Maxwell [2010] UKSC 48; [2011] 2 Cr. App. R. 31, [2011] 1 WLR 1837

R v Maxwell [2010] UKSC 48 concerned an appeal against the Court of Appeal’s decision to order a retrial after quashing the appellant’s convictions for murder and two robberies on account of gross prosecutorial misconduct by police officers.

The appellant and his brother Daniel Mansell had been convicted at Leeds Crown Court on 27 February 1998 of the murder of Joe Smales aged 85 and of two robberies against Joe and his brother Bert aged 67. Both attacks occurred at their Yorkshire home. The first robbery on 11 June 1996 went unreported. The second on 13 October 1996 involved severe violence to both victims. Joe Smales sustained a broken jaw, internal bleeding and a fractured cervical spine from which he developed pneumonia and deep vein thrombosis, dying on 7 November 1996. The appellant was serving an eight year sentence at the time, released eight days before the first robbery. He was sentenced to life imprisonment with a minimum term of 18 years for murder and concurrent terms of 12 years for the robberies.

The prosecution case depended almost entirely on the evidence of Karl Chapman, a professional criminal and supergrass who had been in prison with the appellant in late 1995 and early 1996 and who had himself pleaded guilty to over 250 offences. Chapman gave evidence for five days. The defence challenged his credibility, alleging he was expecting benefits from the police. Chapman vigorously denied this, stating he had nothing to gain by giving false evidence. The jury convicted by majority verdicts.

After conviction, press reports suggested that £100,000 had been set aside for Chapman. A renewed leave application reached the full Court of Appeal which on 5 November 1999 heard ex parte evidence from senior police officers who stated that a reward of £10,000 had been set aside for Chapman but that he was not aware of it. The Court of Appeal accepted this evidence and dismissed the renewed applications for leave on 13 December 1999.

In 2008 the Criminal Cases Review Commission referred the case back to the Court of Appeal following a detailed investigation by North Yorkshire Police. That investigation revealed a catalogue of police misconduct. Chapman had received numerous benefits which were concealed from the CPS, counsel and the court, including visits to brothels, sexual relations with a woman police constable, permission to consume alcohol, cannabis and heroin, socialising at police officers’ homes, unsupervised periods of freedom, luxury items and substantial cash payments. He was not proceeded against for violent attacks including on a fellow prisoner and an assault on the woman police constable. His custody records were falsified and on one occasion forged. The police colluded in his perjury at trial. Detective Sergeant Grey and Chief Superintendent Holt gave false evidence to the Court of Appeal in 1999, stating that the £10,000 reward had been agreed without Chapman’s knowledge long after he gave evidence, when in fact the intention to reward him had been communicated to him before trial and influenced his cooperation. Senior officers lied in letters to the Court of Appeal. The investigation concluded that multiple senior officers had conspired to pervert the course of justice.

On 1 December 2009 the Court of Appeal (Hooper LJ, Cooke and Swift JJ) quashed the convictions, holding that the misconduct so tainted the process that the trial judge might well have stayed the prosecution as an abuse of process or excluded Chapman’s evidence under section 78 of the Police and Criminal Evidence Act 1984. Mansell was released. However, the court ordered a retrial for the appellant.

Between October 1998 and September 2004, the appellant had made a series of admissions of guilt to various persons including his solicitor, prison staff, a police researcher, and officers conducting the CCRC investigation. On 12 October 1998 he told his solicitor that he and his brother had committed the murder, though he was inside the house whilst his brother carried out the fatal attack in the garden. He made a detailed written statement in February 1999. In February 2000 he wrote to a Detective Chief Superintendent stating he now fully admitted his guilt. Prison reports recorded his admissions. In September 2004 he admitted the robberies and said he wanted a retrial at which he would plead guilty to robbery and manslaughter. The Court of Appeal described these admissions as providing clear and compelling evidence of guilt, an assessment unchallenged on appeal.

