, by analogy, it was unfair that D should be prejudiced by confessions made to the police in relation to a charge of perjury when, unknown to him, these might put him at risk of a conviction for murder.

34. We do not consider that the facts in this case are analogous to those in Kirk. In that case the unfairness arose because the police knew that the suspect that they were questioning was at risk of being charged with a much more serious offence than the one that he believed was in issue. There would have been no breach of the provisions of the Police and Criminal Evidence Act and the Codes of Practice had the police been unaware that the victim of the bag theft had sustained injuries and died and had not intended to charge the defendant with anything more serious than theft.
35. In the present case the police who were questioning D were doing so, as he knew, in relation to a possible charge for perjury. They were no more aware than was D that a subsequent change in the law would have the result that his answers might put him at risk of conviction for murder. For these reasons we do not consider that Kirk is of direct assistance to Mr Owen's argument. A more general question remains, however, as to whether the circumstances in which D made admissions that he had murdered Julie H, made admissions to the police in respect of perjury and subsequently pleaded guilty to that offence were such as to render it unfair for him to be prejudiced by the fact of those admissions and that conviction. Was Mr Owen correct to say that those admissions were made because D believed, or had been led to believe, that he could not be retried for murder and, if so, does that make it unjust that he should be retried?
36. Had D not made admissions to the police and subsequently pleaded guilty, a formidable case of perjury could have been mounted against him. On a number of occasions he had confessed to a prison officer that he had murdered Julie H. In the letter that he wrote on 10 April 1999 to a nurse who had looked after him in hospital he gave some explanation for his confession:

"I am waiting to see a psychologist and also a psychiatrist about being assessed for Grendon, where hopefully they'll be able to sort me out once and for all.

I have done a lot of soul searching since I came to Moorland and decided to come clean about the murder I was accused of and cleared of in 1991. I have admitted my guilt of this now.

I hope you understand that I couldn't tell you or anyone else in this hospital at Holme House of this because I hadn't been sentenced for what I am now doing my sentence on and I also hadn't admitted to myself that this was my major problem in coping with my life.

I owe it to my children and myself to get my head sorted out."

37. This suggests that it is at least possible that he would have confessed his guilt even if he had appreciated that this might expose him to the risk of retrial. It is right to note, however, that in writing to an ex-girl friend on 21 March 1999 he said:

"It's common knowledge now that I've admitted it but there's nothing that can be done about it as I've been cleared already."

This comment demonstrates that it is also possible that D would not have confessed to the murder had he believed that this could render him liable to retrial.

38. The statement in the Children Act Proceedings to which we have referred in paragraph 10 above was made deliberately, in legal proceedings and, no doubt, with the benefit of legal advice. Its impact had he been tried for perjury would have been devastating.
39. D has stated that, had he believed that he might be at risk of retrial for murder, he would have declined to comment in the police interviews in relation to the perjury offence. We view this assertion with scepticism, having regard to the following passages in the transcript of his interview:

"D: " … and so when I was in Durham it was in March the beginning of March er I'd locked in the strip cell and the following morning talked to the doctor and an officer and Mrs Lawrence and I told him I said I told him about all me violence I was sick of me violence and I admit it about Julie, etc. you've got to give some help on it. I said I need some help I need it sorting out, so he thanked me for being so honest through him and he said he's gonna start an assessment of me a place called Grendon Grendon Underwood in Aylesbury which is a psychiatric prison which deals with people with violence problems of violence I knew what I was doing that I'd laid meself open to this to perjury and that with what's gone in the past but there comes a time when you've got to make a choice, you've either got to sort yourself out which I've got to do now and just be in prison for the rest of your life. I owe it to everyone not just meself just sort it out and stop being a pratt. it's all right isn't it what surprises me at the moment it's the time it's took you seven months actually to come and interview about it only if you'd have come up in march when I'd admitted it to the doctor, and admitted it to the prison authorities 'cos it's for the documentation and I also wrote a letter to Donna and admitted it in the letter to Donna and I knew that that letter, I knew that that letter would get back to the police being in the social services, 'cos it went to the social services before it went to Donna and if you'd have come up seven months ago I would have told you this then."

DI DUFFEY: "So everything you said to the Prison Officer and to Donna is true."

D: "what's that"

DI DUFFEY: "About you killing Julie H."

