Commentary on Sections Part 10: Retrial for Serious Offences Section 84: Retrial
328.Section 84 makes provisions relating to the holding of retrials. An acquitted person may only be retried on an indictment preferred by the direction of the Court of Appeal. Arraignment on this indictment must be made within two months of the date on which the Court ordered a retrial, unless the Court allows a longer period. The Court can only extend this period if it is satisfied that the prosecutor has acted with due expedition since the order was made, and that there is still a good and sufficient reason to hold the retrial despite any additional lapse of time.
329.If the acquitted person is not arraigned for the retrial within the two months or any further time allowed, then he can apply to the Court of Appeal to set aside the order for retrial and restore the previous acquittal; or in the case of people acquitted outside the United Kingdom, for a declaration that the acquittal constitutes a bar to any trial for the qualifying offence.
330.An indictment may relate to more than one offence or to more than one person, including offences for which the accused has not been tried before.
331.This section also brings the provisions for retrial into line with changes to the law in respect of hearsay evidence and the use of depositions made elsewhere in this Act. It provides that evidence given orally at an original trial must be given orally at the retrial unless an exception in subsection (6) applies.Section 85: Authorisation of investigations
332.Section 85 relates to the authorisation and conduct of police investigations. It requires the police to obtain the consent of the Director of Public Prosecutions before taking certain steps in the re-investigation of cases where new evidence has come to light, or where there are reasonable grounds to believe that further investigation will give rise to new evidence. The DPP must consider whether the previous acquittal constitutes a bar to a further prosecution. If the DPP certifies that in his opinion it does not constitute a bar, then there are no restrictions on police investigations into the offence. Where the previous acquittal does constitute a bar, the DPP’s consent is required for the taking of specified steps which impinge directly on the acquitted person, where police wish to interview or arrest him, search his person, vehicle or premises occupied by him, seize evidence or take fingerprints or samples from him, in connection with the qualifying offence. It does not permit such actions to take place without authorisation even with the consent of the acquitted person, as this would provide a means of carrying out re-investigations without using appropriate police powers. This provides a safeguard against any potential harassment of acquitted persons. The requirement for the DPP’s consent is not intended to hamper the police making other enquiries which do not directly impact on the life of the individual, for example by interviewing new or previous witnesses, or comparing fingerprint or DNA samples with records which they already hold.
333.An application for the DPP’s consent must be made in writing by an officer of Commander rank or above in the Metropolitan and City Police forces, or Assistant Chief Constable or above in other police forces or bodies of constables. It can be made where new evidence has already been obtained, or where he has reasonable grounds to believe that new evidence is likely to be obtained if the investigation proceeds. There must therefore be some “trigger” for the application; it is not intended that the re-investigation of an acquitted person can take place without any element of new evidence.
334.The DPP can only give his consent if he is satisfied that there is sufficient new evidence to justify the re-investigation, or that such new evidence is likely to come to light if the investigation goes ahead, and that it is in the public interest for the investigation to proceed. In giving his consent, the DPP may also recommend to the chief officer of the force requesting the consent, that another force should conduct the re-investigation. It will then be for the chief officer to make appropriate arrangements with another force which can provide an appropriate level of investigative expertise.
335.The section applies similarly to investigators of HM Customs and Excise who are responsible for investigating a number of the qualifying drugs offences.