The Court of Appeal reached the conclusion not without difficulty that the public interest in convicting those guilty of murder outweighed the public interest in maintaining the integrity of the criminal justice system, particularly as there was new and compelling evidence untainted by the misconduct. The court acknowledged the strength of factors against a retrial, including the nature and scale of the prosecutorial misconduct, the fact it infected both trial and first appeal, the fact the prosecution had been based almost entirely on Chapman’s evidence, the strong possibility the trial would have been stayed had the misconduct been known, and crucially the fact that the admissions would not have been made but for the conviction obtained by misconduct. The appellant had by then served 12.5 years, longer than he would receive if convicted of manslaughter. Nevertheless, the court balanced these against the shocking nature of the murder and the existence of new compelling evidence.

The Supreme Court by a majority of three to two dismissed the appeal. The certified point of law was whether the Court of Appeal may order a retrial having quashed a conviction on grounds of serious executive or prosecutorial misconduct and in what circumstances.

Lord Dyson (with whom Lord Rodger and Lord Mance agreed) held that section 7(1) of the Criminal Appeal Act 1968 conferred a broad discretion on the Court of Appeal to order a retrial if the interests of justice so require, without specifying relevant factors. Parliament had entrusted this task to the specialist criminal court. The interests of justice called for an exercise of judgment weighing multiple relevant factors. A decision should only be upset on appeal if plainly wrong, if no reasonable court could have made it, or if immaterial factors were taken into account or material factors ignored. The Court of Appeal’s expertise and the difficulty of challenging such decisions explained why there had been no previous appeals to the House of Lords or Supreme Court under section 7.

Lord Dyson held that the question whether the interests of justice require a retrial was broader than the question whether it is an abuse of process to allow a prosecution to proceed. He rejected the submission that in each case the question is the same. While the gravity of the alleged offence was a relevant factor in stay applications, it was plainly an important factor when deciding whether to order a retrial, as society had a greater interest in trying those accused of grave offences, especially where there was compelling evidence of guilt. The interests of justice test was not limited to fairness to the individual accused but encompassed wider public interests.

Lord Dyson emphasised that the criminal courts do not exercise a disciplinary jurisdiction over the police. If prosecuting authorities had been guilty of misconduct but the prospect of a fair trial had not been prejudiced, the court ought not to stay proceedings merely to discipline or punish official wrongdoing. He noted the view of the majority of the Royal Commission on Criminal Justice chaired by Viscount Runciman that even in cases of serious police malpractice, convictions should not be quashed on grounds of pre-trial misconduct unless the conviction was or might be unsafe. The majority had concluded it would be naive to suppose that quashing convictions was an appropriate way of punishing police malpractice, and that it could not be morally right that a person convicted on abundant other evidence should walk free because of a criminal offence by someone else. Such offences should be separately prosecuted.

On the facts, Lord Dyson held that if the retrial evidence were incontestably free of taint, for example fresh DNA evidence or an independent credible witness, the Court of Appeal would be entitled to disregard the earlier misconduct since it would have no effect at the retrial. The only justification for refusing a retrial in such circumstances would be to discipline the police, which was not the function of the criminal courts. In the present case, the prosecution said they would rely only on the appellant’s admissions and not on Chapman’s evidence. The admissions, if accepted, amounted to clear prima facie evidence of guilt. The admissions were untainted by the misconduct except in the sense that they would probably not have been made but for it. Lord Dyson held that the “but for” factor was a relevant consideration but not determinative. The appellant had made the admissions entirely voluntarily for his own purposes. The police could not have contemplated that he would make them. In that sense the evidence was untainted.

Lord Dyson held that the Court of Appeal had carried out the balancing exercise precisely and with great care. It had identified all relevant factors, including the six categories of reasons against a retrial set out at paragraph 66 of its judgment. The court had expressly accepted the strength of these reasons. It had then weighed them against the shocking nature of the offence and the new compelling evidence. The appellant accepted the court was right to carry out a balancing exercise, that all the relevant factors were identified, and that the public interest in convicting those guilty of grave crimes was an important factor. His sole criticisms were that the case against a retrial was so strong no reasonable court could have ordered one, and that the court did not properly take into account that the admissions were the product of the misconduct. Lord Dyson rejected the latter submission, noting the court had identified the “but for” point as a separate factor at paragraph 66(v). The complaint amounted to saying the court failed to place sufficient weight on a relevant fact it had taken into account. This court was always slow to allow such an appeal. It must be a rare case where the Supreme Court would interfere with the Court of Appeal’s exercise of its power to order a retrial.

