The Law Commission

PART I
INTRODUCTION

The reference on double jeopardy

1.1      On 2 July 1999 the Home Secretary made a reference to this Commission in the following terms:

To consider the law of England and Wales relating to double jeopardy (after acquittal), taking into account: recommendation 38 of the Macpherson Report on the Stephen Lawrence Inquiry that consideration should be given to permit prosecution after acquittal where fresh and viable evidence is presented; the powers of the prosecution to re-instate criminal proceedings; and also the United Kingdom's international obligations; and to make recommendations.

1.2      The reference arose out of the Macpherson inquiry into the Stephen Lawrence case.^[1] There was great public dissatisfaction about the way in which the police investigation into the murder of Stephen Lawrence had been conducted, and the Home Secretary set up a Committee of Inquiry. In that case, a private prosecution had been brought unsuccessfully against youths who were accused of the murder. The prosecution failed because the judge ruled that the identification evidence of the prosecution's main witness was too unreliable to be admitted. One of the points considered in the inquiry was the impossibility of bringing a fresh prosecution against those who were allegedly responsible for Stephen Lawrence's death but had been acquitted of it, and it was recommended that "consideration should be given to the Court of Appeal being given power to permit prosecution after acquittal where fresh and viable evidence is presented".^[2] The report explains:

Both we and others … have considered, in the context of this case, whether the law which absolutely protects those who have been acquitted from any further prosecution for the same or a closely allied offence should prevail. If, even at this late stage, fresh and viable evidence should emerge against any of the three suspects who were acquitted, they could not be tried again however strong the evidence might be. We simply indicate that perhaps in modern conditions such absolute protection may sometimes lead to injustice. Full and appropriate safeguards would be essential. Fresh trials after acquittal would be exceptional. But we indicate that at least the issue deserves debate and reconsideration perhaps by the Law Commission, or by Parliament.^[3]

1.3      We published a consultation paper^[4] on 12 October 1999, in which we made a number of provisional proposals, including the proposal that it should in certain circumstances be possible to reopen an acquittal where new evidence has emerged. That paper is referred to in this report as "CP 156".
1.4      The Home Affairs Select Committee of the House of Commons then decided to investigate the issues we had raised. We met the Committee informally to discuss our proposals, and the Committee took evidence from a number of witnesses. On 8 June 2000 it published its report.^[5] It recommended, as we had provisionally proposed, that there should be an exception to the double jeopardy rule in cases of fresh evidence, but the details of its conclusions differed from ours in various respects. The Committee's report was debated in Westminster Hall on 26 October 2000.
1.5      We have of course taken account of the Committee's report, and of the points made by MPs in the debate, in formulating our final recommendations. In particular we note the remarks of the Committee on the rapid advances made in recent years in the field of DNA testing:

… blood samples taken at a murder scene in the early 1980s might not have produced sufficient identification evidence at that time. The prime suspect may have been prosecuted on the basis of other evidence. If the prosecution failed to satisfy the jury that the defendant was guilty beyond reasonable doubt, the defendant would have been acquitted and left the court a free man. A decade later, advances in DNA testing could enable the original blood samples to be analysed and show with near certainty that the acquitted person had been at the crime scene.^[6]

1.6      In addition, there have in recent years been a number of well-publicised cases in which persons acquitted of serious offences are reported to have subsequently confessed their guilt. It would not, however, be appropriate for us to comment on whether our recommendations, if implemented, would enable any particular case to be reopened, and we make no such comment. We have tried in this report to consider the issues in the abstract, without reference to any actual case.

The reference on prosecution appeals

1.7      On 24 May 2000, the Home Secretary formally asked us to undertake a review of the law governing prosecution appeals against judge-directed acquittals in criminal proceedings and other adverse rulings by a judge which may lead to the premature ending of the trial. The terms of reference for this review are:

To consider

(1) whether any, and if so what, additional rights of appeal^[7] or other remedies should be available to the prosecution from adverse rulings of a judge in a trial on indictment which the prosecution may wish to overturn and which may result, or may have resulted, whether directly or indirectly, in premature termination of the trial;

(2) to what, if any, procedural restrictions such appeals would be subject;

and to make recommendations.

1.8      Our work on the subject considerably pre-dated this formal reference. In a lecture given in November 1999 the Attorney-General had indicated that the Government would be asking us to do some work in this area. He said:

My concern is simply this: that there is an imbalance in the system. If a judge decides to stay a prosecution on the ground of abuse of process, or to direct the jury to acquit a defendant, or to make a ruling concerning the admissibility of evidence which has the effect of depriving the prosecution of a crucial plank in its case – ought not the prosecution to be able to test that decision on appeal? If it cannot, are we not allowing in fact a system in which judges are unaccountable to the appeal courts as to a crucial aspect of their responsibilities, at the very time that we are providing them with greater powers through the implementation of the Human Rights Act?

