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Application for retrial | |
64 Application to Court of Appeal | |
(1) A prosecutor may apply to the Court of Appeal for an order— | |
(a) quashing a person’s acquittal in England and Wales, and | |
(b) ordering him to be retried for the qualifying offence. | 5 |
(2) A prosecutor may apply to the Court of Appeal, in the case of a person | |
acquitted elsewhere than in England and Wales or Scotland, for— | |
(a) a determination whether the acquittal is a bar to the person being tried | |
in England and Wales for the qualifying offence, and | |
(b) if it is, an order that the acquittal is not to be a bar. | 10 |
(3) A prosecutor may make an application under subsection (1) or (2) only with the | |
written consent of the Director of Public Prosecutions. | |
(4) The Director of Public Prosecutions may give his consent only if satisfied | |
that— | |
(a) there is evidence as respects which the requirements of section 66 | 15 |
appear to be met, and | |
(b) it is in the public interest for the application to proceed. | |
(5) Not more than one application may be made under subsection (1) or (2) in | |
relation to an acquittal. | |
65 Determination by Court of Appeal | 20 |
(1) On an application under section 64(1), the Court of Appeal— | |
(a) if satisfied that the requirements of sections 66 and 67 are met, must | |
make the order applied for; | |
(b) otherwise, must dismiss the application. | |
(2) Subsections (3) and (4) apply to an application under section 64(2). | 25 |
(3) Where the Court of Appeal determines that the acquittal is a bar to the person | |
being tried for the qualifying offence, the court— | |
(a) if satisfied that the requirements of sections 66 and 67 are met, must | |
make the order applied for; | |
(b) otherwise, must make a declaration to the effect that the acquittal is a | 30 |
bar to the person being tried for the offence. | |
(4) Where the Court of Appeal determines that the acquittal is not a bar to the | |
person being tried for the qualifying offence, it must make a declaration to that | |
effect. | |
66 New and compelling evidence | 35 |
(1) The requirements of this section are met if there is new and compelling | |
evidence that the acquitted person is guilty of the qualifying offence. | |
(2) Evidence is new if it was not available or known to an officer or prosecutor at | |
or before the time of the acquittal. | |
(3) Evidence is compelling if— | 40 |
(a) it is reliable, | |
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(b) it is substantial, and | |
(c) when it is considered in the context of the outstanding issues, it is | |
highly probable that the person is guilty of the offence. | |
(4) The outstanding issues are the issues in dispute in the proceedings in which the | |
person was acquitted and, if those are appeal proceedings, any other issues | 5 |
remaining in dispute from earlier proceedings to which the appeal relates. | |
(5) For the purposes of this section, it is irrelevant whether any evidence would | |
have been admissible in earlier proceedings against the acquitted person. | |
(6) In subsection (2) the reference to an officer or prosecutor includes a reference | |
to a person charged with corresponding duties under the law in force | 10 |
elsewhere than in England and Wales. | |
(7) Where the earlier prosecution was conducted by a person other than a | |
prosecutor, subsection (2) applies in relation to that person as well as in | |
relation to a prosecutor. | |
67 Interests of justice | 15 |
(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 65. | |
(2) That question is to be determined having regard in particular to— | |
(a) whether it is likely that a fair trial pursuant to the order would be | |
possible; | 20 |
(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 available | |
sooner (either in the earlier proceedings against the acquitted person or | |
subsequently) but for a failure by an officer or by a prosecutor to act | 25 |
with due diligence; | |
(d) whether any officer or prosecutor has failed to act with due expedition | |
since the new evidence became available or known to him or, if later, | |
since the commencement of this Part. | |
(3) In subsection (2) references to an officer or prosecutor include references to a | 30 |
person charged with corresponding duties under the law in force elsewhere | |
than in England and Wales. | |
(4) Where the earlier prosecution was conducted by a person other than a | |
prosecutor, subsection (2)(c) applies in relation to that person as well as in | |
relation to a prosecutor. | 35 |
68 Procedure and evidence | |
