EVIDENCE

Chapter 5: The Evidential

Significance of Earlier Judicial
Findings and Estoppels
(1) THE RULE IN HOLLINGTON V HEWTHORN
The rule in Hollington v F. Hewthorn & Co. Ltd. 1 states that the
fact that a defendant in a civil action has been convicted of a criminal
offence cannot normally be adduced for two reasons: (i) that the
conviction merely proved that another court acted on evidence which
was unknown to the tribunal trying the civil action, and (ii) that the
reception of the conviction as evidence infringed the hearsay rule as
well as the rule against opinion. In that case, the conviction of one of
the defendants for careless driving was held to be inadmissible in
proceedings for damages on that ground against him and his
employers. It must be noted that the rule has been abrogated so far
as it governs proof of convictions and findings of adultery and
paternity in civil proceedings by sections 11 to 13 of the Civil Evidence
Act 1968 and so far as it governs proof of convictions in criminal
proceedings by section 74 of the Police and Criminal Evidence Act
1984 (PACE).

(2) PREVIOUS CONVICTIONS IN SUBSEQUENT CIVIL

PROCEEDINGS

(A) In general
Section 11 (1) of the Civil Evidence Act 1968 provides that in civil
proceedings the fact that a person has been convicted of an offence
by any court in the UK or court-martial shall be admissible in evidence
for the purpose of proving that he committed the offence. Section 11
(2) further provides that where a person has been proved to have
been convicted of an offence by any court in the UK or a court-martial
he shall be taken to have committed the offence. A “conviction” within
the ambit of section 11 is one which is not subject to an appeal as
neatly illustrated in Re Raphael. 2 In that case, it was held that rather
than finally dispose of civil proceedings in reliance on a conviction
subsequently liable to be quashed, the civil proceedings should be
adjourned pending the appeal. Where a civil action is instituted by the
complainant after the conviction of the accused for a sexual offence, it

1
[1943] 1 KB 587, CA; noted in (1943) 59 LQR 299.
2
[1973] 1 WLR 998.

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is not an abuse of process to adduce evidence to discredit the

complainant in the civil action.
In J v Oyston 3 the plaintiff brought an action against the
defendant for damages for indecent assault and rape relying on the
defendant’s previous conviction pursuant to section 11 (1) of the Civil
Evidence Act 1968. The defendant sought to adduce evidence to
discredit the plaintiff having failed on similar evidence to overturn his
conviction on appeal. The plaintiff’s application to strike out part of the
defence as being an abuse of process or vexatious and disclosing no
reasonable defence was dismissed by the Divisional Court. Smedley J
ruled that section 11 of the 1968 Act made the conviction prima facie
but not conclusive (s.11 (2)) and that the statute permitted the
accused to challenge his conviction in a civil action. The trial judge
drew a distinction between a plaintiff who wanted to relitigate his
conviction in civil proceedings as in Hunter v Chief Constable of
West Midlands 4 (discussed later in this chapter) which would be an
abuse of process and a defendant who sought to persuade the judge
to take a different view from that of the jury, because to prevent the
accused from having the issue of his guilt reheard would be manifestly
unfair to him.
There remains, however, the issue of the weight to be attached
the conviction in subsequent civil proceedings. In Wauchope v
Mordecai 5 the Court of Appeal did not suggest that the burden cast
on the convicted defendant was a specially heavy one but in Taylor v
Taylor 6 it was said that the verdict of the jury finding the respondent
to divorce proceedings guilty of incest was entitled to great weight.
Lord Denning in Stupple v Royal Insurance Co. Ltd. 7 said: “I think
that the conviction does not merely shift the burden of proof. It is a
weighty piece of evidence”.

(B) Findings of adultery and paternity

Section 12 (1) of the Civil Evidence Act 1968 as amended by section
29 of the Family Law Reform Act 1987 provides that the fact that a
person has been found guilty of adultery and found to be father of a
child in relevant proceedings shall be admissible for the purpose of
proving that he committed adultery in a civil proceeding to which the
finding relates. In Sutton v Sutton 8 it was held that the burden of
disproving adultery was on a balance of probabilities. More recently, in
R v Secretary of State for Social Services, ex p. W 9, Johnson J

3
[1999] 1 WLR 694, DC.
4
[1981] 3 All ER 727.
5
[1970] 1 All ER 417.
6
[1970] 2 All ER 609.
7
[1970[ 3 All ER 230.
8
[1970] 1 WLR 183, PD.
9
(1999) The Times, 19 May.

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held that where a parental responsibility had been made on grounds

unrelated to paternity, that the order must satisfy the requirement of
“a finding or adjudication” as stipulated in section 12 of the Civil
Evidence Act 1968.

