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This week four people were acquitted of criminal damage after admitting to pulling down the Colston Statue in Bristol and throwing it into the Quay.
A number of commentators have expressed their outrage at the juries decision and have called for the Attorney General to appeal the acquittal.
In this article, we discuss the legal issues in play.
Unlike when a defendant is found guilty, where a number of potential appeal avenues exist, there is no general appeal avenue by which the prosecution can attempt to challenge an acquittal following a jury trial.
There are, however, three legal procedures that some people may mistakenly believe will offer an appeal route.
Sections 54 – 57 of the Criminal Procedure and Investigations Act 1996 enable the High Court to make an order quashing an acquittal in circumstances where the acquittal resulted from interference with, or intimidation of, a juror or witness (or potential witness). In such circumstances, an acquitted person can be re-tried for the original offence.
An application to quash an acquittal may only be made when:
- a person has been convicted of an “administration of justice” offence involving the interference or intimidation of a witness or juror;
- the court before which that person was convicted, “certifies” in accordance with section 54(2) of the Criminal Procedures and Investigations Act 1996 that there is a real possibility that the acquittal resulted from the interference or intimidation; and
- it would not, because of the lapse of time or for any other reason, be contrary to the interests of justice to take proceedings against the acquitted person for the offence of which they were acquitted.
“Administration of justice” offences for these purposes are:
- the offence of perverting the course of justice
- the offence of intimidation of witnesses, jurors or others, under section 51(1) of the Criminal Justice and Public Order Act 1994; and
- an offence of aiding, abetting, counselling, procuring, suborning or inciting another person to commit an offence under section 1 of the Perjury Act 1911.
Under section 54(3) and section 55 CPIA 1996, where a court provides a certificate of tainted acquittal, an application may be made to the High Court for an order quashing the acquittal.
The High Court will make an order if:
- it appears likely that the acquitted person would not have been acquitted were it not for the interference or intimidation;
- it would not be contrary to the interests of justice to take proceedings against the acquitted person;
- the acquitted person has been given a reasonable opportunity to make written representations to the court; and
- it appears likely that the conviction for the administration of justice offence will stand.
In this case, there is no suggestion of any interference with a juror or witness, so that brings this route to a close.
Part 10 of the Criminal Justice Act 2003 reforms the law relating to double jeopardy, by permitting retrials in respect of a number of very serious offences, where new and compelling evidence has come to light. Previously, the law did not permit a person who has been acquitted or convicted of an offence to be retried for that same offence.
Criminal damage is not listed as one of these very serious offences, so this route of challenge is not available in the Colston case.
Attorney General Clarifying a Point of Law
Where a person tried on indictment has been acquitted on all or part of an indictment, the Attorney General has the discretion to seek the opinion of the Court of Appeal on a point of law which has arisen in the case (section 36 (1) of the Criminal Justice Act 1972).
A Reference will only be appropriate if the ruling in question:
- Is sufficiently clear and precise to be capable of being challenged;
- Is concerned with a point of law, rather than the sufficiency of the evidence in the case; and
- Raises a point of practical importance which is likely to be followed in other cases.
Significantly though the procedure is to clarify the law. It is not a means to change the outcome of the individual case. (section 36(7) Criminal Justice Act 1972).
Therefore, even if the Judge erred in law during the Colston trial by allowing certain defences to go before the jury, it cannot result in the acquittal being quashed.
There will be no challenge that could affect the acquittals in this case, and there will be no retrial.
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