B, R. v

The trial of the offences involving the victim began on 16 June 1999. At the outset it was submitted to the trial judge that the proceedings should be stayed on the basis that they constituted an abuse of process; or, alternatively, that the evidence of the DNA match should be excluded in accordance with the discretionary provisions in section 78 of the Police and Criminal Evidence Act 1984 ("the 1984 Act"). The judge acceded to this submission and held that the evidence relating to the DNA match should be excluded. He based his conclusion on the structure of sections 61 to 65 of the 1984 Act which created an "exhaustive" code for the taking, use and retention of such samples. As these provisions had not been complied with, the Crown should not be permitted to use the material. The judge went further and added that if he were wrong in his conclusion based on the construction of the statute, the evidence would also have been excluded under section 78. It is not entirely clear from his ruling whether he found that the events he summarised amounted to an abuse of process or that it simply constituted a decision that the evidence sought to be relied on by the Crown should not be admitted. In any event, however, as his ruling meant that the evidence of the DNA match was excluded from consideration by the jury at the trial, the prosecution were left with no alternative but to offer no evidence. As the judge had said, on the basis of his ruling "the matter" could not "go forward". This was what would now be described as a terminating ruling.

In 1999, however, it was not open to the prosecution to appeal against such a ruling. The step available was to challenge the ruling on a point of law by way of a Reference by the Attorney General under section 36 of the Criminal Justice Act 1972. This was done. In May 2000 the Court of Appeal upheld the judge's ruling but referred to the House of Lords the question of the proper construction of sections 61 to 65 of the 1984 Act, and in particular section 64(3B). In December 2000, in Attorney General's Reference No 3 of 1999 [2001] 1 Cr App R 34, the House of Lords concluded that the decision of the trial judge was wrong and that the statute did not provide that evidence obtained in consequence of a breach of the statutory provisions in the 1984 Act was inadmissible. Neither the Court of Appeal nor the House of Lords was invited to consider the exercise of the judge's discretion to exclude the evidence under section 78. Nevertheless, the speeches in the House of Lords give the clearest possible indication that, if that question had been addressed, the decision of the trial judge on that issue, too, would have been found to have been mistaken. Notwithstanding the unequivocal ruling that the DNA evidence would have been admissible as a matter of law, and the intimation that the exercise of the discretion under section 78 was, at the very least, open to serious question, as the law then stood, this case was at an end. The opinion of the House of Lords in relation to sections 61 to 65 of the 1984 Act would be of importance in cases then current and subsequent cases, but not in this case.

This application requires the court to be satisfied that there is, in accordance with section 78 of the 2003 Act, "new and compelling evidence" against the acquitted person.

Section 78, so far as is relevant, provides:

The DNA evidence (using the phrase compendiously to cover all the evidence relating to the DNA samples and the circumstances in which they were obtained and retained) appears to be reliable, substantial and highly probative. Indeed, on the face of it, it is plainly compelling evidence. Although reserving the respondent's position in the event of any order for a retrial, no issue has been taken in argument before us on this aspect of the case.

The essential argument deployed in writing on behalf of the respondent was that the evidence now under consideration cannot be described as "new" in the context of and for the purposes of section 78(2). It is contended that it was "adduced" in the earlier proceedings when it formed the basis of the trial judge's ruling. The ruling that the evidence should not be admitted before the jury did not mean that it was not adduced in the proceedings. The argument is developed on the basis that the application by the prosecutor in truth constitutes an appeal against the terminating ruling in 1999, at a date when no such proceeding was available or permitted. In essence, the written submission invited us to consider that section 78(2) was not intended to constitute a process of appeal against a trial judge's ruling and, more significantly, that it was not intended by Parliament to apply to evidence available at trial but ruled inadmissible.

In our preparation for the hearing we examined these submissions. Subject to any oral argument which might be advanced at the hearing, we reached a clear conclusion. We have now heard oral argument. The way in which Mr Coonan developed it means that, in effect, he has withdrawn his submission, for good reason. Our conclusion is unchanged.

For the purposes of sections 75 to 79 of the Criminal Justice Act 2003 the word "proceedings" is not defined or explained. Reading these sections as a whole within their own context, it is clear that the word "proceedings" is designed to cover the entire process which resulted in the original acquittal. However, as a matter of statutory construction it does not follow that all evidence which was available to be deployed in the earlier proceedings must fall outside the ambit of the "new" evidence provision on which section 76 applications must, whether in whole or in part, be based. Subject to the interests of justice requirement found in section 79, evidence which was available to be used, but which was not used, may be "new" evidence for the purposes of section 78(2). This provides the context in which to reflect that section 78(2) is concerned with evidence -- that is admissible evidence capable of being deployed against a defendant in accordance with the rules of admissibility.

Evidence sought to be advanced by the Crown at the original trial was undoubtedly available to be considered by the trial judge when he was asked to decide whether the evidence could or could not be adduced in, or should be or should not be excluded from, the evidence to be placed before the jury. Without considering it, he could not provide a proper ruling on the question. However, once the judge ruled that it should not be admitted at the respondent's trial, notwithstanding that it was available for his consideration, and indeed that he considered it, it was not, in our judgment, "adduced" in the proceedings.

In the present case the judge ruled (wrongly, as the House of Lords found) that crucial admissible evidence should not be admitted. His ruling was wrong. As a result this crucial evidence was not, and could not be, adduced by the Crown in the proceedings against the respondent. In our judgment, the evidence excluded by the judge constitutes new evidence for the purposes of section 78(2) on the basis that it was never adduced in or brought forward for consideration as admissible evidence at the original trial. For present purposes, therefore, all the DNA evidence, whether available at trial or emerging from further investigation of the relevant material, constitutes new evidence.

Since preparing his written submissions, Mr Coonan has reconsidered his submissions. His researches took him to the Parliamentary debates on the issues. We are grateful to him for drawing them to our attention. From these debates it is clear that the language of clause 65(2) of the original Bill (the predecessor to section 78(2) of the Act to the effect that where at the original trial evidence was available in the broad sense, it should not be treated as new evidence) was deliberately amended to the current position that whether or not it was available, it is new evidence if it was not adduced in the proceedings.

The contents of the debate are entirely consistent with our interpretation of the statutory provision. Accordingly, the mere fact that evidence was available at the original trial does not mean that it was adduced in those proceedings.