When Should a Retrial be Permitted After a Conviction is Quashed on Appeal?

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.