2017/02970/B2
Neutral Citation Number: [2017] EWCA Crim 1333
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Thursday  7th  September  2017

B e f o r e:
LORD  JUSTICE  DAVIS

MR  JUSTICE  PHILLIPS

and

MR  JUSTICE  GARNHAM

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R E G I N A
 
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PATRICK  JOSEPH  REILLY

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Mr S Denison QC appeared on behalf of the Applicant Crown

Miss S Bennett-Jenkins QC and Miss J Mole appeared on behalf of the Respondent

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J U D G M E N T
Thursday  7th  September  2017

LORD JUSTICE DAVIS:  
Introduction
1.  By an application issued on 26th June 2017, with the prior consent given by the Director of Public Prosecutions, the prosecutor seeks to quash an acquittal of the respondent, Patrick Reilly, in respect of a count of murder.  The acquittal was the result of a jury verdict following a trial which culminated as long ago as 10th March 1986.   This application, and the way in which it has progressed, occurs in very unusual circumstances.  

The Background Facts
2.  The facts relating to the original murder trial are shocking and distressing.  They are these.  A young girl, Leonie Darnley, was born on 5th April 1977.  She lived with her mother (Denise) and her younger brother (Desmond) at an address in Atkinson House, a large block of flats in Battersea in London.

3.  On Tuesday 24th July 1984 she was wearing a red-and-white checked dress, a white vest, white knickers and red plastic sandals.  She had two plaits in her hair at the front and one at the back.  In the early afternoon, her mother, Leonie and Desmond joined a friend who was having a picnic on the grass outside the flats in question.  Leonie played with a number of friends.  At around 4pm her mother left her with her friends and with other nearby parents in order to go home with Desmond.  She was away for around 15 minutes.  Shortly after that, Leonie was seen to walk off alone in the direction her mother had gone.  That was the last sighting of her before it was realised that she was missing.

4.  As time passed by, without any sign of Leonie, her mother contacted Leonie's father who went to the flats.  He also called the police.  He searched for her in the basement of Atkinson House.  He found a pair of red sandals.  They were Leonie's shoes.  Friends and neighbours continued to search for her.  At around 10.15pm her body was found in a storeroom in the basement of Atkinson House.  She was unclothed.  She was lying face down on top of what appeared to be a pile of rubbish.  There were obvious long cuts to her body.  There was also a piece of cloth around her neck that covered her chin and mouth.  She was formally pronounced dead shortly thereafter.

5.  A post-mortem examination was undertaken the following day by Dr Shepherd.  He found that Leonie's throat had been cut, and that there were numerous other cuts to the body.  She had also been sexually assaulted.  The cause of death was at least two deep cuts to the front of her neck, which had severed her carotid artery and had led to severe blood loss and, mercifully at least in this respect, a relatively rapid death.  There were numerous other incisions to the body.  We need not give those details.

6.  In addition, amongst the items recovered from the scene of the murder were a brown blanket that was found alongside the right side of Leonie's body.  In addition, her red-and-white checked dress was around her legs.  Both items were heavily stained with blood.  Both items were stained with semen.  A number of light-brown coloured hairs were found on the blanket. The knickers and vest were never recovered.

7.  At the post-mortem examination a small light-brown hair was found within Leonie's own hair on the back of her head.  That was removed, along with one of her own hairs for examination.  Further, amongst the samples taken from the body in the course of the examination were an external vaginal swab and right-hand fingernail clippings.  Semen was found on the vaginal swab.  

8.  In due course, three of the light-brown hairs found on the blanket were compared with head and body hairs taken from the respondent, Patrick Reilly.  His head hair was described as being a light-brown/golden-brown colour.  His body hair was likewise similarly described.  It was said that hairs of his particular colour were relatively uncommon amongst the Caucasian population.  A microscopic examination indicated that the three hairs from the blanket were indistinguishable from body hairs taken from Reilly.  Two were described as being a "very good match".  The light-brown hair found on Leonie's hair was microscopically indistinguishable from Reilly's chest and arm hairs.  The conclusion of the forensic scientist at the time was that the hairs on the blanket and on Leonie's head "could well have come from Reilly".  Further, three blue acrylic fibres were found on her dress.  They were found to be microscopically indistinguishable from fibres in the cuffs, collar and waistband of Reilly's jacket subsequently retrieved.  The conclusion of the forensic scientist was that these fibres "could well have come from the jacket".  Taking the evidence of the hairs and the fibres together, the conclusion was this: "The results of the hairs and fibres' examination together indicate that it is highly likely that Reilly has been in contact with Leonie Darnley". 