(1) A prosecutor who wishes to make an application under section 64(1) or (2) | |
must give notice of the application to the Court of Appeal. | |
(2) Within two days beginning with the day on which any such notice is given, | |
notice of the application must be served by the prosecutor on the person to | 40 |
whom the application relates. | |
(3) The Court of Appeal must consider the application at a hearing. | |
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(4) The person to whom the application relates is entitled to be present at the | |
hearing, although he may be in custody. | |
(5) For the purposes of the application, the Court of Appeal may, if it thinks it | |
necessary or expedient in the interests of justice— | |
(a) order the production of any document, exhibit or other thing, the | 5 |
production of which appears to the court to be necessary for the | |
determination of the application, and | |
(b) order any witness who would be a compellable witness in proceedings | |
pursuant to an order or declaration made on the application to attend | |
for examination and be examined before the court. | 10 |
(6) The Court of Appeal may at one hearing consider more than one application | |
(whether or not relating to the same person), but only if the offences concerned | |
could be tried on the same indictment. | |
69 Appeals | |
(1) The Criminal Appeal Act 1968 (c. 19) is amended as follows. | 15 |
(2) In section 33 (right of appeal to House of Lords), after subsection (1A) there is | |
inserted— | |
“(1B) An appeal lies to the House of Lords, at the instance of the acquitted | |
person or the prosecutor, from any decision of the Court of Appeal on | |
an application under section 64(1) or (2) of the Criminal Justice Act 2003 | 20 |
(retrial for serious offences).” | |
(3) At the end of that section there is inserted— | |
“(4) In relation to an appeal under subsection (1B), references in this Part to | |
a defendant are references to the acquitted person.” | |
(4) In section 34(2) (extension of time for leave to appeal), after “defendant” there | 25 |
is inserted “or, in the case of an appeal under section 33(1B), by the prosecutor”. | |
(5) In section 38 (presence of defendant at hearing), for “has been convicted of an | |
offence and” substitute “has been convicted of an offence, or in whose case an | |
order under section 65 of the Criminal Justice Act 2003 or a declaration under | |
section 65(4) of that Act has been made, and who”. | 30 |
70 Restrictions on reporting | |
(1) Where notice of an application has been given under section 68(1), no | |
publication shall, except as provided by this section, include a report of any of | |
the matters within subsection (2). | |
(2) Those matters are— | 35 |
(a) the application, and | |
(b) anything done in connection with the application under this Part or | |
Part 2 of the Criminal Appeal Act 1968 or under rules of court. | |
(3) An order that subsection (1) is not to apply to a report, or is not to apply to a | |
specified extent to a report, may be made— | 40 |
(a) by the House of Lords, in the case of a report of an appeal to that House, | |
or of an application to that House for leave to appeal; | |
(b) by the Court of Appeal, in any other case. | |
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(4) If the acquitted person objects to the making of an order under subsection (3)— | |
(a) the House of Lords or Court of Appeal are to make the order if (and | |
only if) satisfied, after hearing that person’s representations, that it is in | |
the interests of justice to do so, and | |
(b) the order (if made) is not to apply to the extent that a report deals with | 5 |
any such objection or representations. | |
(5) Subsection (1) does not apply to the inclusion in a publication of a report of, or | |
of anything done in connection with, an application— | |
(a) at a time when there is no longer any step that could be taken which | |
would lead to the acquitted person being tried pursuant to an order | 10 |
made on the application, or | |
(b) if he is tried pursuant to such an order, after the conclusion of the trial. | |
(6) Nothing in this section affects any prohibition or restriction by virtue of any | |
other enactment on the inclusion of any matter in a publication. | |
(7) In this section— | 15 |
“programme service” has the same meaning as in the Broadcasting Act | |
1990 (c. 42), | |
“publication” includes any speech, writing, relevant programme or other | |
communication in whatever form, which is addressed to the public at | |
large or any section of the public (and for this purpose every relevant | 20 |
programme is to be taken to be so addressed), but does not include an | |
