When should a retrial be permitted after a conviction is quashed on appeal?

Chalmers, J. and Leverick, F. (2011) When should a retrial be permitted after a conviction is quashed on appeal? Modern Law Review, 74(5), pp. 721-749.

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Abstract

The power to permit a retrial after a conviction has been quashed on appeal is an established part of criminal procedure, with over a third of successful appeals against conviction in England and Wales now resulting in a retrial being ordered. Despite this, relatively little attention has been paid to the circumstances in which it is appropriate for such permission to be granted. This article reviews the practice of the courts, offering a rational reconstruction of the reported cases. It argues that appeal courts have improperly entered into consideration of matters which should properly be reserved to prosecutorial discretion. While retrial after a quashed conviction should only be possible with the permission of the appeal court, such permission should – where sought – always be granted unless insufficient competent evidence was led at the first trial or a second prosecution would be an abuse of process.

Item Type:Articles
Status:Published
Refereed:Yes
Glasgow Author(s) Enlighten ID:Chalmers, Professor James and Leverick, Professor Fiona
Authors: Chalmers, J., and Leverick, F.
College/School:College of Social Sciences > School of Law
Journal Name:Modern Law Review
Journal Abbr.:MLR
ISSN:0026-7961
ISSN (Online):1468-2230
Published Online:19 August 2011

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