I recognise that there are a large number of issues involved in this suggestion. We must not over correct the imbalance, so that the defence are left at a disadvantage. We must not introduce unnecessary delay into the system. If new rights are given to the prosecution, we must take care to ensure that they are not greater than those available to the defence. There is a case for considering some filter in the system, for instance ensuring that no appeal is brought without the consent of the DPP or the Law Officers. Practical and resource issues would need to be addressed. But I strongly suspect that the mere existence of a prosecution right of appeal, even if only sparingly used, could lead to a significant and beneficial change in the culture of practice in the criminal courts.^[8]

In January 2000, we agreed to undertake the project.

1.9      On 8 June 2000, the report was published of an inquiry by His Honour Gerald Butler QC, a retired circuit judge, into a Customs and Excise prosecution which had been stayed by Mr Justice Turner as an abuse of the process of the court.^[9] The case involved the importation of 309 kilograms of cocaine, said to have a "street value" of about £34 million. One of Judge Butler's recommendations was that "Consideration should be given as to whether or not the prosecution should have a right of appeal where a prosecution is terminated consequent upon a finding that there has been an abuse of process".
1.10      On 25 July 2000 we published a consultation paper,^[10] in which we provisionally proposed that the prosecution should in certain cases be given a right of appeal against rulings which bring the proceedings to an end. That paper is referred to in this report as "CP 158".
1.11      The issues of double jeopardy and prosecution appeals, though distinct, are clearly related. They both concern the circumstances in which an acquittal may be revisited at the instigation of the prosecution, with the possibility of a retrial. Some of the arguments apply to both. We have therefore decided to publish our recommendations on both subjects as a single report.

The implications of human rights law

1.12      In the case of double jeopardy, in particular, we have had to consider the implications of the United Nations' International Convention on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR).^[11] Article 4(1) of the Seventh Protocol to the ECHR prohibits the bringing of a second prosecution for the same offence, but Article 4(2) permits the original proceedings to be reopened in certain circumstances. The UK has not yet ratified this Protocol, but the Government has indicated its intention to do so.^[12] By virtue of the Human Rights Act 1998, the rights conferred by Article 4 may well then become Convention rights enforceable in the courts of England and Wales.^[13] For the purposes of this report we have disregarded the fact that the Protocol has not yet been ratified.
1.13      The law of the Convention distinguishes three different ways in which the prosecution may seek to challenge an acquittal. The prosecution may

(1)have rights of appeal;

(2)seek to have the original proceedings reopened even after all avenues of appeal have been exhausted, or the time limit for an appeal has expired; or

(3)seek to bring new proceedings, as distinct from reopening the old.

Of these three courses, the Convention permits the first, and the second in the circumstances described in Article 4(2); but Article 4(1) prohibits the third altogether.^[14] This prohibition is known in other countries as the principle of ne bis in idem.^[15]

1.14      In English domestic law the principle of ne bis in idem takes the form of the "autrefois" rule,^[16] under which a person who has previously been acquitted or convicted^[17] of an offence may not be prosecuted for the same offence again. We attach great importance to that rule, and in Part VI below we make recommendations for putting it on a statutory basis.
1.15      There is one situation in which English law allows an acquittal to be challenged even after all rights of appeal have been exhausted, namely where the acquittal is "tainted" because it was procured by interference with or intimidation of jurors or witnesses. This is an example of the second kind of challenge referred to above, and is one of the cases in which such challenge is permitted under Article 4(2). In Part V below we discuss possible reforms to this procedure.
1.17      The main issue we have had to consider in the context of double jeopardy is whether English law should recognise a second situation in which an acquittal may be challenged after all rights of appeal have been exhausted, namely where further evidence comes to light. This too would be permissible under Article 4(2), and in Part IV below we consider whether it would be desirable.
1.17      Allowing the prosecution to challenge an acquittal by way of appeal, on the other hand (that is, before it becomes final), does not in principle present any difficulty in terms of compliance with the ECHR. Such rights of appeal are common on the Continent. Indeed, English law already permits the prosecution to appeal against a decision of magistrates on a point of law, and also (in certain circumstances) against a ruling made in the Crown Court in advance of the trial. In Part VII below we discuss the possibility of extending these rights of appeal to certain rulings, made before or during a trial on indictment, to which they do not at present apply.