(C) Libel or slander

Section 13 (1) of the Civil Evidence Act 1968 provides that in an
action for libel or slander in which the question whether a person did
or did not commit a crime is relevant proof, that at the time the
person stands convicted shall be conclusive evidence that he
committed the offence. In Goody v Odhams Press Ltd. 10 the
plaintiff was convicted of robbery for his part in the ‘Great Train
Robbery’. The defendants’ newspaper, The People, published a story
the plaintiff alleged to be defamatory. The defendants amended their
defence to plead partial justification. It was held that the words of the
plea of partial justification in the amended defence, being severable,
were admissible and the defendants could prove the plaintiff’s
convictions; and that the plaintiff’s convictions, being cogent evidence,
were admissible in mitigation of damages.

(3) PREVIOUS CONVICTIONS IN CRIMINAL CASES

Section 74 (1) of PACE provides:
“In any proceedings the fact that a person has been
convicted of an offence by or before any court in the United
Kingdom or by a Service court outside the United Kingdom
shall be admissible in evidence for the purpose of proving
where to do so is relevant to any issue in those proceedings,
that person committed that offence whether or not any
other evidence of his having committed that offence is
given.”

In R v O’Connor 11 where the plea of guilty made by a co-accused

was admitted at the defendant’s trial for conspiracy to obtain property
by deception, the Court of Appeal held that the trial judge should have
excluded the evidence under section 78 of PACE. But matters came to
a head in R v Robertson and Golder. 12 In that case, R was tried on
a count of conspiracy with two other men to commit burglaries. The
two other men pleaded not guilty to conspiracy but guilty to relevant
counts of burglary with which R was not charged and they were
sentenced. At the trial of R, which was delayed for some weeks, the
prosecution sought leave which was granted to tender the pleas of

10
[1966] 3 WLR 460, CA.
11
(1987) 85 Cr App R 298, CA.
12
[1987] 1 QB 920, (1987) 85 Cr App R 304.

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guilty under section 74 of PACE. R was convicted. G was tried on a

count of robbery and evidence of the pleas of guilty to the offence by
two co-defendants who had not been sentenced was tendered. G was
convicted.
R appealed on the ground that the plea of guilty should be
excluded under section 78 of PACE and G appealed on the ground that
in his own case the two co-defendants had not been “convicted” within
section 74 (1) of PACE. Dismissing the appeals, the Court of Appeal
held that the word “convicted” within section 74 (1) was to be
construed as a finding of guilt or a formal plea of guilty and not as
meaning the final disposal of the case. Lord Lane CJ said that in order
to admit evidence of a co-accused’s conviction (including a plea of
guilty) it was necessary to observe the following principles: 13
“(a) the conviction [or plea of guilty] must be clearly
relevant to an issue in the case 14;
(b) s.74 [of PACE] must be sparingly used 15;
(c) the judge should consider the question of fairness
under s.78 [of PACE] and whether the probative value
of the conviction outweighs its prejudicial value 16; and
(d) the judge must direct the jury clearly as to the issues
to which conviction is not relevant and also why the
evidence is before them and to what issue it is
divided.” 17
In Kempster 18 the Court of Appeal held that the plea of guilty could
not be admitted by the judge without adhering to the guidelines
enunciated above.
Two decisions on the admissibility of convictions under section 74
of PACE are worthy of note. In R v Warner, R v Jones 19, W and J
were charged with conspiracy to supply heroin and with supplying the
same. The prosecution sought and were granted leave to adduce in
evidence pursuant to section 74 the fact that eight visitors to the
address of one of the defendants observed by the police had previous
convictions for possession or supply of heroin. The defendants were
convicted and appealed, inter alia, on the ground that the evidence
should not have been admitted under section 74. The Court of Appeal,
dismissing the appeals, held that whilst the evidence was rightly
admitted under section 74 and it could not be said that the trial judge

13
[1987] 1 QB 920 at 921; (1987) 85 Cr App R 304 at 305.
14
R v Robertson and Golder, supra, and R v Chapman [1991] Crim LR 44.
15
R v Dixon (Sarah Louise)(2000) 164 JPR 721, [2001] Crim LR 126.
16
R v O’Connor, supra, and R v Kempster [1989] Crim LR 747.
17
R v Warner, R v Jones (1993) 96 Cr App R 324.
18
Supra, n.16.
19
Supra, n.17.