9.  In the result, Patrick Reilley was arrested in Barnet on 17th October 1984.  He was not arrested in connection with the death of Leonie at this time; rather, he was arrested in respect of a rape earlier that day of a 15 year old girl.  At that time he was found to be in possession of what was described as a "rape kit" comprising: a hammer, knives, binding, a torch, maps and a disguise in the form of a woollen hat with false hair attached to it.  The blue jacket was recovered from his flat at an address in North London.

10.  In due course, Reilly was interviewed as a suspect for the murder of Leonie.  He was to admit in interview that he had been into the basement of Atkinson House, and even that he may have been in the area of Atkinson House earlier on the day of the murder.  He was to say in interview that he had been to Battersea on a number of occasions looking for work and scavenging.   He would take with him his bag containing, amongst other things, a knife and gloves.  He denied any involvement in the murder of Leonie.  

11.  In due course he pleaded guilty to the rape committed on 17th October 1984, as well as to a number of other serious sexual offences which we will come on to enumerate.  

The Original Trials
12.  At his first trial at the Central Criminal Court the jury could not agree on the count of murder of Leonie.  There was a retrial before Peter Pain J in 1986.  Because of the lapse of time it seems that the records available with regard to that retrial, which resulted in Reilly's acquittal, are not now available.  It was not even clearly established before us whether or not he gave evidence.  The indications are that he probably did not.

13.  At that trial, an application to admit the evidence of the other sexual offences in respect of which he had previously pleaded guilty was made to the trial judge.  But, under the law then applicable, the trial judge in his discretion declined to allow such evidence to be adduced.  It seems, therefore, that the evidence at trial was primarily directed at the hairs and fibres and Reilly's admission of having been to Atkinson House, an area which he had no obvious reason to visit.  The defence suggestion would appear to have been that, to the extent that these hairs and fibres were linked to him, that may have been as a result of indirect contact and did not evidence direct contact with, or killing of, Leonie.

14.  So far as the other sexual offences are concerned, they were six in number.  In respect of all of them Reilly had pleaded guilty. There were three offences of rape, one of attempted rape, and two of indecent assault.  The facts of the offences related first to the rape of a woman aged 21, on 17th August 1984, committed in an open area in North West London.  The second was the rape of a 22 year old woman, on 27th August 1984, at an address in West London.  Third, there was an attempted rape of a girl aged 15 in a wooded area at Kenwood House in North West London.  Fourth, there was an indecent assault on a 42 year old woman, again in the Kenwood House area.  Fifth, there was an indecent assault of a girl aged 12 at an address in North West London.  Sixth, there was a rape of a girl aged 15 in a wooded area in Totteridge in North London.

15.  The history of this offending showed, it was said, clear similarities with the facts of the murder of Leonie.  First, all these offences had been committed within three months of her killing.  Second, each offence was an opportunistic attack on a stranger in a public place.  Third, each was committed in daylight.  Fourth, each was a sexual attack against a young female involving significant violence.  Fifth, three of the attacks were on children: one aged 12, two aged 15.  Sixth, two of the attacks were committed in a block of flats.  Seventh, all of them had involved a knife, use of which was either threatened or actually deployed.  Eighth, four of the incidents had involved Reilly making the victim lie face down.  In addition, on the first two offences, there had been ejaculation.

16.  In the light of the acquittal, matters there rested so far as the killing of Leonie Darnley was concerned.  However, by reason of his convictions on his guilty plea to the various sexual offences Reilly was sentenced to life imprisonment.  Speedily thereafter, he was removed to a psychiatric hospital at Broadmoor.  He has remained there ever since.  

Renewed Investigations
17.  In the event, and in the light of continuing scientific and forensic developments, in June 2009 the then Director of Public Prosecutions gave his consent for the investigation of Patrick Reilly for the murder of Leonie Darnley, pursuant to the provisions of section 85 of the Criminal Justice Act 2003.  

