The High Court has consented to the prosecution in the United Kingdom of a man for an alleged rape in 1982, despite his acquittal at trial in 1983.
In a judgment delivered on 25 January 2010, Mr Justice Michael Peart ruled that the acquittal did not prevent consent under the European Arrest Warrant Act 2003. The court was satisfied that the UK Court of Appeal was likely to quash the acquittal and order a retrial, and that the man would not face a second trial while the acquittal remained in force.
The man had voluntarily consented to surrender to the UK after a European arrest warrant was issued for a separate rape offence committed in 2002. He pleaded guilty to that offence in June 2008 and received a nine-year prison sentence the following month, which he was serving at the time of this application.
The UK authorities sought consent to prosecute him for the 1982 offence, which the judgment says was allegedly committed when he was 16. The judgment records that newly acquired DNA evidence, unavailable at the 1983 trial, had linked him to the allegation. The UK Director of Public Prosecutions applied to have the acquittal quashed, and the man was charged again in February 2009. The UK Court of Appeal adjourned its decision on the application while consent was sought from the High Court in Ireland.
The man’s counsel argued that the subsisting acquittal was a final judgment under section 41 of the 2003 Act, preventing the High Court from consenting. Counsel for the Minister argued that the provision addressed repeat proceedings across member states and did not bar a retrial in the same state after an acquittal was quashed.
Justice Peart said section 41 had to be interpreted, where possible, consistently with the EU Framework Decision. He concluded that its protection against double jeopardy did not require refusal of consent where the issuing state had procedures to quash the acquittal and the evidence showed that the UK Court of Appeal would probably do so and order a retrial. He was satisfied that the statutory conditions for consent had been met and granted consent to prosecution for the 1982 offence.
The judgment grants consent; it does not itself quash the 1983 acquittal or order a retrial. Those steps remained for the UK Court of Appeal.