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had wrongly exercised his discretion under section 78 it might have

been wiser not to adduce the evidence since it added little to an
already strong case against W and J.
More recently, in R v Hasson and Davey 20 H and D were found
guilty of being concerned in the supply of cannabis resin but acquitted
on a similar count relating to cannabis. The prosecution successfully
applied for the admission, under section 74, of the previous drug-
related convictions of six men said to be associates of H and D. The
defendants appealed. Allowing the appeals, the Court of Appeal held
(i) that before the convictions could be admitted under section 74 they
must be shown to be relevant to an issue in the case 21 and (ii) that in
contrast to Warner and Jones, it was not the prosecution case that
H and D were supplying cannabis resin to those whose convictions
were adduced.
It must be stressed, however, that the courts have consistently
allowed the pleas of guilty where the guidelines enunciated in
Robertson and Golder have been adhered to. In R v Chapman 22 C
was charged with conspiracy to obtain by deception with seven others.
Towards the end of the prosecution case B, C’s brother, a co-accused
pleaded guilty to two specific counts. The prosecution were permitted
to reopen their case to adduce evidence of B’s plea of guilty under
section 74. Again, in R v Boyson 23 B was charged with being
concerned with the importation of ecstasy with four others, three of
whom pleaded guilty to the same count as other counts. The
principles in Robertson and Golder were applied and the pleas of
guilty were admitted under section 74.

(4) ESTOPPEL

(A) Introduction
“Estoppel” simply means that “a party is not allowed, in certain
circumstances, to prove in litigation particular facts or matters which,
if proved, would assist him to succeed as plaintiff or defendant in an
action.” 24 Estoppel can be regarded as a matter of pleading or
substantive law 25 but is also an exclusionary rule of evidence. 26 There
are three types of evidence, viz. (i) estoppel by record, (ii) estoppel
by deed, and (iii) those in pais. Estoppel in pais, we are told,

20
[1997] Crim LR 579.
21
See R v Robertson and Golder, supra.
22
Supra, n.14.
23
[1991] Crim LR 274.
24
Diplock LJ in Thoday v Thoday [1964] 1 All ER 341.
25
Lord Kenyon in Hayne v Maltby (1789) 3 TR 438.
26
Lindley LJ and Bowen LJ in Low Bouverie [1891] 3 Ch. 82 and Farwell LJ in
Harriman v Harriman [1909] P.123.

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“developed as an ancient act of notoriety not less than the formal

execution of a deed” 27 but in modern times extends to almost any
situation where it is unconscionable to allow a party to deny a fact or
the existence of a state of affairs because of his previous behaviour.
In its modern connotation, estoppel in pais includes estoppel by
conduct, by negligence, by agreement and by acquiescence.
Estoppel by Record. The judicial basis of estoppel by record is stated
in two maxims. The first is interest rei publicae ut sit finis litium: it is
for the common good that there should be an end to litigation. The
secondis nemo debet bis vexari pro aedem causa: no one should be
sued twice on the same ground. For estoppel by record to apply the
court must be of competent jurisdiction. In R v Hutchings 28 it was
held that there was no estoppel when the justices exceeded their
jurisdiction by declaring that a road was a highway. Estoppel by
record inter partes (between parties) per rem judicatam (in respect of
the thing actually in dispute already adjudicated upon) is of two types,
viz. (i) cause of action estoppel, and (ii) issue estoppel.

(B) Issue and cause of action estoppels

(i) General rule

According to Lord Denning in Fidelitas Shipping Co. Ltd v v/o
Exportchleb, “within one cause of action there may be several issues
which are necessary for the determination of the whole case. The rule
then is that, once an issue has been raised and distinctly determined
between the parties, then, as a general rule neither party can be
allowed to fight that issue all over again”. 29
The three conditions for establishing issue estoppel (same as
those governing cause of action estoppel) are as follows:

(ii) Finality
A decision of an inferior court (matrimonial causes apart) will operate
as an estoppel in the High Court provided it is a decision from which
there could have been no appeal.
In Concha v Concha 30 it was held that matters which are
unnecessary to the decision will not estop either strangers or parties
to a grant of probate of a will did not estop interested parties from
denying the recorded domicile of the testator. But finality raises
another issue: whether there are exceptions to the general rule that
the use of a civil action to initiate collateral attack on final decision is

27
M.N. Howard, et al., Phipson On Evidence (London: Sweet & Maxwell, 2000), at
92-93.
28
(1881) 6 QBD 300.
29
[1966] 1 QB 630 at 640; [1965] 2 All ER 4 at 8.
30
(1986) 11 App Cas 541.

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an abuse of process. This issue was discussed by the House of Lords

in Hunter v Chief Constable of West Midlands. 31 In that case, the
accused persons were charged with murder for bombing two
Birmingham public houses and killing as a result 21 people and
injuring 161 others. At a voir dire (a trial within a trial) it was
established that the accused persons had not been beaten up whilst in
custody. The accused were convicted and later issued writs against
the Chief Constable of West Midlands and Lancashire Police and also
against the Home Office for injuries caused by the police. On appeal to
the House of Lords, it was held that where a final decision had been
made by a criminal court of competent jurisdiction it was a general
rule of public policy that the use of civil action to initiate a collateral
attack on the issue was an abuse of process. The exception to the
general rule was stated by Lord Diplock in the following terms:
“There remains to be considered the circumstances in which
the existence at the commencement of the civil action of
‘fresh evidence’ obtained since the criminal trial and the
probative weight of such evidence justify making an
exception to the general rule of public policy that the use of
civil actions to initiate collateral attacks on final decisions
against the intending plaintiffs by courts of competent
jurisdiction should be treated as an abuse of the process of
court.” 32