indictment or other document prepared for use in particular legal | |
proceedings, | |
“relevant programme” means a programme included in a programme | |
service. | 25 |
71 Offences in connection with reporting | |
(1) This section applies if a publication includes a report in contravention of | |
section 70. | |
(2) Where the publication is a newspaper or periodical, any proprietor, editor or | |
publisher of the newspaper or periodical is guilty of an offence. | 30 |
(3) Where the publication is a relevant programme— | |
(a) any body corporate or Scottish partnership engaged in providing the | |
programme service in which the programme is included, and | |
(b) any person having functions in relation to the programme | |
corresponding to those of an editor of a newspaper, | 35 |
is guilty of an offence. | |
(4) In the case of any other publication, any person publishing it is guilty of an | |
offence. | |
(5) If an offence under this section committed by a body corporate is proved— | |
(a) to have been committed with the consent or connivance of, or | 40 |
(b) to be attributable to any neglect on the part of, | |
an officer, the officer as well as the body corporate is guilty of the offence and | |
liable to be proceeded against and punished accordingly. | |
(6) In subsection (5), “officer” means a director, manager, secretary or other similar | |
officer of the body, or a person purporting to act in any such capacity. | 45 |
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(7) If the affairs of a body corporate are managed by its members, “director” in | |
subsection (6) means a member of that body. | |
(8) Where an offence under this section is committed by a Scottish partnership and | |
is proved to have been committed with the consent or connivance of a partner, | |
he as well as the partnership shall be guilty of the offence and shall be liable to | 5 |
be proceeded against and punished accordingly. | |
(9) A person guilty of an offence under this section is liable on summary | |
conviction to a fine not exceeding level 5 on the standard scale. | |
(10) Proceedings for an offence under this section may not be instituted— | |
(a) in England and Wales otherwise than by or with the consent of the | 10 |
Attorney General, or | |
(b) in Northern Ireland otherwise than by or with the consent of the | |
Attorney General for Northern Ireland. | |
Retrial | |
72 Retrial | 15 |
(1) Where a person— | |
(a) is tried pursuant to an order under section 65(1), or | |
(b) is tried on indictment pursuant to an order under section 65(3), | |
the trial must be on an indictment preferred by direction of the Court of | |
Appeal. | 20 |
(2) After the end of 2 months after the date of the order, the person may not be | |
arraigned on an indictment preferred in pursuance of such a direction unless | |
the Court of Appeal gives leave. | |
(3) The Court of Appeal must not give leave unless satisfied that— | |
(a) the prosecutor has acted with due expedition, and | 25 |
(b) there is a good and sufficient cause for trial despite the lapse of time | |
since the order under section 65. | |
(4) Where the person may not be arraigned without leave, he may apply to the | |
Court of Appeal to set aside the order and— | |
(a) for any direction required for restoring an earlier judgment and verdict | 30 |
of acquittal of the qualifying offence, or | |
(b) in the case of a person acquitted elsewhere than in England and Wales | |
or Scotland, for a declaration to the effect that the acquittal is a bar to | |
his being tried for the qualifying offence. | |
(5) An indictment under subsection (1) may relate to more than one offence, or | 35 |
more than one person, and may relate to an offence which, or a person who, is | |
not the subject of an order or declaration under section 65. | |
(6) Evidence given at a trial pursuant to an order under section 65(1) or (3) must | |
be given orally if it was given orally at the original trial, unless— | |
(a) section 101 applies, or | 40 |
(b) the witness is unavailable to give evidence, otherwise than as | |
mentioned in subsection (2) of that section, and section 99(1)(d) applies. | |
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(7) At a trial pursuant to an order under section 65(1), paragraph 5 of Schedule 3 | |
to the Crime and Disorder Act 1998 (c. 37) (use of depositions) does not apply | |
to a deposition read as evidence at the original trial. | |
Investigations | |
73 Authorisation of investigations | 5 |
(1) This section applies to the investigation of the commission of a qualifying | |
offence by a person— | |
(a) acquitted in England and Wales of the qualifying offence, or | |
