The Court of Appeal restrains an overzealous CPS

The Court of Appeal’s judgment in R. v. Reilly shows what can go badly wrong in a system of criminal justice which permits a State prosecutor to call into question the validity of an accused’s acquittal.

Part 10 of the Criminal Justice Act 2003 fundamentally changed the criminal law concerning double jeopardy. Exposing a citizen to a State prosecutor’s repeated attempts to have them convicted of the same offence is an ordeal which the law concerning “double jeopardy” seeks to prevent. The law on double jeopardy as common lawyers call it or non bis in idem, a term preferred by Continental lawyers, stems from a shared wisdom that preventing a zealous prosecutor from reprosecuting or persecuting an accused is an important safeguard against State oppression. In the US and UK, it is also a reflection of a principle that trial by jury is axiomatically an effective system of determining a citizen’s guilt or innocence, and thus prosecutors should not be allowed to call into question the correctness of an accused’s acquittal.

In Pt.10 of the 2003 Act, entitled “Tainted Acquittals”, Parliament saw fit to permit a reprosecution despite a prior acquittal. Concerns about jury nobbling and scientific advances in DNA matching techniques emerged as persuasive factors during the legislative debates. The upshot which is contained in provisions within this Part is to grant to the Director of Public Prosecutions (DPP) personally (an exception therefore to the Carltona principle of public law which permits delegation of official decision-making) a right to apply to the Court of Appeal for a retrial. The applicable circumstances are strictly circumscribed; essentially that there is new and compelling evidence and that a retrial would be in the interests of justice.

Since this Part was implemented in 2005, DPP’s have made few, rare applications for a retrial. The court has scrutinised each carefully and applied a high threshold test. For example, new evidence in the form of an informant who has become willing post-acquittal to testify against the putative accused or evidence which whilst new, could have been discovered and adduced at the original trial has been held not to satisfy the test. Policy-wise therefore the court has plainly established and successive DPP’s appear to have agreed that absent any allegation of jury nobbling, only new and highly probative evidence of guilt can justify an accused facing the anxiety of a retrial. In other words, there must be almost overwhelmingly strong forensic reasons for overturning a jury’s verdict.

Against this backdrop, the decision in July 2017 of the current DPP, Alison Saunders, to apply for a retrial of Mr Reilly is remarkable. Having determined and rejected it, the Court of Appeal was troubled about her judgment in making and persevering with this application. In typically restrained and coded judicial language Davis LJ, held her application to be “very unusual” and he prescribed that before countenancing any future one she should reflect on the Court’s judgment as it contained “a number of points which the DPP might want to consider”. This, other similar language used in the judgment, plus the Court’s diligence in setting out the scenario which the DPP was advocating, raises serious concerns about the trajectory of the CPS.

Alison Saunders apparently believed it appropriate to seek to have Mr Reilly’s 1986 acquittal of a murder committed in 1984 overturned, despite knowing via unimpeachable medical evidence obtained from Broadmoor hospital (where he was indefinitely detained) that he would never be deemed fit to be retried. He could never be prosecuted because he would be too ill and unable to defend himself. Forensically, this meant that he could never be convicted and so this application seemed pointless. Having emphasised this to the CPS’s counsel presenting the DPP’s application, the Court advised him to obtain urgent overnight instructions from his client as to whether this application should be withdrawn. Moreover, Davis LJ pointed to the CPS’s own published policy which eschews seeking a retrial where the putative accused is not in jeopardy of being convicted.

With these proverbial fleas in his ear that senior Treasury counsel must that evening have rendered very firm advice to the senior management of the CPS if not actually and personally to the DPP. One would have expected the court’s clear misgivings to have led to the CPS abandoning this application. Not a bit of it. The next day the barrister returned to court to explain that whilst his client conceded that Mr Reilly could not be retried and therefore this could never be in the interests of justice, the application was to be persevered with. He was instructed that the CPS intended, if permitted, to launch prior to his death proceedings pursuant to s.4 of the Criminal Procedure (Insanity) Act 1964. That if he remained alive long enough there could be a “trial of the issue” as to whether he had committed the murder in 1984. Such a legal finding, not amounting to a conviction, was possible.

Unsurprisingly the court queried whether striving to achieve this legalistic outcome was an intended purpose of Pt.10. Without deciding this, it held anyway that the CPS’ plan could never satisfy the statutory criterion of the proceedings being in the interests of justice. Davis LJ, acidly observed that had the court been persuaded to allow the CPS to invoke this obscure s.4 procedure what would probably have then happened was “an unseemly race” by the CPS to have the trial of the issue heard before the inevitable imminent death of Mr Reilly.

Having dismissed the DPP’s application, the court remained vexed about the CPS’s thinking. Why had its top echelon acted so doggedly in the face of the law, the agreed facts, its own policy and the expressions of reluctance from the Court during the hearing? Davis LJ, decided to add a conclusion to his judgement concerned with the CPS’ possible motivation. Trying to ascertain a litigant’s motivation in a postscript to a judgment is not normally something which a busy Court of Appeal would regard as desirable. The fact that in this case, Davis LJ thought it was preferable shows the court was troubled and that it considered the CPS needed both admonishment and correction.

In his conclusion, the Judge recorded that he had queried with the CPS’ counsel whether it had been motivated by a desire to attract favourable publicity for itself, which it apprehended would not have been achieved had it abandoned the application. Of course, the Judge accepted the CPS’ assurance that this was not the case. Nonetheless, he felt it useful to opine, presumably in case this assurance was false and because no alternative explanation had been proffered, that the CPS should never pursue applications for such a reason.

Hopefully the DPP and her close team now regret that they acted as they did. Both the initial application and the perseverance were fundamentally flawed. Anyone reading the judgment will realise that this was also the opinion of the court.

Whilst the CPS’ motivation may genuinely not have been to court publicity, the lasting impression is that it was infected at least in part by the same contaminant which led the Chief Constable of Wiltshire Police to launch his high profile investigation of the late Sir Edward Heath. A possibly noble but definitely misconceived belief that, post the Saville scandal, the role of law enforcement agencies is to “stand up for victims”. To seek to vindicate their claims of being victims or to achieve “closure” for them and their families as a reparation for their alleged suffering. All of this is forensically pointless as no prosecution can ensue and it diverts the criminal justice system away from its proper role of impartially investigating and prosecuting crime. Worst of all, it insidiously leads those agencies down a path ending in vigilantism. The Heath investigation and this case are isolated examples of this trend but they are worrying straws in the wind.

This article was originally published in Criminal Law & Justice Weekly, and can be accessed here behind a paywall.