It must be noted that whilst the rule in Hunter has been applied
consistently 33, the concept of issue estoppel is one to be used with
caution. 34

(iii) Identity of parties

An estoppel per rem judicatam operates where the parties to the
proceedings in question are the same as the parties to the previous
proceedings and their privies. This was neatly illustrated in
Townsend v Bishop 35 where P was injured when driving his father’s
car in a collision with D’s lorry. P sued for damage to the car. D’s plea
was contributory negligence of P who was acting as his father’s agent.
D’s plea succeeded but it was held that P was not estopped from
denying his contributory negligence in action in which he claimed
damages for personal injuries.

31
[1981] 3 All ER 727.
32
Ibid., p.736.
33
Nawrot v Chief Constable of Hampshire Police (1992) The Independent, 7
January, CA; Re A Solicitor (1996) The Times, 18 March, DC; and Smith v Linksills
(a firm) [1996] 2 All ER 355.
34
See Friend v Civil Aviation Authority [2002] 4 All ER 385, CA
35
[1939] 1 All ER 805.

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Again, in Carl Zeis Stiftung v Rayner & Keeler (No. 2) 36 where

in a previous action brought in German courts it had been held that
the Plaintiffs, a body known as the Council of Caera, had no right to
represent Stiftung. The Stiftung then brought an action in English
courts by an English firm of solicitors. It was held that no estoppel
precluded the solicitors or Stiftung from alleging that the action was
duly authorised. More recently, in Mecklermedia Corporation v D.C.
Congress Gmbh 37 it was held that proceedings commenced in
Germany for an alleged infringement of the German trade mark
registration against a licensee of a plaintiff who brought a passing off
action in England against the German trade mark holder, were not
proceedings for the same cause of action between the same parties
for the purposes of Article 21 of the Convention on Jurisdiction and
Enforcement of Judgments in Civil and Commercial matters signed at
Brussels in 1968.

(iv) Same capacity

An estoppel per rem judicatam may arise where the parties in
question are litigating in the same capacity as in the previous
proceedings as in Marginson v Blackburn Borough Council 38
where both parties had been defendants in a county court action in
which a plaintiff claimed damages for negligence and they had been
held both to blame. This was held to estop the plaintiff (Mr.
Marginson) in this action for maintaining in his personal capacity that
he was not to blame.

(iv) Same issues

An estoppel per rem judicatam only operates if the issue in the
proceedings in question is the same as that which was litigated in the
previous proceedings. This is illustrated by two tax cases. The narrow
view in Hoystead v Income Tax Commissioner 39 is that a tax
authority is estopped from making an assessment for the current tax
year by a previous judgement relating to an assessment for the
previous year. This decision was not followed in Caffoor v
Commissioner for Income Tax Columbo 40 where it was held that
the Commissioner of Income Tax was not estopped by the decision of
the Board of Review for the year 1949-50 from challenging Caffoor’s
Trustees’ claim to exemption for the following years.

36
[1967] 1 AC 853, [1966] 2 All ER 536.
37
(1997) The Times, 27 March, Ch. D. See also C (A Minor) v Hackney London
Borough Council [1996] 1 WLR 789, CA.
38
[1939] 1 All ER 273, [1939] 2 KB. 426.
39
[1926] AC 155, PC.
40
[1961] AC 584. See also Randolph v Tuck [1962] 1 QB 175 and Society of
Medical Officers of Health v Hope [1960] AC 551.

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 EVIDENCE

(C) Matrimonial causes

The rule enunciated by Denning LJ (as he then was) in Thompson v
Thompson 41 states that in matrimonial causes estoppel binds the
parties (the petitioner and respondent) but not the court. Again, in
Harriman v Harriman 42 W obtained a separation order from
magistrates on the ground of H’s desertion. W later petitioner for
divorce on the grounds of adultery and desertion and she had to
establish both of these matrimonial offences. It was held that H might
be estopped from denying the desertion but the court was not bound
by the findings of the magistrates. These views received statutory
force by virtue of section 4 (1) of the Matrimonial Cause Act 1973.

