(b) references in this Part to the Court of Appeal are to be construed as
references to that division.
Retrial for serious offences
Cases that may be retried
60 Cases that may be retried
(1) This Part applies where a person has been acquitted of a qualifying offence in
(a) on indictment in England and Wales,
(b) on appeal against a conviction, verdict or finding in proceedings on
indictment in England and Wales, or
(c) on appeal from a decision on such an appeal.
(2) A person acquitted of an offence in proceedings mentioned in subsection (1) is
treated for the purposes of that subsection as also acquitted of any qualifying
offence of which he could have been convicted in the proceedings because of
the first-mentioned offence being charged in the indictment, except an
(a) of which he has been convicted,
(b) of which he has been found not guilty by reason of insanity, or
(c) in respect of which, in proceedings where he has been found to be
under a disability (as defined by section 4 of the Criminal Procedure
(Insanity) Act 1964 (c. 84)), a finding has been made that he did the act
or made the omission charged against him.
(3) References in subsections (1) and (2) to a qualifying offence do not include
references to an offence which, at the time of the acquittal, was the subject of
an order under section 62(1) or (3).
(4) This Part also applies where a person has been acquitted, in proceedings
elsewhere than in the United Kingdom, of an offence under the law of the place
where the proceedings were held, if the commission of the offence as alleged
would have amounted to or included the commission (in the United Kingdom
or elsewhere) of a qualifying offence.
(5) Conduct punishable under the law in force elsewhere than in the United
Kingdom is an offence under that law for the purposes of subsection (4),
however it is described in that law.
(6) This Part applies whether the acquittal was before or after the passing of this
(7) References in this Part to acquittal are to acquittal in circumstances within
subsection (1) or (4).
(8) In this Part “qualifying offence” means an offence listed in Part 1 of Schedule 4.
Application for retrial
61 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 proceedings within section 60(1), and
(b) ordering him to be retried for the qualifying offence.
(2) A prosecutor may apply to the Court of Appeal, in the case of a person
acquitted elsewhere than in the United Kingdom, 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.
(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
(a) there is evidence as respects which the requirements of section 63
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.
62 Determination by Court of Appeal
(1) On an application under section 61(1), the Court of Appeal—
(a) if satisfied that the requirements of sections 63 and 64 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 61(2).
(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 63 and 64 are met, must
make the order applied for;
(b) otherwise, must make a declaration to the effect that the acquittal is a
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
63 New and compelling evidence
(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 (nor, 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.
64 Interests of justice
(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 62.
(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
(3) In subsection (2) references to an officer or prosecutor include references to a
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.
65 Procedure and evidence
(1) A prosecutor who wishes to make an application under section 61(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
whom the application relates, charging him with the offence to which it relates
or, if he has been charged with it in accordance with section 71(4), stating that
he has been so charged.
(3) Subsection (2) applies whether the person to whom the application relates is in
the United Kingdom or elsewhere, but the Court of Appeal may, on application
by the prosecutor, extend the time for service under that subsection if it
considers it necessary to do so because of that person’s absence from the
(4) The Court of Appeal must consider the application at a hearing.
(5) The person to whom the application relates—
(a) is entitled to be present at the hearing, although he may be in custody
unless he is in custody elsewhere than in England and Wales or
Northern Ireland, and
(b) is entitled to be represented at the hearing, whether he is present or not.
(6) 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
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.
(7) 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.
(1) The Criminal Appeal Act 1968 (c. 19) is amended as follows.
(2) In section 33 (right of appeal to House of Lords), after subsection (1A) there is
“(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 61(1) or (2) of the Criminal Justice Act 2003
(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
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 62 of the Criminal Justice Act 2003 or a declaration under
section 62(4) of that Act has been made, and who”.
67 Restrictions on publication in the interests of justice
(1) Where it appears to the Court of Appeal that the inclusion of any matter in a
publication would give rise to a substantial risk of prejudice to the
administration of justice in a retrial, the court may order that the matter is not
to be included in any publication while the order has effect.
(2) In subsection (1) “retrial” means the trial of an acquitted person for a qualifying
offence pursuant to any order made or that may be made under section 62.
(3) The court may make an order under this section only if it appears to it
necessary in the interests of justice to do so.
