CRIME — Practice — Re-trial — Whether publicity rendering re-trial unfair — Test to be applied

R v Stone

CA: Kennedy LJ, Maurice Kay and Hallett JJ: 14 February 2000


In deciding whether it was right to order the retrial of a defendant whose appeal against conviction had been allowed and whose case had received extensive publicity, the question that the Court of Appeal had to ask itself was whether it could be satisfied, on a balance of probabilities, that if the jury on the retrial returned a verdict of guilty the effect of the publicity between the first trial and the hearing of the appeal would be such as to render that verdict unsafe.

The Court of Appeal (Criminal Division) so held in allowing an appeal by Michael Stone against his conviction on 23 October 1998 in the Crown Court at Maidstone before Ian Kennedy J and a jury of two offences of murder and one of attempted murder. He was ordered to be retried.

KENNEDY LJ, giving the judgment of the court, said that the appellant's conviction was unsafe as a consequence of a witness retracting his evidence. He told journalists that he had given false evidence at the trial. Defence counsel submitted that because of the publicity generated by the case the appellant could not now receive a fair trail and therefore a retrial should not be ordered. In their Lordships' judgment publicity could impact on a trial at three stages: before a trial, during a trial or after a trial, so as to affect a decision by the Court of Appeal as to whether to order a retrial. The concern in this case was with the post-trial publicity and, so far as it had been possible to ascertain, there were no decisions, either in England and Wales, or in relation to art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which focused on adverse publicity after trial. Their Lordships considered R v Kray (1969) 53 Cr App R 412, R v Coughlan (Martin) (1976) 63 Cr App R 33, R v McCann (1990) 92 Cr App R 239, R v Bow Street Metropolitan Stipendiary Magistrate, ex p Director of Public Prosecutions (1992) 95 Cr App R 9, Ex p The Telegraph plc [1993] 1 WLR 980, R v Taylor (Michelle) (1993) 98 Cr App R 361, Attorney General v Independent Television News Ltd [1995] 2 All ER 370, R v West [1996] 2 Cr App R 374 and Attorney General v MGN Ltd [1997] 1 All ER 456. In most of those cases it was held that the defendants were not prejudiced by extensive publicity, although plainly R v Taylor was authority for the proposition that the Court of Appeal could, in an appropriate case, regard past press coverage as a sufficient reason not to order a retrial, but otherwise that case had to be regarded as a decision on its own facts.

Their Lordships thought valuable and accepted the approach adopted by Phillips J in 1995 when he had to consider the adverse publicity accorded to Kevin and Ian Maxwell before they appeared for trial and said: “No stay should be imposed unless the defendant shows on the balance of probabilities that owing to the extent and the nature of the pre-trial publicity he will suffer serious prejudice to the extent that no fair trial can be held.” Even though the early publicity was sensational and extended far beyond what a jury in 2001 might normally be told, since the retrial would not start until nearly three years after the publicity generated by the first trial and could be located away from Kent where the crime was committed, their Lordships were satisfied that if the jury did convict their verdict would not be found subsequently by the Court of Appeal to be unsafe by reason of the publicity to which reference had been made.


Appearances: William Clegg QC and Jonathan Ingram (Derek J Hayward & Co, Chatham) for the appellant; Nigel Sweeney QC and Mark Ellison (Crown Prosecution Service, Canterbury) for the Crown; Ian Croxford QC (Kingsley Napley) for the journalist.


Reported by: Clare Barsby, barrister



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