Lord Dyson accepted that the Court of Appeal erred in paragraph 62 by suggesting the present case involved no deliberate violation of a fundamental condition on which the administration of justice rested, when the police conduct was a gross violation of the appellant’s right to a fair trial and worse than the violation of legal professional privilege in R v Grant. However, the real complaint was about weight. The Court of Appeal expressly acknowledged the difficulty of the balancing exercise. Different courts could legitimately differ as to the weight accorded to relevant factors. The decision was not plainly wrong. There was a strong case for concluding the interests of justice would be served by requiring the appellant to face trial and requiring the offending officers to face disciplinary and criminal proceedings. No explanation had been provided why there had been no such proceedings. If the officers had been disciplined or prosecuted, the argument that a retrial would be offensive to the court’s sense of justice would have lost much of its force. However, whether a retrial was required should not depend on the fortuity of whether the officers were prosecuted. The appellant’s appeal should be dismissed.

Lord Rodger agreed with Lord Dyson. He noted that the Crown Prosecution Service and prosecuting counsel had been duped just as much as the defence. It was surprising no officers had been prosecuted or disciplined. However, the investigating officer may have given waivers in exchange for statements, a familiar feature of public inquiries. The appeal may have been made possible only because such waivers were given. Assuming the prosecuting and disciplinary authorities acted properly, the lack of action against officers was not a relevant factor for the Court of Appeal. Lord Rodger emphasised that section 7(1) left the matter to the Court of Appeal on a broad basis. The court could be expected to have knowledge and experience and to be familiar with the facts from the proceedings which led it to allow the appeal. The Supreme Court could only intervene if no reasonable Court of Appeal could have reached the decision, which was not the position here. Although the court did not explicitly weigh the competing considerations after setting them out, it must be assumed the experienced court duly weighed them. Lord Rodger would not take the “but for” reasoning as far as Lord Brown. The statements were made voluntarily by the appellant for his own purposes, one for the purposes of the CCRC investigation which led to his appeal being allowed. Their use would involve no abuse of the trial court. The fact they would not have been made but for the antecedent misconduct was not enough to taint them, any more than it would taint DNA evidence available through subsequent advances or evidence from a witness coming forward after reading reports of the investigation. The “but for” factor was taken into account by the Court of Appeal in paragraph 66. Having taken it into account, the court still concluded the interests of justice required a retrial. That was a decision the Court of Appeal was entitled to reach.

Lord Mance agreed with Lord Dyson and Lord Rodger. He emphasised that it was common ground that the Court of Appeal identified all relevant factors and that the exercise involved a balancing exercise. The criticisms focused on the seriousness of the police misconduct, the “but for” point, and the submission that the Crown would be seen as condoning or taking advantage of the misconduct. This amounted to saying the court’s exercise of discretion was one no reasonable court could reach. Lord Mance held it was not the court’s role to refuse a retrial to discipline the Crown, and the fact the misconduct had not received the sanction it deserved was not a reason to depart from this stance. The court was entitled to take into account effects of ordering a retrial including any perception the Crown condoned misconduct and any general discouragement of future misconduct. The admissions were made freely and voluntarily. Lord Mance did not see any basis for regarding the Crown, or for thinking right minded people would regard the Crown, as condoning misconduct or adopting the approach that the end justifies any means by relying on them. He found unconvincing any suggestion that refusing a retrial would have any incentive effect on police behaviour. The court was entitled to bear in mind the effect on public confidence if persons who had admitted very serious crimes and who perjured themselves at trial were not retried to establish the truth. Lord Mance distinguished the present case from the wrongful extradition and entrapment cases. In those cases the government’s wrongful act was the direct cause of the defendant standing in the dock or led directly to the commission of the crime. Here the alleged crime was independent of any police act and the admissions were made voluntarily for the appellant’s own purposes. The voluntary element was important. It broke the directness of the chain of causation and relegated the police misconduct to background. The appellant’s letter to Detective Inspector Steele in February 2000 making an admission described how it came about in terms apparently unrelated to his conviction. Lord Mance could conceive of other cases where a “but for” link might require refusal of a retrial, for example if the police improperly recorded privileged conversations and as a result discovered independent evidence. He would not treat the Court of Appeal as having reached a decision not reasonably open to it.