18.  On 9th February 2010, Reilly was taken from Broadmoor hospital to a police station and a DNA mouth swab sample was taken from him.  In addition, he was interviewed under caution in the presence of his solicitor.  He made no comment to all questions asked of him.

19.  In June 2010 a Mr Whittaker, a scientist with the Forensic Science Service, examined and compared the mouth swab taken from Reilly with tapings from the piece of cloth that was around Leonie's neck, and also a microscopic slide containing cellular material from the external vaginal swab.  This was with a view to determining whether or not DNA profiling tests on those items could provide any scientific support for the assertion that semen from Patrick Reilly was present on the external vaginal swab and dress of Leonie Darnley, such that he might have had some form of direct sexual contact with her.

20.  At that time the standard DNA profiling methodology involved the use of what was called the "SGM+" system.  It is not necessary to give details as to how that worked.  At all events, in the course of his examination Mr Whittaker compared the mouth swab taken from Reilly with what had been found with regard to Leonie.  In the light of his examination, Mr Whittaker was to assess that it was approximately 12,000 times more likely that the DNA in question originated from cellular material from Leonie and semen from Patrick Reilly, rather than from Leonie Darnley and some other male individual unrelated to Patrick Reilly.  The conclusion of Mr Whittaker was to the effect that the DNA results were "in keeping with" Reilly having had direct sexual contact with Leonie Darnley, resulting in the transfer of his semen to her external vaginal area.  

21.  We were told by Mr Denison QC, appearing on behalf of the prosecutor today, that in the light of that the position was considered and that the decision was made at that time not to make an application seeking to quash the previous acquittal.  

22.  At all events, the matter was nevertheless kept under continuing review.  In May 2015, Mr Whittaker's results were re-evaluated by a Mr Turk, a forensic scientist at Cellmark Forensic Services, using specialised software for statistical evaluation that had not been available to Mr Whittaker.  The calculation of Mr Turk was that the result was approximately 29,000 times more likely if it comprised DNA from Leonie Darnley and Patrick Reilly than if it comprised DNA from Leonie Darnley and someone other than, and unrelated to, Patrick Reilly.  

23.  In addition, there were further and other investigations.  It appears that by July 2014 the standard DNA profiling methodology used in England and Wales generally had been significantly upgraded.  Cellmark Forensic Services, at all events, had been commissioned at the end of 2013 to undertake further examinations.  In May 2015 a sample of blood flakes recovered from Leonie's dress was examined by a Ms Woodruff, a scientist at Cellmark Forensic Services, using the updated profiling system.  She examined three examples from the right-hand fingernail clippings taken at the post-mortem examination.  The most informative result indicated a mixed DNA profile, containing DNA from at least three contributors.  This was carefully assessed.  The reference sample indicated that Leonie was fully represented and as such could be the source of a significant proportion of the DNA detected.  The DNA profile of Patrick Reilly, obtained from his mouth swab, was also indicative of his DNA being fully represented, such that he could also be a significant contributor to the DNA.

24.  The overall result as obtained was then evaluated by Mr Turk in June 2015, using the specialist software.  His calculation was that the result was approximately 1,200,000 times more likely if it comprised DNA from Leonie Darnley and Patrick Reilly and another unrelated person than if it comprised DNA from Leonie Darnley and two other people unrelated to Patrick Reilly.

25.  In March 2016 Reilly consented to a further DNA swab being taken from him.  That was analysed by Mr Turk at Cellmark Forensic Services in June 2016 and compared to the result obtained from the fingernail clippings.  He was to find that Leonie Darnley's reference profile was fully represented, as was Reilly's.  Mr Turk then undertook a further statistical evaluation.  His calculation on this occasion was that the result was in excess of 1 billion times more likely if it comprised DNA from Leonie Darnley and Patrick Reilly and another unrelated person than if it comprised DNA from Leonie Darnley and two other people unrelated to Patrick Reilly.

26.  Taking into account such matters, Ms Woodruff expressed the opinion that the amount of DNA detected was "sufficient to support a scenario" in which Patrick Reilly had direct contact with Leonie Darnley's nail, rather than his DNA having been deposited as a result of indirect contact.