(D) The situations in criminal cases: Autrefois acquit and

autrefois convict
Autrefois acquit is the plea that the accused has been previously
acquitted whilst autrefois convict is the plea that the accused has been
previously convicted. According to Blackstone, the pleas of autrefois
acquit and autrefois convict are “grounded on the universal maxim of
the common law in England that no man is to be brought into
jeopardy of his life more than once for the same offence” 43 – the
principle of double jeopardy.
These pleas enable a person charged in later criminal proceedings
to raise a defence that he has been convicted. The plea of autrefois
acquit was considered in the cause célèbre Sambasivam v Malaya
Public Prosecutor. 44 In that case, the appellant at his first trial was
charged with two offences, carrying a firearm and being in possession
of ammunition. He was acquitted of the second charge and a new trial
was ordered on the first. At the new trial, the prosecutor relied on an
admission to the effect that he was both carrying a firearm and in
possession of ammunition. His conviction on the charge of carrying a
firearm was quashed because the triers of fact had not been told that
the part of the statement dealing with ammunition was untrue. This
case must be contrasted with two other cases. In R v Griffiths 45 it
was held that the plea of autrefois acquit failed because the second
offence (conspiracy to import cocaine) was different from the first
offence (conspiracy to supply cocaine or being in possession with
intent) for which the defendant had been previously acquitted. Again,
in R v Z 46, the House of Lords held that evidence involving incidents

41
[1957] P.19.
42
[1909] P.123.
43
Sir William Blackstone, Commentaries on the Law of England (Dublin: Sweet,
Pheney, Maxwell, Stevens & Sons, 1829), Book IV, at 329.
44
[1950] A.C. 548, P.C. See also G (An Infant) v Coltart [1967] 1 QB 432, [1967] 1
All ER 271 and R v Ollis [1900] 2 QB 758.
45
[1990] Crim LR 181.
46
[2000] 3 All ER, HL discussed in Chapter 12.

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resulting in three prior acquittals of the defendant on charges of rape

could be adduced as similar fact evidence by the Crown in the charge
for which the defendant was standing trial.
The plea of autrefois convict was discussed in two leading cases.
In Richard v R 47 the Board advised that where the accused pleaded
guilty to manslaughter and counsel for the prosecution accepted the
plea, the accused could be charged subsequently with murder on a
fresh indictment because the plea of autrefois convict did not apply.
Although in R v Sheridan 48 which was followed in R v Grant 49 the
pleas of autrefois convict were sustained on the basis of guilt alone,
their Lordships concluded that the two cases were wrongly decided
and held that the underlying rationale of autrefois convict was to
prevent duplication of punishment. In other words, the plea could only
be sustained where there was a previous conviction on the same
charge as in R v Beedie 50 where the defendant, the landlord of a
property where a young woman died of carbon monoxide poison by
use of a defective gas fire, was prosecuted by the Health and Safety
Executive, pleaded guilty and was fined. At an inquest into the death,
the coroner required the defendant to give evidence ruling that he
could suffer no prejudice by answering questions tending to
incriminate him. A verdict of unlawful killing was returned. The
defendant was later charged with manslaughter. His application to
stay the indictment on the ground of autrefois convict was rejected by
the trial judge. The defendant pleaded guilty, was convicted and
appealed. The Court of Appeal, allowing the appeal, held:
• that the plea of autrefois convict or acquit was to be defined and
applied only where the same offence was alleged in the second
indictment as in the first;
• that in the instant case, a second trial on a more serious charge
arising out of the same or similar facts as the first might be
justified in special circumstances, and it was for the judge to
exercise his discretion whether there were such circumstances.
• that the public interest in a prosecution for manslaughter and for
concern for the victim’s family did not amount to such
circumstances; and
• that a stay should have been ordered since manslaughter was
based on the same facts as the earlier summary proceedings.

47
[1992] 4 All ER 897, PC.
48
[1937] 1 KB 223.
49
[1936] 2 All ER 1156.
50
[1997] 3 WLR 758, [1997] Crim LR 747, CA.

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(E) Issue estoppel in criminal cases

Issue estoppel is well-established in civil cases. According to Diplock
LJ in Mills v Cooper 51 the doctrine of issue estoppel in civil
proceedings may be stated as follows:
“A party to civil proceedings is not entitled to make, as
against the other party, an assertion, whether of fact or of
the legal consequences of facts, the correctness of which is
an essential element in his cause of action or defence, if the
same assertion was an essential element in the previous
cause of action or defence in previous civil proceedings
between the same parties or their predecessors in title and
was found by a court of competent jurisdiction in such
previous civil proceedings to be incorrect, unless further
material which is relevant to the correctness or
incorrectness of the assertion and could not by reasonable
diligence have been adduced by that party in the previous
proceedings has since become available to him.” 52