Lord Brown dissented. He held that the appellant’s post-conviction admissions provided compelling evidence of guilt which, together with supporting evidence, meant a jury would be highly likely to convict him of both robberies and of murder (though possibly manslaughter). The first admission on 12 October 1998 was to his solicitor, retained to advise on appeal. The solicitor’s note recorded the appellant confessed he and his brother did the murder, though he had not anticipated any injury and was inside the house whilst his brother carried it out in the garden. The solicitor told him he might have a possible appeal based on R v English and R v Powell. In February 1999 the appellant wrote a lengthy statement detailing his involvement and asked it be placed on his prison file. A prison report in February 1999

The issue in this appeal is whether the Court of Appeal was right to order a retrial in respect of the appellant. The circumstances in which a court may order a retrial are set out in section 7(1) of the Criminal Appeal Act 1968, as amended by the Criminal Justice Act 1988, which provides: “Where the Court of Appeal allows an appeal against conviction and it appears to the Court that the interests of justice so require, they may order the appellant to be retried”. The appellant and his brother were convicted of murder and two robberies at Leeds Crown Court on 27 February 1998. The appellant was sentenced to life imprisonment for murder to be served with concurrent twelve-year terms for the robberies. The main prosecution witness was Karl Chapman, a professional criminal and a supergrass. On 11 June and 13 October 1996 robberies took place at the home of two elderly brothers. On both occasions the robbers used violence and took money. On the second occasion, the elder brother sustained injuries to the head which later resulted in his death. In the ensuing police investigation Chapman provided the police with information and witness statements implicating the appellant and his brother. They were charged with robbery and murder. Chapman’s evidence was central to the prosecution’s case at trial. He vigorously denied that he was expecting or receiving any benefits from the police for his evidence. Following the convictions there were allegations in the local press that the police were planning to pay Chapman a large sum of money upon his release from prison. Subsequently, the Criminal Cases Review Commission (“CCRC”) decided to investigate. North Yorkshire Police carried out detailed investigations into the activities of the police which formed the basis of the CCRC report in November 2008. The findings of the report showed that the police had conspired to pervert the course of justice in concealing and lying about a variety of rewards and benefits received by Chapman. It was revealed, for example, that the police had paid him sums of money, taken him to brothels, allowed him to consume drugs in their company and not investigated allegations that he had committed violent attacks. On 25 November 2008 the CCRC made a reference to the Criminal Division of the Court of Appeal on the ground that the convictions had been procured by gross prosecutorial misconduct on the part of the police. The appellant and his brother remained in prison during this period. Between October 1998 and September 2004, whilst in prison, the appellant had made a series of admissions of guilt freely and voluntarily to various persons. On 1 December 2009, the Court of Appeal quashed the convictions of the appellant and his brother. The findings of the CCRC relating to the gross police misconduct were not challenged. The court held that had the findings been revealed during the trial, the trial judge might have stayed the prosecution as an abuse of process or applied section 78 of the Police and Criminal Evidence Act 1984 to exclude Chapman’s evidence altogether, in which case the appellant and his brother would have been acquitted. However, the court also held that the admissions made by the appellant between 1998 and
2004 constituted clear and compelling evidence of his guilt. In light of this the Court of Appeal found that it was in the interests of justice to order a retrial of the appellant.

Latif & Shahzad [1996] 1 WLR 104; [1996] 2 Cr App R 92, [1996] UKL 16, [1996] 1 All ER 353
Horseferry Road Magistrates’ Court ex parte Bennett [1994] 1 AC 42
Mullen [2000] QB 520
Regan [2002] 1 SCR 297
R v Grant [2006] QB 60; [2005] 2 Cr App R 28
Connelly v Director of Public Prosecutions [1964] AC 1254
Loosely [2001] UKHL 53; [2002] 1 Cr App R 29, [2001] 4 All ER 897, [2001] 1 WLR 2060
Panday v Senior Superintendent Wellington Virgil [2008] UKPC 46, [2008] UKPC 24, [2008] 1 AC 1386
Maxwell & Anor [2009] EWCA Crim 2552
Connelly v Director of Public Prosecutions [1964] AC 1254
Humphrys [1977] AC 1
Early [2003] 1 Crim App. R. 288

