Judges say van Hoogstraten should be retried over killing

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The Independent Online

The property tycoon Nicholas van Hoogstraten should be retried for manslaughter, three Court of Appeal judges have argued.

Mr van Hoogstraten was released from prison this week after an Old Bailey judge ruled that he had no case to answer in the death of his business rival Mohammed Raja.

But yesterday the Court of Appeal suggested that a second trial would serve the interests of justice. Under the current law, the court has no power to overturn a judge's decision to terminate a prosecution.

After giving detailed legal reasons for their decision on Monday to refuse the prosecution's appeal for a retrial, the judges said that the case had raised various questions about "how justice is to be done in similar cases in the future".

Mr van Hoogstraten, 58, from Uckfield, East Sussex, was freed on Monday after serving only one year of a 10-year jail sentence for his alleged involvement in the killing of his business rival Mr Raja by two men who are now serving life sentences for murder.

Last year, a jury found him not guilty of murder but guilty of manslaughter. That verdict was overturned and a retrial ordered by the Court of Appeal because of a "flawed" direction to the jury by the judge at the original trial.

He could not be retried for murder, having been acquitted of that offence. The problem then faced by the prosecution was that, in reindicting him for manslaughter as an offence in its own right rather than as a lesser alternative to murder, it had to produce evidence that he had participated in a joint venture with the killers and foresaw what they might do, even if he did not intend it.

The new trial judge ruled that, even if the prosecution could prove its case on the facts, there was no basis on which a jury could conclude that Mr van Hoogstraten had contemplated the act which caused death.

Giving the judges' full reasons for refusing the prosecution's appeal, Lord Justice Kennedy said: "It is of some importance for an appellate court to be able to consider whether the trial judge is right in his conclusion because, if he is, it is necessary to consider how justice is to be done in similar cases in the future.

"It may be that, when a retrial is ordered in the case of an appellant who has been convicted of manslaughter on a charge of murder, the prosecution should be entitled, if they choose, to seek again a conviction of murder."

He concluded: "Otherwise, as this case and other cases have shown, the prosecution is likely to be neutered by the partial acquittal. But that is a matter for Parliament and not for this court."

The Government has already introduced reforms which will grant the Court of Appeal new powers to overturn judge-directed acquittals.