27.  In the light of all this, the decision was ultimately made to seek to apply to have the previous acquittal quashed and for a retrial.  The application was issued, as we have said, on 26th June 2017.

The applicable provisions of the 2003 Act
28.  The right to apply for a trial in a case where a defendant has previously been acquitted is contained in Part 10 of the Criminal Justice Act 2003.  That applies in respect of qualifying offences, as defined.  Murder is one such offence.  The principal statutory provisions for present purposes, so far as relevant, are these: 

"76.  (1)  A prosecutor may apply to the Court of Appeal for an order –

(a)	quashing a person's acquittal in proceedings within section 75(1), and

(b)	ordering him to be retried for the qualifying offence.

…

77.  (1)  On an application under section 76(1), the Court of Appeal –

(a)	if satisfied that the requirements of sections 78 and 79 are met, must make the order applied for;

(b)	otherwise, must dismiss the application.

...

78.  (1)  The requirements of this section are met if there is new and compelling evidence against the acquitted person in relation to the qualifying offence.

(2)  Evidence is new if it was not adduced in the proceedings in which the person was acquitted (nor, if those were appeal proceedings, in earlier proceedings to which the appeal related).

(3)  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.

(4)  The outstanding issues are the issues in dispute in the proceedings in which the person was acquitted and, if those were appeal proceedings, any other issues remaining in dispute from earlier proceedings to which the appeal related.

(5)  For the purposes of this section, it is irrelevant whether any evidence would have been admissible in earlier proceedings against the acquitted person.

79.  (1)  The requirements of this section are met if in all the circumstances it is in the interests of justice for the court to make the order under section 77.

(2)  That question is to be determined having regard in particular to –

(a)	whether existing circumstances make a fair trial unlikely;

(b)	for the purposes of that question and otherwise, the length of time since the qualifying offence was allegedly committed;

(c)	whether it is likely that the new evidence would have been adduced in the earlier proceedings against the acquitted person but for a failure by an officer or by a prosecutor to act with due diligence or expedition;

(d) 	whether, since those proceedings or, if later, since the commencement of this Part, any officer or prosecutor has failed to act with due diligence or expedition.

(3)  In subsection (2) references to an officer or prosecutor include reference to a person charged with corresponding duties under the law in force elsewhere than in England and Wales.

(4)  Where the earlier prosecution was conducted by a person other than a prosecutor, subsection (2)(c) applies in relation to that person as well as in relation to a prosecutor."

29.  It is to be noted from these provisions that section 78(3) explains when "new" evidence, as defined, is "compelling".  It has been emphasised in various of the authorities that such statutory provisions require no real gloss.  In particular, the statute does not stipulate or require that such evidence, if new, be overwhelming and unanswerable.  Rather, it is to be compelling in the sense explained in the statute itself: see R v Dobson [2011] 2 CAR 8; R v MH [2015] EWCA Crim 585.  

The Application
30.  In the written application on behalf of the prosecutor, settled by Mr Denison, two evidential aspects were relied on which were said to be both new and compelling for the purposes of the statute.  First and foremost, reliance was placed on the new scientific evidence relating, in particular, to the DNA examinations and conclusions.  Such evidence had never been adduced at the previous trial.  Indeed, it could not have been in view of the then scientific position.  Second, Mr Denison sought to rely on Reilly's convictions on his guilty pleas for the various sexual offences which we have recounted, all committed in the few weeks after the killing of Leonie.  

31.  So far as those convictions following Reilly's guilty plea are concerned, there might perhaps be a dispute as to whether or not those are "new" evidence for the purposes of section 78(2), in that those matters were known about at the time and indeed an application was made at the retrial for those convictions to be adduced as similar fact evidence.  The trial judge had refused that application.  However, the point remains that, although the evidence of those convictions had been sought to be adduced at the trial, they had not in fact been adduced in evidence before the jury.  The point is then sought to be made that any application made under the modern provisions contained in section 101(1)(d) of the Criminal Justice Act 2007 to admit those convictions would nowadays most likely be viewed very differently from the way in which it was viewed under the law at the time in the 1980s.  