D: "Yeh. I do say is bravado you know I'm sorry that it happened I, there's not a day I'm not bothered if you believe me or not but there's not a day goes by that I don't think about that night and what I done to her, not just well done to Julie but like the family but most of all for her to, there's Kevin her son her 10 year old son, well he's ten year old now he was only two at the time. 'Cos I can't stop thinking I can't take it away. It's there all the time."

DI DUFFEY: "You're obviously aware you can't stand trial for this murder again is that correct."

D: "Yeh yeh some like I haven't had just cos of what's gone on at the moment, about the double jepardy thing, about him doing a consultation paper on people who've been acquitted of serious offences being can be re-charged if there's further evidence comes up."

DI DUFFEY: "That's for the future though is it not, I mean at this present time you can't stand trial."

D: "Aw it is yeh yeh it might change in the future that's not the thing is it I've come clean 'cos I need help it's as simple as that I'm not proud of what I've done."

…

DI DUFFEY: "And when you said that you've, there's nothing to be done about it, your cleared already, you mean, what do you mean by that you can't trial for murder again."

D: "Yeh, well yeh that's what I assume that's what I was meaning then, but I didn't know about that double jeopardy law at the time you know and er the consultation papers that's been going on a while but like I said I've got to get rest doesn't it if I come clean. You can go to Julie's mam now and tell her that I have told the truth and that.""

40. These passages demonstrate:

i) that, when D made the various confessions before his police interview he was aware that these would expose him to the risk of prosecution for perjury;

ii) that when D made the confessions in police interview he was aware of the possibility that the double jeopardy rule might be altered; and

iii) that his motive for making at least some of the confessions was that he wanted psychiatric help.

41. In the light of this evidence we reject Mr Owen's suggestion that D was induced to make his confessions to the police and to plead guilty to perjury because he had been told that he could not be retried for murder. The highest that D's case can be put is that, had he known that it was possible that he might be retried, he would not have set out on the course that involved repeated confessions of his guilt of murder and his plea of guilty to perjury. In short, he might not have provided the new and compelling evidence on which the Crown Prosecution Service's application for a retrial is founded. We think it right to approach this case on the footing that this is indeed the position.

Discussion

42. In reliance on the belief that he was immune from retrial, D has provided new evidence which is not merely compelling, but overwhelming. There has been no suggestion that he is in a position to attempt to rebut this evidence. In these circumstances we suggested to Mr Owen that the issue was not so much whether it was fair that he should be exposed to the jeopardy of another trial, but whether it was fair, having particular regard to the fact that he had set out to 'put the record straight' and pay the considerable penalty for perjury, that he should be exposed to further punishment for murder, the punishment in question being a mandatory life sentence. Mr Owen did not demur from this proposition.
43. In considering the case for an exception to the double jeopardy rule, the Law Commission commented as follows:

"There is, further, the spectre of public disquiet, even revulsion, when someone is acquitted of the most serious of crimes and new material (such as that person's own admission) points strongly or conclusively to guilt. Such cases may undermine public confidence in the criminal justice system as much as manifestly wrongful convictions. The erosion of that confidence, caused by the demonstrable failure of the system to deliver accurate outcomes in very serious cases, is at least as important as the failure itself. "

Those words might have been written of the present case.

44. We are dealing here with the crime of murder. The Law Commission identified the unique features of this crime as providing a unique justification for an exception to the double jeopardy rule. Parliament has extended the exception further than the crime of murder, but that does not detract from the fact that the strongest justification for the exception is likely to be the case of murder.
45. We have concluded that the public would rightly be outraged were the exception to the double jeopardy rule not to be applied in the present case simply on the basis that D would not have made the confessions that he did had he appreciated that they might lead to his retrial. We can see no injustice in allowing a retrial in this case. As for the sentence that D has served for perjury, that was imposed as punishment for lying under oath. It may be that the sentence reflected the consequence of the perjury, namely D's acquittal of murder, and that for this reason it should be taken into account, to some extent, when determining the minimum term to be served should D now be convicted of that crime. That is a matter that will fall for consideration if and when a judge comes to sentence D for the offence of murder.
46. For the reasons that we have given we were, at the end of the hearing, left in no doubt that this is a case where justice requires the application of the provisions of Part 10 that provide an exception to the rule against double jeopardy.