(4) An order under this section may apply to a matter which has been included in
a publication published before the order takes effect, but such an order—
(a) applies only to the later inclusion of the matter in a publication
(whether directly or by inclusion of the earlier publication), and
(b) does not otherwise affect the earlier publication.
(5) After notice of an application has been given under section 65(1) relating to the
acquitted person and the qualifying offence, the court may make an order
under this section only—
(a) of its own motion, or
(b) on the application of the Director of Public Prosecutions.
(6) Before such notice has been given, an order under this section—
(a) may be made only on the application of the Director of Public
(b) may not be made unless, since the acquittal concerned, an investigation
of the commission by the acquitted person of the qualifying offence has
been commenced by officers.
(7) The court may at any time, of its own motion or on an application made by the
Director of Public Prosecutions or the acquitted person, vary or revoke an
order under this section.
(8) Any order made under this section before notice of an application has been
given under section 65(1) relating to the acquitted person and the qualifying
offence must specify the time when it ceases to have effect.
(9) An order under this section which is made or has effect after such notice has
been given ceases to have effect, unless it specifies an earlier time—
(a) when there is no longer any step that could be taken which would lead
to the acquitted person being tried pursuant to an order made on the
(b) if he is tried pursuant to such an order, at the conclusion of the trial.
(10) Nothing in this section affects any prohibition or restriction by virtue of any
other enactment on the inclusion of any matter in a publication or any power,
under an enactment or otherwise, to impose such a prohibition or restriction.
(11) In this section—
“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
programme is to be taken to be so addressed), but does not include an
indictment or other document prepared for use in particular legal
“relevant programme” means a programme included in a programme
(1) Where a person—
(a) is tried pursuant to an order under section 62(1), or
(b) is tried on indictment pursuant to an order under section 62(3),
the trial must be on an indictment preferred by direction of the Court of
(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
(b) there is a good and sufficient cause for trial despite the lapse of time
since the order under section 62.
(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
of acquittal of the qualifying offence, or
(b) in the case of a person acquitted elsewhere than in the United Kingdom,
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
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 62.
(6) Evidence given at a trial pursuant to an order under section 62(1) or (3) must
be given orally if it was given orally at the original trial, unless—
(a) section 99 applies, or
(b) the witness is unavailable to give evidence, otherwise than as
mentioned in subsection (2) of that section, and section 107(1)(d)
(7) At a trial pursuant to an order under section 62(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.
69 Authorisation of investigations
(1) This section applies to the investigation of the commission of a qualifying
offence by a person—
(a) acquitted in proceedings within section 60(1) of the qualifying offence,
(b) acquitted elsewhere than in the United Kingdom of an offence the
commission of which as alleged would have amounted to or included
the commission (in the United Kingdom or elsewhere) of the qualifying
(2) Subject to section 70, an officer may not do anything within subsection (3) for
the purposes of such an investigation unless the Director of Public
(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
(b) has given his written consent to the investigation (whether before or
after the start of the investigation).
(3) The officer may not, either with or without the consent of the acquitted
(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,
(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 an officer who—
(a) if he is an officer of the metropolitan police force or the City of London
police force, is of the rank of commander or above, or
(b) in any other case, is of the rank of assistant chief constable or above.
(5) An officer may make an application under subsection (4) only if—
(a) he is satisfied that new evidence has been obtained which would be
relevant to an application under section 61(1) or (2) in respect of the
qualifying offence to which the investigation relates, or
(b) he has reasonable grounds for believing that such new evidence is
likely to be obtained as a result of the investigation.
(6) The Director of Public Prosecutions may not give his consent unless satisfied
(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,
(b) it is in the public interest for the investigation to proceed, and
(c) he has sought leave from a judge of the Crown Court on an ex-parte
(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 or specified team of customs and excise officers.
70 Urgent investigative steps
(1) Section 69 does not prevent an officer from taking any action for the purposes
of an investigation if—
(a) the action is necessary as a matter of urgency to prevent the
investigation being substantially and irrevocably prejudiced,
(b) the requirements of subsection (2) are met, and
(i) the action is authorised under subsection (3), or
(ii) the requirements of subsection (5) are met.
(2) The requirements of this subsection are met if—
(a) there has been no undue delay in applying for consent under section
(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.