The question, however, is whether the doctrine applies to criminal

cases. In Connelly v DPP 53 three Law Lords expressed the opinion
that issue estoppel would be applicable on appropriate facts. Lord
Devlin felt that it was undesirable because of the difficulty of
ascertaining the precise issue. In R v Hogan 54 Lawson J ranked
himself with the three Law Lords. The disputation was, however,
resolved by the House of Lords in DPP v Humphreys 55 where it was
declared that issue estoppel did not apply in criminal proceedings. In
that case, the respondent was charged with driving a motor vehicle on
July 18, 1972, while disqualified. The only issue at the trial was
whether a police officer was correct in identifying the respondent as
the driver of a motor bicycle on that day. He denied driving any motor
vehicle during 1972 and was acquitted. Later he was charged with
perjury, the allegation being that at the first trial he had wilfully made
a statement which he knew to be false. The same police officer at the
first trial was a prosecution witness, with other at the second trial. The
judge, rejecting the plea of issue estoppel raised by the defence,
allowed the police officer to give evidence again identifying the
respondent as the driver of the motor bicycle which he had stopped on
July 18, 1972. The respondent was convicted. The Court of Appeal
allowed his appeal against conviction. The Crown appealed. The House
of Lords, allowing the appeal, held that the doctrine of estoppel had
no place in English criminal law and that the determination at the first

51
[1967] 2 QB 459.
52
Ibid.
53
[1964] AC 1254.
54
[1974] QB 398.
55
[1977] AC 1.

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trial of an issue in favour of the accused was no bar to the admission

at a second trial. Recently, in R v Z 56 the House of Lords held that the
principle of double jeopardy did not render inadmissible evidence of
previous acquittals as similar fact evidence but that the question of
fairness must be addressed and judges must exercise their discretion
under section 78 of PACE to exclude the evidence if admission would
be adverse to the fairness of the proceedings. 57

(F) Reopening a tainted acquittal

Sections 54-57 of the Criminal Procedure and Investigations Act 1996
(CPIA 1996) provided a procedure for a person to be retried if his or
her acquittal is tainted. This procedure is available where
(a) a person has been acquitted of an offence, and
(b) a person has been convicted of an administration of justice
offence involving interference with or intimidation of a juror or
witness (or potential witness) in proceedings which led to the
acquittal.
If the above conditions are met, the High Court may make an order
under section 54 (3) of CPIA 1996 quashing the acquittal, but only if
(1) It appears to the High Court that but for the interference or
intimidation, the accused person would not have been acquitted;
(2) it does not appear to the court that because of the lapse of time
or for any other reason, it would be contrary to the interests of
justice to take proceedings against the acquitted person for the
offence of which he or she was acquitted;
(3) it appears to the court that the acquitted person has been given
a reasonable opportunity to make written representation to the
court; and
(4) it appears to the court that the conviction for the administration
of justice offence will stand.
Where the acquittal is quashed under section 54 (3) of the CPIA 1996,
new proceedings may be taken against the acquitted person for the
offence of which he or she was acquitted.

56
Supra, n.45.
57
For comments on R v Z, see Roberts [2000] Crim LR 952, Birch [2000] Crim LR 293
and [2001] Crim LR 222, Tapper (2001) 117 LQR 1, Mirfield (2001) 117 LQR 194 and
Munday [2000] CLJ 468.

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(G) Reopening a final acquittal under sections 75-81 of

the CJA 2003
The Law Commission in its Consultation Paper No 156 58 recommended
a limited power to reopen an acquittal if new evidence emerged in all
cases in which the sentence for the offence would be at least three
years imprisonment. The Government in its White Paper Justice for
All stated:
“The double jeopardy rule means that a person cannot be
tried more than once for the same offence … The Stephen
Lawrence Inquiry Report recognised that the rule is capable
of causing grave injustice to victims and the community in
certain cases where compelling fresh evidence has come to
light after an acquittal. It called for a change in the law to
be considered, and we have accepted that such change is
appropriate. The European Convention on Human Rights
(Article 4 (2) of Protocol 7) explicitly recognises the
importance of being able to re-open cases, where new
evidence comes to light.” 59

Article 4 of Protocol 7 of the Convention states:

“(1) No one shall be liable to be tried or punished again in
criminal proceedings under the jurisdiction of the same
state for an offence for which he has already been
finally acquitted 60 or convicted in accordance with the
law and penal procedure of that State.
(2) The provision of the preceding paragraph shall not
prevent the re-opening of the case in accordance with
the law and penal procedure of the State concerned, if
there is evidence of new or newly discovered facts, or
if there has been a fundamental defect in the previous
proceedings, which could affect the outcome of the
case.
(3) No derogation from this Article shall be made under
Article 15 of the Convention.”
Article 4 (1) of Protocol 7 prohibits the bringing of proceedings only
where the defendant has been finally acquitted or convicted of the
offence now charged. The Explanatory Report to Protocol 7 states that
a decision is to be regarded as final for the purposes of Article 4 (1)

58
Double Jeopardy, HMSO, 1999, para. 5.48.
59
Cm 5563, 2002, para 4.64 (emphasis added).
60
See R v Terry (2004) The Times, 28 December where it was held that an acquittal
was not conclusive evidence of innocence unless by that word it was meant not guilty in
law of the alleged offence to which it related; nor did it mean that all relevant issues
had been resolved in favour of a defendant.

