When Should a Retrial be Permitted After a Conviction is Quashed on Appeal?

AuthorJames Chalmers,Fiona Leverick
Date01 September 2011
Publication Date01 September 2011
When Should a Retrial be Permitted After a Conviction is
Quashed on Appeal?
James Chalmers and Fiona Leverick
The power to permit a retrial after a conviction has been quashed on appeal is an established part
of criminal procedure, with over a third of successful appeals against conviction in England and
Wales now resulting in a retrial being ordered. Despite this, relatively little attention has been
paid to the circumstancesi nwhich it is appropriate forsuch permission to be granted.This article
reviewsthe practice of the courts, o¡ering a rational reconstructionof the reported cases. It argues
that appeal courts have improperlyentered i nto considerationof matters which should properly
be reserved to prosecutorial discretion.While retrial after a quashed conviction should only be
possible with the permission of the appeal court, such permission should ^ where sought ^ always
be granted unless insu⁄cient competent evidence was led atthe ¢rst trial or a second prosecution
would be an abuse of process.
The opinion of the court in McCreight vHM Advocate,
a complex appeal against
conviction for murder where there was u ncertainty about the method of the
deceaseds death, is lengthy and detailed, which makes the ¢nal two sentences of
the opinion even more surprising:
Once we had quashed the conviction, we heard submissions, under reference to ss
118(1)(c) and119 of the1995 Act,o nthe question whether we should grant authority
to the Crown to bring a new prosecution.We decided by a majority that in the
whole circumstances it was not in the interests of justice that we should grant the
Crown application.
Despite the split ofopinion amongst the courts members, there is no dissenting
opinion (and thedissenting judge is not identi¢ed).Thereis no discussionof what
considerations might be relevant to the ‘interests of justice, or any indication of
what caused the members of the court to reach di¡erent conclusions.
This is
by no means unusual insofar as decisions on whether to grant permission for a
Senior Lecturer in Law, University of Edinburgh, and Se nior Lecturer in Law, University of Glas-
gow, respectively. Forcomments on earlier versions of this paper, we are grateful to Clare Connelly,
Peter Du¡, LindsayFarmer, Paul Roberts, Sarah Summers, FindlayStark, the participants in the 2010
Gerald Gordon Seminar on Criminal Law and the Review’stwo anonymous referees.
12009 SCCR 743(McCreight).
2McCreight at [97].The ‘1995 Act’is the Criminal Procedure (Scotland) Act 1995.
3A brief discussion of potentially relevantconsiderations can be found in Sheri¡ Welsh’scommen-
tary on the SCL case report: 2010 SCL17,56.The absence of reasons maybe eas ier to justify where
the decision on the retrial point is in the appellant’s favour, but in some cases permission for a
retrial has been granted without reasons being o¡ered in the court’s judgment(although this does
not exclude the possibility that reasons weregiven verbally in the courtroom): see eg King vHM
Advocate1985 SCCR 322; RvYoung [1995]QB 324.
r2011The Authors.The Modern Law Review r2011The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2011) 74(5) 721^749
retrial following a quashed conviction are concerned. While there exists a
multitude of reported cases ^ the decision whether or not to permit a retrial is
potentially a liveone i n almost everysuccessful appealagainst conviction
^ these
are of little analytical use as discussion of the guiding principles is practically
unknown, either in Scotland
or in England and Wales.
Indeed, in the vast
majority of case reports, as in McCreight above, the court’s decision and reasoning
extends to one or two sentences merely recording whether or not a retrial was
The aims of this paper, which is concerned with both English and Scots law,
are twofold. First, it analyses the vast body of reported criminal appeals in both
jurisdictionsi n an attempt todraw out the principles that have been ^ and should
be ^ appliedwhen deciding whether topermit a retrial. Secondly, it goesbeyond
this by arguing that current practice involves the appeal court improperly invol-
ving itself in matters of prosecutorial discretion, and that the role of the appeal
court should be limited to barring retrial only if insu⁄cient competent evidence
was led atthe ¢rst trial or if a second trial would be an abuse ofprocess.The deci-
sion on whether or not to retry should then lie with the Crown, who should
apply the normal principles governing prosecutorial discretion: ¢rst, is there a
realistic prospect of conviction at trial and secondly, would a (fresh) prosecution
be in the public interest?
Our proposals are compatible with the statutory provi-
sions currently applicable in Scotland,
but would require legislative amendment
in England andWales.
Before commencing, it should be noted that the papers concern is with retrial
following a quashed conviction ^ that is, after there has been a successful appeal
against conviction and the court must either grant permission for a retrial or
quash the convictionwith no possibility of furtherproceedings against the appel-
This is not the only circumstance in which retrial can arise. In England and
Wales, retrial for certain serious o¡ences can take place following an acquittal if
new and compelling evidence subsequently comes to l ight.
Unlike retrial
following a quashed conviction, this issue has been extensively discussed.
It is
also the case that trials sometimes fail to reach a conclusion because of procedural
4An exception is appeals against conviction in the magistrates’ courts in England andWales, on
which see text accompanying n 15 below.
5Exceptions are LovevHM Advocate(No2) 31Aug 1999, unreported (Love); Drummond vHM Advo-
cate 2003 SLT295 (Drum mond).
6Exceptions are RvStone [2001] EWCA Crim 297 (Stone); RvEl-Kurd [2007] EWCA Crim 1888
7Codefor CrownProsecutors (2010) ch 4. See also Crown O⁄ce and ProcuratorFiscal Service, Prose cu-
tion Code (2001) 3^8, where the ¢rst limb of the test is formulated (at 4) as whetherthere is ‘su⁄-
cient admissible evidence to justify commencing proceedings’.
8Criminal Procedure (Scotland) Act1995,s 118.
9Criminal Appeal Act1968, s 7.Our proposals would also require the amendment of the Crown
Prosecution Service’s Legal Guidance on Retrials at http://www.cps.gov.uk/legal/p_to_r/retrials/(last
visited 5 May 2011),which re£ects the law as it presently stands.
10 Unless fresh evidence subsequentlyaris es thats atis¢esthe co nditions inwhich a fresh prosecution
could be brought u nder the legislation cited at n 11below.
11 Criminal Justice Act 2003, ss 75^79. Similar changes have recentlybeen enacted i n Scotland:see
12 See eg I. Dennis, ‘Prosecution appeals and retrial for serious o¡ences’ [2004] Crim LR 619; P.
Roberts,‘Double jeopardylaw reform:A criminal justice commentary’(2002) 65 MLR 393.
When Should a Retrial be Permitted Aftera Conviction is Quashed on Appeal?
722 r2011The Authors.The Modern LawReview r2011The Modern Law Review Limited.
(2011)74(5) 721^749

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