Our main recommendations

1.18      Our main recommendations on double jeopardy are that the Court of Appeal should have power to set aside an acquittal for murder only,^[18] thus permitting a retrial, where there is compelling new evidence of guilt and the court is satisfied that it is in the interests of justice to quash the acquittal; and that that power should apply equally to acquittals which have already taken place before the law is changed.
1.19      On prosecution appeals we recommend that, in certain types of case, the Crown should have the right to appeal against a ruling by the judge which has the effect of terminating the proceedings. This would include not only (as we originally proposed) rulings made in advance of the trial and those made during the prosecution's case, but also a ruling at the close of the prosecution's case that there is no case to answer, provided that it is made under the first limb of Galbraith^[19] (that is, on the basis that the Crown has not adduced any evidence of one or more elements of the offence – a ruling on a point of law) as distinct from the second (namely that the evidence adduced is such that a jury could not properly convict on it – a ruling based on the court's view of the evidence). We recommend that rights of appeal against acquittal be limited to the more serious cases. The criterion we adopt for this purpose is whether (had the defendant been convicted) the Attorney-General would have had power to refer the sentence to the Court of Appeal as being unduly lenient.
1.20      We also recommend certain extensions to the scope of the preparatory hearing regime, under which either side can appeal against certain rulings made in advance of the trial. We do not recommend a right of appeal against rulings (other than those made at preparatory hearings) which do not result in the termination of the trial, nor against misdirections which may result in an acquittal by the jury.
1.21      A full list of our recommendations appears in Part VIII below.

The timing of this report

1.22      Our usual practice when publishing a report is to append a draft Bill which, if enacted, would implement our recommendations. In this case, however, we have made an exception. This is because the drafting of a Bill inevitably delays the completion of the report, and in the case of this report there are special circumstances which would make such delay undesirable. The Home Office has explained to us that it would be very helpful to be able to take account of our recommendations in formulating its response to the conclusions of Lord Justice Auld's review of the criminal courts, which at the time of writing are expected to be published in February 2001. That response, moreover, may well include the drafting of a Bill which would deal with double jeopardy together with wider issues of criminal procedure, in which case the production of a Bill for this report would involve wasteful duplication of effort. The Home Office has expressed the view that these considerations outweigh the advantages of our usual practice. We agree, and have therefore decided to accelerate the publication of the report by omitting to include a draft Bill.
1.23      This course may incidentally have a further benefit. It may enable us to publish this report during the lifetime of the present Parliament, whereas the inclusion of a draft Bill might render this impossible. We are aware that some of the issues we discuss have already provoked lively public debate, which may well be resumed in the course of the next election campaign. We hope that this report will be a useful contribution to that debate.
Ý
Ü   Þ

Note 1    The Stephen Lawrence Inquiry – Report of an Inquiry by Sir William Macpherson of Cluny (1999) Cm 4262.    [Back]

Note 2    Recommendation 38. The inquiry’s terms of reference required it “to identify the lessons to be learned for the investigation and prosecution of racially motivated crimes”, but our understanding is that this recommendation was not intended to be confined to such crimes. In any event, we see no reason for the rules on double jeopardy to be different in the case of racist crime from those applicable to other kinds of crime.    [Back]

Note 3    Para 7.46.    [Back]

Note 4    Double Jeopardy (1999) Consultation Paper No 156.    [Back]

Note 5    Session 1999–2000, 3rd Report: The Double Jeopardy Rule.    [Back]

Note 6    Ibid, para 3.    [Back]

Note 7    In this report, we follow the reference in using the conventional phrase “right of appeal” to include a right which is subject to a leave requirement.    [Back]

Note 8    Tom Sargant Memorial Lecture, 29 November 1999.    [Back]

Note 9    Report of the Inquiry into the Prosecution of the case of Regina v Doran and Others (2000) by His Honour Gerald Butler QC (available from Customs and Excise).    [Back]

Note 10    Prosecution Appeals Against Judges’ Rulings (2000) Consultation Paper No 158.    [Back]

Note 11    See Part III below.    [Back]

Note 12    Written Answer, Hansard (HL) 4 March 1999, vol 597, col 201.    [Back]

Note 13    Human Rights Act 1998, s l. An order under s 1(4) will be required for this purpose.    [Back]

Note 14    At least where the new proceedings are for the same offence as the old, and arguably also where they are for a different offence but are based on the same facts. See paras 3.11 – 3.18 below.    [Back]

Note 15    A person may not be prosecuted twice for the same thing.    [Back]

Note 16    Strictly speaking the term “autrefois” applies only to proceedings on indictment, which may be met by a plea of autrefois acquit or autrefois convict; but a similar rule applies in the magistrates’ court, and it is convenient to use the expression “the autrefois rule” as including both.    [Back]

Note 17    Our double jeopardy reference is confined to double jeopardy followingacquittal, and our primary focus is on acquittals rather than convictions; but many of the issues arise equally in both cases, and it would seem anomalous to make recommendations only in respect of the former. Some of our recommendations on double jeopardy therefore apply to both.    [Back]

Note 18    Including genocide by killing. Our recommendation would also extend to acquittals of reckless killing, if such an offence were created as we recommended in Legislating the Criminal Code: Involuntary Manslaughter (1996) Law Com No 237.    [Back]

Note 19    [1981] 1 WLR 1039.    [Back]