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On appeal from: [2009] EWCA 2552

The question in this appeal was whether the Court of Appeal was right to order a retrial in respect of the appellant according to the ‘interests of justice’ test set out the Criminal Appeal Act 1968, s 7.

The appellant and his brother were convicted of murder and two robberies at Leeds Crown Court on 27 Feb 1998. Between Oct 1998 and Nov 2008 it emerged that there had been gross police misconduct in the course of the investigation. In November 2008 the Criminal Cases Review Commission made a reference to the Court of Appeal on the grounds that the convictions had been procured by gross prosecutorial misconduct on the part of the police. The appellant and his brother remained in prison during this period and between 1998 and 2004 the appellant made a series of admissions of guilt.

On 1 Dec 2009 the Court of Appeal quashed the convictions. The findings of misconduct were not challenged but the court held that the admissions made by the appellant between 1998 and 2004 constituted clear and compelling evidence of guilt and it was in the interests of justice to order a retrial.

The Supreme Court dismissed the appeal by a majority of 3:2. The judgment was handed down on 17 November 2010 but reasoning was withheld until the completion of the retrial. On 16 June 2011 in Leeds Crown Court Paul Maxwell pleaded guilty.

Lord Dyson gave the lead judgment. Lords Rodger and Mance gave short concurring judgments. Lords Brown and Collins dissented.  A decision of the Court of Appeal as to whether the interests of justice require a retrial should only be upset on appeal if it was plainly wrong in the sense that it is one which no reasonable court could have made or if the court took into account immaterial factors or failed to take into account material factors. It was common ground that the prosecution’s case at a retrial would not be based on any evidence that was the product of the misconduct. However, the new evidence constituted admissions made by the appellant that would not have been made but for the original misconduct which led to his conviction. The Court of Appeal was right to consider that the “but for” factor was no more than a relevant factor and that it was not determinative of the question whether a retrial was required in the interests of justice.

Lord Brown, with whom Lord Collins agreed, would have allowed the appeal. They would have held that since the appellant would not have made the admissions but for the prosecutorial misconduct and in light of the enormity of the police misconduct, it was inappropriate that that the case should be retried on new evidence.

For judgment, please download: [2010] UKSC 48
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII