Law Report: Justice requires murder case re-trial: Regina v Kennedy - Court of Appeal (Criminal Division) (Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Judge and Mr Justice Hidden), 19 February 1993

Where fresh evidence, which had come to light since a defendant's conviction, merited consideration by a fresh jury, it was in the interests of justice to quash the conviction and order a re-trial so that a jury could fulfil its function of evaluating the evidence.

The Court of Appeal ordered a retrial of a charge of murder against the appellant, Malcolm Goodbarn Kennedy.

The appellant was charged with murdering a prisoner sharing his police cell on 24 December 1990. The prosecution relied on scientific evidence concerning both the deceased's and appellant's clothing. The defence was that a police officer had killed the deceased and, relying on discrepancies in police records and evidence, contended the police had organised a cover-up to use the appellant as a scapegoat. In September 1991 the appellant was convicted.

Subsequently evidence was obtained which suggested a discrepancy in the police and documentary evidence. The Court of Appeal granted the appellant leave to appeal out of time.

The Crown argued the fresh evidence demonstrated sloppiness in police procedures but did not cast doubt on the jury's verdict. The appellant submitted, given the defence of a police cover-up, the evidence might have caused the jury to have doubts about the appellant's guilt and the conviction should be quashed.

Michael Mansfield QC and Dora Belford (Registrar of Criminal Appeals) for the appellant; Timothy Langdale QC and Nigel Sweeney (CPS) for the Crown.

LORD TAYLOR CJ, giving the judgment of the court, said that, having considered the further evidence and arguments, the court was unable to say that it could be sure that, had the jury heard the evidence, it would not have affected its verdict. The court could not say the verdict was safe and satisfactory. The whole of the evidence, including the further material, merited the consideration of a fresh jury. Onerous through it would be for all concerned, this was a case in which the interests of justice required that a re-trial was ordered.

The court emphasised that, in ordering a re-trial, it was not passing any judgment on the rival contentions argued. It would be quite wrong for the court to indicate a view one way or the other. That was the function of a jury. The appeal was allowed, the conviction quashed and a re-trial ordered.