Derby Magistrates’ Court, Ex p B [1996] AC 487

Asif v Ditta & Riaz [2021] EWCA Crim 1091
Hamilton & Others v Post Office Ltd [2021] EWCA Crim 577
Mansfield v DPP [2021] EWHC 2938 (Admin)
Akle & Bond [2021] EWCA Crim 1879
Ahmed [2021] EWCA Crim 927
Miller-Cross [2022] EWCA Crim 346
FGD [2026] EWCA Crim 918
Joof and Others [2012] EWCA Crim 1475
Secretary of State for the Home Department v CC and CF [2012] EWHC 2837 (Admin)
Noshad Hussain [2013] EWCA Crim 707
S [2013] EWCA Crim 2579
Crawley and Others, ‘Operation Cotton’ [2014] EWCA Crim 1028; [2014] 2 Cr. App. R. 16
Downey, Central Criminal Court 21 February 2014
DS and TS [2015] EWCA Crim 662; [2015] 2 Cr. App. R. 27
Tague (aka Mark Lilley) v Governor of HM Prison, Full Sutton & Anor [2015] EWHC 3576 (Admin), [2016] 1 Cr App R 15
Richards and Others [2015] EWCA Crim 1941
Walters, Newcastle Crown Court 6 April 2017
Norman [2016] EWCA Crim 1564, [2017] 1 Cr App R 8, [2017] 4 WLR 16
Warren v HM Attorney General of the Bailiwick of Jersey [2011] UKPC 10; [2012] 1 AC 22; [2011] 2 All ER 513; [2012] 3 WLR 933; [2011] 2 Cr App R 502; [2011] Crim LR 63
Knightland Foundation and Jacob Friedman [2018] EWCA Crim 1860
Ibori and Others [2018] EWCA Crim 2291
E [2018] EWCA Crim 2426
Fitt [2018] EWCA Crim 2593
Zuman & Ors [2016] EWCA Crim 1925
LG [2018] EWCA Crim 736
Clinton v General Medical Council [2017] EWHC 3304 (Admin)
AJ [2019] EWCA Crim 647
Josephus Oremi Cole [2019] EWCA Crim 1033
W [2016] EWCA Crim 1938
Skeleton arguments and opening note in Government of India v Modi
Warren v Attorney General for Jersey [2012] 1 AC 22
Martin McCauley [2014] NICA 60
Podolak v Polish Judicial Authority [2020] EWHC 2830 (Admin)
Hamilton & Ors v Post Office Ltd [2021] EWCA Crim 21
Wawrzyczek v District Court In Bielsko-Biala, Poland [2021] EWHC 64 (Admin)
R v R [2016] 1 WLR 1872, [2015] EWCA Crim 1941, [2016] 1 Cr AppR 20
Giese v USA [2018] EWHC 1480 (Admin), [2018] 4 WLR 103 
Davidson & Others, Unreported 4 May 2022
Johnson [2022] EWCA Crim 832
Taktouk [2022] EWCA Crim 1254
ANP [2022] EWCA Crim 1111
Timothy Raggatt KC v Bar Standards Board [2023] EWHC 1198 (Admin)
BKR [2023] EWCA Crim 903
Watson [2023] EWCA Crim 1016
Davis [2023] EWCA Crim 1018 
Morjaria v Westminster Magistrates’ Court [2023] EWHC 1338 (Admin)
Balachandra v The General Dental Council [2024] EWHC 18 (Admin) 
Salmon [2024] EWCA Crim 44
DPP v Barton [2024] EWHC 1350 (Admin)
Director of Public Prosecutions v Chris Durham also called Bouye (deceased) and 2 others (Trinidad and Tobago) [2024] UKPC 21
BKJ [2024] EWCA Crim 1354
Professional Standards Authority for Health and Social Care v General Pharmaceutical Council & Anor [2024] EWHC 3005 (Admin)
Independent Review of Disclosure and Fraud Offences
Pembrokeshire Holdings Limited v Food Standards Agency [2026] EWHC 323 (Admin)
Hamilton v Post Office [2021] EWCA Crim 21
Jones (Mikail) [2026] EWCA Crim 749
Okoroji (Wisdom) v Crown Prosecution Service [2025] EWCA Crim 1869
Singh (Sadnam) & Anor [2026] EWCA Crim 870