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“if, according to the traditional expression, it has acquired

the force of res judicata. This is the case where no further
ordinary remedies are available or when the parties have
exhausted such remedies or have permitted the time limit to
expire without availing themselves of them.”

Article 4 (2) of Protocol 7 must be distinguished from an appeal by the

prosecution. A prosecution appeal is a procedure which may be
invoked before the decision has become res judicata. Reopening is an
extraordinary procedure which may be invoked after the decision is
res judicata. Article 4 (2) permits a different way of challenging an
acquittal, namely, by persuading a higher court to “reopen” the
original proceedings. Article 14 (7) of the International Covenant on
Civil and Political Rights 1966 (ICCPR 1966) 61 applies both to the
reopening of an acquittal. The treaty body charged with implementing
the ICCPR expressed the view that the reopening of criminal
proceedings “justified by exceptional circumstances” did not infringe
the principle of double jeopardy.
Mindful of the above human rights provisions, the Government in
its White Paper Justice for All made the following proposals:
• “Should fresh evidence emerge that could not reasonably
have been available for the first trial and that strongly
suggest that a previously acquitted defendant was in fact
guilty, the Director of Public Prosecutions (DPP) will need
to give his personal consent for the defendant to be re-
investigated …
• Before submitting an application to the Court of Appeal to
quash an acquittal, the DPP will need to be satisfied that
there is new and compelling evidence and that an
application is in the public interest and a re-trial fully
justified.
• The Court of Appeal will have the power to quash the
acquittal where:
- there is compelling evidence of guilt; and
- the Court is satisfied that it is right in all the
circumstances of the case to be a re-trial.
• There will be scope for only one re-trial under these
procedures.
• The power [to reopen a final acquittal] will be
retrospective, that is, it will apply to acquittals which take

61
Article 14(7) of the ICCPR 1966 states:
“7. No one shall be liable to be tried or punished for an offence for
which he has already been finally convicted or acquitted in
accordance with the law and penal procedure of each country.”

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place before the law is changed, as well as those that

happen after.” 62
The above recommendations were effectuated by section 75 to 81 of
the Criminal Justice Act 2003 (CJA 2003).
Section 75 (1) of the CJA 2003 provides that an acquittal may be
retried if the acquittal relates to proceedings for a qualifying offence in
England and Wales or “elsewhere in the United Kingdom” if the
commission of the offence would have amounted to, or included, the
commission in the United Kingdom of a qualifying offence (section 75
(4)). The wording of section 75 (4) makes it plain that an acquittal in
Scotland is not to be regarded as relating to proceedings in a foreign
jurisdiction. The qualifying offences listed in Part I of Schedule 5 to
the CJA 2003 are murder, attempted murder, sexual offences,
criminal damage offences, war crimes and terrorism and conspiracy.
Section 75 (6) of the CJA 2003 provides that the power to retry an
acquittal is retrospective and prospective. It is worthy of note that the
retrospective aspect of the procedure engages and violates Article 6
(1) (the right to fair trial) and Article 7 (the prohibition of
retrospective application of criminal law) of the European Convention
on Human Rights.
Section 76 (1) of the CJA 2003 provides that the prosecution may
apply to the Court of Appeal for an order quashing a person’s acquittal
in proceedings within Section 75 (1) only with the written consent of
the DPP (section 7 (3)). Section 76 (4) provides that the DPP may
give consent if he is satisfied that –
(a) there is a “new and compelling evidence” within the meaning of
s.78 of the CJA 2003;
(b) it is in the public interest for the application to proceed; and
(c) any trial pursuant to an order on the application would not be
inconsistent with the obligations of the United Kingdom under
Article 31 or 34 of the Treaty on European Union relating to the
principle ne bis in idem (i.e. a person may not be prosecuted
twice for the same thing).

New and compelling evidence

Section 78 (1) of the CJA 2003 provides:
“(1) the requirements of this section are met if there is a
new and compelling evidence against the acquitted person
in relation to the qualifying offence.”

“New evidence” is evidence which “was not in the proceedings in

which the person was acquitted (nor, if those were appeal

62
Cm 5563, 2002, paras 4.65 and 4.66 (emphasis added).

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 EVIDENCE

proceedings, in earlier proceedings to which the appeal related)

