England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		12 June 2009

1. LORD JUSTICE HUGHES: 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 summary judgment may be reported, but only under the name R v G(G) and B(S), since they stand acquitted.
2. These two men were acquitted of active participation in murder by shooting. A third man was convicted, having been disbelieved in his evidence that he was not there. Subsequently the third man offered himself to the police as an informant and entered into an agreement pursuant to section 74 Serious Organised Crime and Police Act 2005. He has now made a statement implicating these two men in the murder of which they were acquitted.
3. The Crown applies, pursuant to s 76 CJA 03 for an order quashing the acquittals and directing a re-trial. Such an application is to be granted if but only if:

(i) There is new and compelling evidence against the acquitted person (s78) and

(ii) It is in the interests of justice for there to be such an order (s79).

4. The evidence advanced as compelling new evidence is that of the former co-accused. There are two other pieces of new evidence which the Crown accepts could not by themselves constitute grounds for quashing the acquittals, either because they should have been available at the trial and thus fail the due diligence test contained in section 79(2)(c) or because they are not highly probative of the guilt of the defendants (section 78(3)(c)). The Crown contends, however, that these pieces of evidence, severally or together, sufficiently support the evidence of the convicted former co-defendant as to demonstrate that his evidence must be true.
5. We have recently set out in R v B(J) [2009] EWCA Crim 1036 the principles applicable to applications under section 76 CJA 2003, as they derive from the statute and previous authority especially R v A [2008] EWCA Crim 2908. It is not necessary to repeat them. Each case depends on its facts. The bar for the Crown is, as counsel rightly recognises, a high one. In particular, it is not enough that the new evidence presents the defendant with a case to answer. The time to present him with a case to answer is at the time of his trial. There are very powerful reasons why there ought normally to be a single trial, at which all the evidence on either side is assembled and assessed, and which produces an outcome which, whether conviction or acquittal, is, subject to any error of law or principle exposed on appeal, final. 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.
6. Both defendants contend that this application fails the interests of justice test set out in section 79 because it is clear that the motives of the former co-defendant in giving evidence are entirely cynical and self-serving. We agree that it is clear from what he has said that he contemplated even at the trial using an offer of assistance to the police as a long-stop if his evidence that he was not present at the murder should fail to persuade the jury. He has also made it quite clear that he has given the information he has in order to minimise his sentence. In this he has been successful. Sentence upon him was postponed at the end of his trial and the subsequent sentence passed was dramatically reduced.
7. The defendants submit that it is inimical to the interests of justice for defendants to be encouraged to think that they can with impunity advance a dishonest defence whilst keeping up their sleeves the long-stop tactic of giving assistance to the police, and thus obtaining a dramatic reduction in sentence, if the dishonest defence fails. We agree that the specific considerations contained in section 79 in relation to the interests of justice test for an application to quash an acquittal are not exhaustive; this court can and should stand back from the application and ask whether in all the circumstances it is in the interests of justice that there should be an order for re-trial: see s79(1). We also agree that deliberate manipulation of the courts by a proffered witness is one of the relevant circumstances of the case. But this jurisdiction is not principally concerned with what a prospective new witness deserves or does not deserve. It is principally concerned with the position of the acquitted defendant and with whether it is in the interests of justice that, exceptionally, he should be tried again despite acquittal on the grounds that his acquittal is transparently wrong and damages the credibility of the criminal justice system. The calling of criminals turned police informants is rarely an attractive process, but it is a practical necessity if serious criminals are to be tried and punished, as Sir Igor Judge P (as he then was) observed in R v P; R v Blackburn [2007] EWCA Crim 2290; [2008] 2 Cr App R (S) 5 at 16: see paragraph 22. If the evidence of the cynical manipulative accomplice is truly compelling (perhaps, for example, because it reveals something wholly new which can be confirmed and/or simply must be true) it may be in the interests of justice for the acquittal to be quashed. We do not get to that point in this case. The difficulty in this case, and it may well be in other similar ones, is that the manipulative and cynical nature of the witness makes it very difficult to know whether his evidence is truthful or not. If, as here, the witness has demonstrated beyond question that he is quite prepared to say anything that he thinks will serve his own purposes, whether true or not, it is very much less likely that it will be possible to say of his new evidence that it is reliable in the sense used in the statute, viz compelling. This case, we are satisfied, in the end depends not on the interests of justice test in section 79, but on the reliability test in section 78.
8. We have set out the facts of this case in our detailed judgment. It is enough for the purposes of this summary to say that even with the possible support suggested we do not find the evidence of the former co-defendant to be demonstrated to be reliable. At counsel's invitation we have stood back and asked ourselves whether it is demonstrated both by its own content and by its combination with other material to be reliable. We are quite satisfied that it is not. The witness is a fluent and circumstantial liar who says whatever suits him and is adept at tailoring it to the known facts. His previous accounts of this killing have been garnished with much colourable but invented material, even after he entered the "cleansing" SOCPA de-briefing process, and the same is true of what he has said about other crimes in which he was involved. The powerful interest which he has had to serve, and still has, lies in obtaining and retaining a dramatic reduction in his sentence. In some respects he is supported by other evidence, but in others appears less than consistent with it. He may this time be telling the truth but it is far from plain that he is, and his evidence is in no sense the kind of compelling new material which can justify the reversal of an acquittal.
9. We should make it clear that the exercise which we have undertaken is quite different from the question which any jury might address if this former co-accused were to be a witness, on any topic, whose evidence had to be considered. We are not here to say whether his evidence might or might not properly be accepted; we are addressing the considerably more exacting test of whether it is compelling in the sense used by section 78.
10. Because some persons still face trial for related allegations, any publication of our detailed judgment would court a substantial risk of prejudice to the administration of justice in those trials. We therefore order, pursuant to s 4(2) Contempt of Court Act 1981 that that main judgment may not be reported in any form, including in 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 the acquitted men, and any other defendant in related proceedings must be given the opportunity to agree or to give reasons for disagreement. We will then consider whether any further oral argument is necessary.
11. For the reasons given in our detailed judgment and here summarised, the Crown's application to quash the acquittals must be refused.