32.  Miss Bennett-Jenkins QC, appearing on behalf of the respondent (Reilly), has not sought to contest that, by reference to section 101(1)(d) of the Criminal Justice Act 2003, there would be a very strong case indeed for such evidence being allowed to be adduced.  However, it seems to us that as a matter of practice there was also much force in Miss Bennett-Jenkins' argument that the real focus of this application needed to be on the fresh evidence in the form of the scientific evidence.  If that of itself was new and compelling evidence, then perhaps the better way of treating the admissibility of the evidence of the previous convictions would, in this particular case, then be to leave that to the evaluation of the trial judge, if there were to be a retrial at all.  

33.  In the event, Mr Denison himself focused his attention on the forensic evidence since obtained.  We need not go into great detail on whether or not this was indeed new and compelling evidence, simply because Miss Bennett-Jenkins has, realistically – indeed, almost inevitably – accepted that for the purposes of the statute this evidence is indeed to be regarded as both new and compelling.  As the recital of the facts which we have given above indicates, this concession on her part was plainly right.  

34.  Consequently, the real focus of the argument before us, at all events as contained in the written arguments, has been on the application of section 79: put shortly, by reference to the question of the interests of justice.  It is, in this regard, quite clear that the matters listed in section 79(2), whilst matters being required to be taken into account, are not exhaustive of the relevant considerations.

Arguments and Disposition
35.  For the purposes of considering where the interests of justice now lie, it is necessary then to turn to the current and undisputed medical evidence relating to the respondent, Patrick Reilly.  As we have said, in 1986 he was transferred to Broadmoor.  He has been there ever since.  The undisputed psychiatric evidence before us is that he suffers from paranoid schizophrenia, which has not been, and is not, curable by treatment.  There has at no time been any prospect of his release from this secure custodial environment.  It is, amongst other things, said in the course of the evidence that Patrick Reilly now regards himself as a 15 year old virgin who cannot understand his convictions.  Further, the evidence is such that he is assessed as being unlikely ever to be fit to plead or stand a trial (in the normal sense of that word).  Mr Denison has very fairly accepted that on behalf of the prosecution.  

36.  Further, there is other medical evidence, which again is not challenged, that the respondent, Patrick Reilly, is now in the latter stages of terminal cancer.  On 23rd January 2017, he was diagnosed with a malignant tumour to the lower oesophagus.  The cancer is inoperable and incurable.  At that time his life expectancy was established as estimated at something less than a year, if he undertook chemotherapy, and but a few months if he did not.  In the result, he elected not to undergo chemotherapy.  

37.  On 9th August 2017, he was transferred to a physical healthcare suite at the hospital.  His treatment is now essentially palliative.  It is overseen by McMillan Palliative Care.  He is receiving significant quantities of morphine orally in order to relieve the pain.  This currently is being progressively replaced by injections, as swallowing becomes increasingly difficult.   On 9th August 2017 the opinion of the treating doctor was that Reilly's life expectancy was to be measured in weeks rather than months.  

38.  The most recent prognosis placed before us, obtained two days ago, indicates no further change and no expectation of change with regard to the imminence of his death: albeit it is emphasised that the expected survival time can only be approximate.   The cancer has now spread to his pelvis.  He is now essentially bedbound.  

39.  It is in such circumstances that Mr Denison has conceded that Reilly is under such a degree of disability, both mental (in terms of his psychiatric state) and physical, that he is not fit to plead or stand trial.  The question which, therefore, immediately arises is this: why has this application been made and pursued?

40.  In the written application it is said, amongst other things, that this was a very grave crime – as indeed it was.  This was not just a case of murder – grave enough of itself – but the brutal, sexually-motivated murder of a little girl playing outside her home.  It is further said that in such circumstances it is only right, both for Leonie's family and indeed for the public, that there be proper "closure" in respect of the killing.  Mr Denison has submitted that, on the footing that Reilly is to be assessed as unfit to plead or stand trial, fair procedures can still be available under the provisions of section 4 and section 4A of the Criminal Procedure (Insanity) Act 1964, whereby he can be properly represented and his case on the facts can be presented.  

41.  Nevertheless, given the current evidence, Mr Denison fairly concedes that there can be no full trial of Reilly, in the conventional understanding.  He is not fit to stand such a trial.  He cannot give instructions.  He cannot advance his defence.  He cannot participate.