(b) acquitted elsewhere than in England and Wales or Scotland of an | |
offence the commission of which as alleged would have amounted to | 10 |
or included the commission in the United Kingdom of the qualifying | |
offence. | |
(2) Subject to section 74, an officer may not do anything within subsection (3) for | |
the purposes of such an investigation unless the Director of Public | |
Prosecutions— | 15 |
(a) has certified that in his opinion the acquittal would not be a bar to the | |
trial of the acquitted person in England and Wales for the qualifying | |
offence, or | |
(b) has given his written consent to the investigation (whether before or | |
after the start of the investigation). | 20 |
(3) The officer may not, either with or without the consent of the acquitted | |
person— | |
(a) arrest or question him, | |
(b) search him or premises owned or occupied by him, | |
(c) search a vehicle owned by him or anything in or on such a vehicle, | 25 |
(d) seize anything in his possession, or | |
(e) take his fingerprints or take a sample from him. | |
(4) The Director of Public Prosecutions may only give his consent on a written | |
application, and such an application may be made only by— | |
(a) an officer of the metropolitan police force or the City of London police | 30 |
force of the rank of commander or above, or | |
(b) an officer of any other police force of the rank of assistant chief | |
constable or above. | |
(5) An officer may make an application under subsection (4) only if— | |
(a) new evidence which would be relevant to an application under section | 35 |
64(1) or (2) in respect of the qualifying offence is available or known to | |
the officer, or | |
(b) the officer has reasonable grounds for believing that such new evidence | |
is likely to become available or known to him as a result of the | |
investigation. | 40 |
(6) The Director of Public Prosecutions may not give his consent unless satisfied | |
that— | |
(a) there is, or there is likely as a result of the investigation to be, sufficient | |
new evidence to warrant the conduct of the investigation, and | |
(b) it is in the public interest for the investigation to proceed. | 45 |
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(7) In giving his consent, the Director of Public Prosecutions may recommend that | |
the investigation be conducted otherwise than by officers of a specified police | |
force. | |
74 Urgent investigative steps | |
(1) Section 73 does not prevent an officer from taking any action for the purposes | 5 |
of an investigation at a time when each of the following conditions is met. | |
(2) The first condition is that the investigation is authorised by an officer of the | |
rank of superintendent or above. | |
(3) Such an authorisation may be given before or after the start of the | |
investigation. | 10 |
(4) The second condition is that— | |
(a) new evidence which would be relevant to an application under section | |
64(1) or (2) in respect of the qualifying offence to which the | |
investigation relates is available or known to the officer authorising the | |
investigation, or | 15 |
(b) that officer has reasonable grounds for believing that such new | |
evidence is likely as a result of the investigation to become available or | |
known to him. | |
(5) The third condition is that the action is necessary as a matter of urgency— | |
(a) to prevent the investigation being substantially and irrevocably | 20 |
prejudiced, or | |
(b) to prevent death or serious personal injury. | |
(6) The fourth condition is that— | |
(a) there has been no undue delay in applying for consent under section | |
73(2), | 25 |
(b) that consent has not been refused, and | |
(c) taking into account the urgency of the situation, it is not reasonably | |
practicable to obtain that consent before taking the action. | |
(7) An authorisation under subsection (2) must— | |
(a) if reasonably practicable, be given in writing; | 30 |
(b) otherwise, be recorded in writing by the officer giving it as soon as is | |
reasonably practicable. | |
Arrest, custody and bail | |
75 Arrest and charge | |
(1) If a justice of the peace is satisfied by written information that new evidence | 35 |
which would be relevant to an application under section 64(1) or (2) in respect | |
of the commission by any person of a qualifying offence is available or known | |
to an officer, the justice may issue a warrant to arrest that person for that | |
offence. | |
(2) Subsections (3) and (4) apply where a person is arrested under a warrant issued | 40 |
under subsection (1). | |
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