(section 78 (2))”.
“Compelling evidence” is defined in section 78 (3) as follows:
“Evidence is compelling if –
(a) it is reliable,
(b) it is substantial, and
(c) in the context of the outstanding issues, it appears
highly probative of the case against the acquitted
person.”
Section 77 provides that the Court of Appeal, if satisfied by the
requirements of section 78 (new and compelling evidence) and that
the interests of justice are served (section 79), must make the order;
otherwise, must dismiss the application.
Two cases on reopening of final acquittal are instructive. In R v
Dunlop 63, D was tried for the murder of a young woman, H, but the
jury failed to agree on a verdict and he was discharged. At the retrial,
the Crown offered no evidence and a “not guilty” verdict was
recorded. D later confessed to the murder of H while serving a prison
sentence for an unrelated matter. D was arrested on suspicion of
perjury. At the interview, D admitted that he had killed H and had
made various confessions to her murder. In 2000, D was convicted on
two counts of perjury and sentenced to six years’ imprisonment. In
2005, when sections 75-78 of the CJA 2003 came into force, the
Crown applied to the Court of Appeal for an order quashing D’s
acquittal for the murder of H and ordering a retrial. The Court ordered
the quashing of D’s acquittal and a retrial on the grounds that there
was new, compelling and overwhelming evidence and that the public
would be outraged were the provisions of the CJA 2003 not to be
applied on the basis that D would not have made the confessions had
he known that they might lead to his retrial. It must be noted,
however, that in R v Miell 64 the Court refused to quash the conviction
and order a retrial since there were grounds to doubt the veracity of
the confession which D retracted. According to Lord Phillips, Miell
differs from Dunlop in that “Dunlop had never gainsaid the truth of
the confession that resulted in his conviction for perjury. 65

(H) Estoppel by deed

The rule of estoppel by record was adopted to estoppel by deed. A
party who executes a deed is estopped in a court of law from saying
that the facts are not truly stated. For example, in Bowman v

63
[2007] 1 WLR 1657, CA.
64
[2008] 1 WLR 627, CA.
65
Ibid, 635.

63
 EVIDENCE

Taylor 66 a lease granted by the plaintiff to the defendant to use looms

contained a recital that the plaintiff was the inventor of those looms.
In an action for breach of covenant to pay the agreed sums for their
use, the defendant was estopped from denying that the plaintiff was
the inventor.

(I) Estoppel by conduct

The doctrine of estoppel by conduct enunciated in Pickard v Sears
states that:
“Where one by his words or conduct wilfully causes another
to believe in the existence of a certain state of things, and
induced him to act on that belief, or to alter his previous
position, the former is precluded from averring against the
latter a different state of things as existing at that time.” 67

Although a private person may be estopped by either active or passive

conduct, it is not clear whether the same applies to the Crown.

(J) Estoppel by agreement

Where two people agree, expressly or by necessary implication, they
are estopped from denying the existence of the assumed state of
facts. 68

(K) Estoppel by representation

If a person intends his representation to be acted upon, and is acted
upon, the person will be precluded from denying the truth. Such a
representation may be express as in Carr v London and North
Western Railway Co. 69 where D’s agent told P that company held
three consignments of goods to his order when only two had been
received. P purported to sell three consignments and had to pay
damages to the purchaser of one of them. It was held that he could
not recover these from the defendant. Representation can also be
implied as in Greenwood v Martins Bank. 70 In that case, H’s failure
to disclose the fact that his wife had been forging his cheques was
held to estop him from alleging this to be the case in an action to
recover the amounts paid to his wife and debited to his account by the
bank.

66
(1834) 2 A& E 278. See also Baker v Dewey (1823) 1 B&C 704, Carpenter v
Butler (1841) 8 M&W 209, Green v Kettle [1938] AC. 156 and Church of England
Building Society v Piskor [1954] Ch. 553.
67
(1837) 6 Ad & El 469.
68
Amalgamated Investment and Property Co. Ltd. v Texas Commerce
International Bank Ltd. [1981] 1 All ER 923.
69
(1875) LR 10 CP 307.
70
[1933] AC 51.

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 EVIDENCE

(L) Estoppel by negligence

When the negligence of the defendant causes a person to believe in
the existence of a suppressed fact, and that person acts on the belief
with resulting damage, the defendant is estopped from denying the
existence of the suppressed fact. In Coventry, Sheppard & Co v
Great Eastern Railway 71 the railway company negligently issued two
delivery orders, not purporting to be duplicates, in respect of one
consignment of wheat, whereby a fraudulent person was enabled to
obtain two advances of money as on two separate consignments. The
company was held to be estopped by negligence from disputing that
there were two consignments. Estoppel by negligence will only apply
where there is a relationship of contract or agency between the
parties. In Mercantile Bank of India Ltd. v Central Bank of India
Ltd. 72 a firm of merchants pledged railway receipts entitling them to
certain goods with the Central Bank as security for a loan. The Central
Bank later returned the receipts to the merchants to enable them to
claim possession of the goods. The receipts were then delivered to the
Mercantile Bank in order to ascertain another loan. It was held that
the Central Bank was not estopped from asserting its prior claim to
the goods. There was no relationship of contract or agency between
the banks and the Central Bank had no reason to suppose that the
receipts would be handed to the Mercantile Bank.

71
(1993) 11 QBD 776.
72
[1938] AC 287. See also Moorgate Mercantile Co. Ltd. v Twitchings [1977] AC
890, HL.

65