42.  For her part, Miss Bennett-Jenkins has submitted on behalf of the respondent Reilly that it cannot be in the interests of justice, given the facts of this case, for there to be any retrial of any sort.  She emphasises that Reilly is so ill, both psychiatrically and physically, that he can give no instructions at all.  But matters, she emphasises, go further than that.  The current undisputed medical evidence is such that Reilly only has but a very short time further to live.  It is highly improbable that he will survive for more than a few months, let alone for a time sufficient for a further indictment to be presented, hearings obtained, experts instructed and then for a further substantive hearing to be fixed and to take place.  She also, if it be necessary, makes the obvious point that in the interim there is no question of Reilly being any kind of danger to the public because of his current position.  She emphasises the point that if there is to be a further retrial of some kind, it will inevitably be necessary for further expert evidence to be obtained on behalf of the defence; and that is likely to take a considerable period of time.  Amongst other things, questions of continuity and contamination will need to be explored; and the current conclusions of the experts instructed by the prosecution will also need to be re-evaluated, including no doubt, amongst other things, the question of indirect contact as compared to direct contact.  Furthermore, Miss Bennett-Jenkins has understandably sought to make the point that it can be said that it has taken several years for the prosecution to formulate its application.  They first re-investigated the matter in 2009.  Further instructions to the experts were given at the end of 2013.  But this application has only resulted some four years after that, in 2017.  All of this moreover, she emphasises, relates to an acquittal as long ago as 1986.  

43.  Before coming on to set out the stance of Mr Denison taken before us today at the hearing, we should flag up two initial – and to an extent related – points of concern, which this court has.  

44.  The first is that in the Application Notice it is expressly stated that the Director of Public Prosecutions would only wish to proceed in cases under section 76 where, in the light of the new evidence obtained, a conviction is highly probable.  Mr Denison told us that there is, as he understands it, published policy to this effect which has been in place for a number of years.  But, as the Crown accepts in this case, in the light of the medical and psychiatric evidence, there never will be such a conviction.  At most, by reference to sections 4 and 4A of the 1964 Act, there could be a hearing as to whether Reilly had done the act charged against him.  That, if the finding were that he had not, would result in an acquittal.  But if there were such a hearing and the finding was that he had done the act, that would not result, under the statutory provisions, in a conviction.  Consequently, the stated policy of the Director of Public Prosecutions, on the face of it, could not be achieved.  It thus might be queried why consent has been given to this application in the first place.

45.  Mr Denison was not in a position to give any full answer to this point when raised with him, he having not, we apprehend, anticipated it.  But he did suggest that it may be that the policy simply had not anticipated the present unusual scenario.   That may or may not be the case.  The fact remains that the stated policy, on the face of it, is – and understandably so – geared to the probability of a future "conviction" if a retrial is to be ordered.  

46.  That is one concern we have.  But we have another concern.  It will be borne in mind that section 76(1) relates to an application, amongst other things, seeking an order that the respondent "be retried for the qualifying offence".  Furthermore, by the express terms of section 79, amongst other things, one question to be borne in mind is whether the existing circumstances make a "fair trial" likely.  

47.  The query that we raised with Mr Denison, in the unusual circumstances of this case, is whether there ever could be a "retrial" of the kind contemplated by the statutory provisions.  We say this because on the evidence (and as, we repeat, Mr Denison has accepted) there can never be a retrial in the sense that would ordinarily be understood, resulting in a hearing before a jury and a verdict announced by a jury, be it guilty or not guilty.  On the contrary, at best – even leaving to one side whether or not Reilly would live that long – there would be a hearing under section 4A of the 1964 Act.  It is, in our view, however, to be queried whether that comes within the ambit of what is contemplated by the provisions of Part 10 of the Criminal Justice Act 2003. 

48.  We say that because, among other things, the language of sections 76 and 79 and also the provisions of section 84 of the Act do not fit at all well with the scenario apparently contemplated by the Crown: namely, proceeding to a hearing as to fitness to plead and then proceeding to a section 4A determination of whether the respondent had done the act with which he was charged.  Moreover, if one refers to the relevant provisions of the Criminal Procedure (Insanity) Act 1964, section 4A says this:

"(1)  This section applies where in accordance with section 4(5) above it is determined by a court that the accused is under a disability.

(2)  The trial shall not proceed or further proceed but it shall be determined by a jury –

(a)	on the evidence (if any) already given in the trial; and

(b) 	on such evidence as may be adduced or further adduced by the prosecution, or adduced by the person appointed by the court under this section to put the case for the defence, 

whether they are satisfied as respects the count or each of the counts on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence.

 …"

The language of that section thus seems sharply to distinguish between the trial itself and its continuing process, on the other hand, and the holding of a hearing, whereby it is to be determined by the jury whether or not the accused had done the act in question charged against him, on the other hand.

49.  In the circumstances we will come on to recount, we need express no concluded view on this point.  But we would like to flag this up as, at the very least, a reservation as to the prosecution's position here, that what they are seeking is a retrial within the ambit of Part 10 of the 2003 Act.  Whether a broad interpretation of the statutory provisions to that effect, for which the prosecution contend, is appropriate is at least debatable.

50.  The reason, however, why we need not give any definitive ruling on that point – and also because we did not hear much substantive argument on it – is this.  We are in no doubt at all that the requirements of section 79 are in any event not met.  Put shortly, we simply are not satisfied that it is in the interests of justice that this case be pursued.  

51.  Before the hearing today commenced, we had understood that this was to be a contested application: the prosecutor seeking quashing of the acquittal and a retrial; the respondent (Reilly) opposing that.  However, at the outset of his oral argument before us this morning, Mr Denison (it may be thought very fairly in the light of the evidence) indicated that he did not feel that he was in a position to advance an argument that it was in the interests that there should be a retrial.  He went further: he conceded that that position could not be maintained.

52.  In our view, the recital of the evidence indicates that that concession was properly made.  As we have said, not only is Reilly unable to give any instructions – and is not fit to be tried in any full sense of the word – but, put more shortly, his death is imminent.  If this case were to proceed, there would, in effect, be an unseemly race to try to get in as much evidence as possible before the inevitable death.  That simply would not be realistic.  It would take many months before the prospective evidence could be obtained – and of course on his death any criminal proceedings would necessarily then fall away.  We have to say that it would be most unedifying to try to hasten matters on simply in order to deal with the fact that Reilly is dying.  Indeed, it is a point of comment that this application itself was, on the request of the prosecution, listed to be heard urgently in the vacation.

53.  Given those circumstances, it cannot be fair or in the interests of justice that the acquittal be quashed or that a retrial be ordered.  In saying that, we do fully understand the horrific gravity of the circumstances relating to Leonie's death.  We do understand – of course we understand – the desire of Leonie's family and others to seek to achieve closure in this case.  We do understand the prospective strength of this new evidence.  But fairness also requires that a defendant has a proper and meaningful chance to defend himself.  This respondent never can, given the current circumstances.  Indeed, he will very shortly be dead.

Conclusion
54.  In those circumstances, and this court having taken that view – and indeed that being the position today conceded by the prosecution – this application must be dismissed.    In the light of that, and by reason of the operation of section 82 of the Criminal Justice Act 2003, all reporting restrictions previously in place with regard to this hearing, and this judgment, fall away.  

55.  This does prompt us, however, to make one other point.  As we have said, it was only today that this court was told that the prosecution was, in effect, conceding that it was not in the interests of justice for this acquittal to be quashed and a retrial ordered.  But at no stage – even today – has the prosecution sought to withdraw the application.  We did raise some concerns with Mr Denison that the consequence of the application being pursued might result in a judgment which would then achieve a degree of publicity: in circumstances where, in substance, the prosecution had not sought to pursue the application further.  

56.  Having raised this point with Mr Denison, we fully accept in this particular case that that has not been the object or intent of the exercise.  Indeed, given the particular circumstances of this case, and given our reservations about certain of the jurisdictional aspects which we have outlined and given also the whole background to this case, we have thought it appropriate fully to set out the background facts and the updated position on the evidence.  But it should be made quite clear for other cases, which we trust will never arise, that applications of this kind are not to be pursued simply and solely in order to achieve desired publicity.

57.  There are therefore a number of points which the DPP might want to consider in the light of this case.  The application itself is dismissed.