The Law Commission

PART III

THE IMPLICATIONS OF HUMAN RIGHTS LAW

3.1      The UK is bound under international law to ensure that its domestic practice complies with the obligations which it has undertaken under both the United Nations' International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR). Both treaties contain provisions which have a direct bearing on issues considered in this report. The UK's international law obligations alone afford a sufficient basis for ensuring that any proposals for reform are compatible with the rights guaranteed under these important human rights treaties.^[1] Certain rights conferred by the ECHR, moreover, are now directly enforceable in our national courts by virtue of the Human Rights Act 1998.

The concept of res judicata

3.2      All European states recognise the principle that once ordinary appellate remedies have been exhausted, or the relevant time limit for appealing has expired, a conviction or acquittal is to be regarded as irrevocable, and acquires the quality of res judicata.^[2] The term "res judicata" is used in a number of different ways in different jurisdictions. In this report we use it in the way in which it is used in the Explanatory Report to Protocol 7 to the ECHR, and which informs the Convention case law. An acquittal or conviction is res judicata if it is final, in the sense that all ordinary procedures have been exhausted. In England and Wales, an acquittal in a trial on indictment is res judicata as soon as the jury delivers its verdict. Where provision is made for a prosecution right of appeal, an acquittal would only become res judicata when either the time for appealing had elapsed, or an appeal had been determined. Similarly, a conviction in England and Wales is res judicata after the time limit for appealing has elapsed, or the Criminal Division of the Court of Appeal (or, if a point of law is certified and leave is granted, the House of Lords) has determined the appeal.
3.3      A determination can, however, become res judicata even though all extraordinary^[3] remedies or procedures have not been exhausted. Thus, in England and Wales, it is possible to challenge a conviction on indictment after it has become res judicata by an appeal out of time to the Court of Appeal, or by seeking a reference to the court from the Criminal Cases Review Commission. The distinction between ordinary procedures, which are available before the determination becomes res judicata, and extraordinary procedures available after that point, is important to an understanding of the relevant provisions of the ICCPR and the ECHR.

Article 14(7) of the ICCPR

3.4      The ICCPR was drafted by the United Nations Human Rights Commission in parallel with the drafting of the ECHR by the Council of Europe in the immediate aftermath of the Second World War. The rights contained in it are broadly similar to those contained in the ECHR.
3.5      Article 14(7) of the ICCPR provides:

No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

3.6      Article 14 applies to the reopening of both convictions and acquittals. Read literally, therefore, it prohibits even the power of an appellate court to quash a criminal conviction and order a retrial if new evidence or a procedural defect is discovered after the ordinary appeals process has been concluded. In its General Comment on Article 14(7),^[4] however, the United Nations Human Rights Committee, the treaty body charged with implementing the ICCPR, expressed the view that the reopening of criminal proceedings "justified by exceptional circumstances" did not infringe the principle of double jeopardy. The Committee drew a distinction between the "resumption" of criminal proceedings, which it considered to be permitted by Article 14(7), and "retrial" which was expressly forbidden. This distinction has not yet been expressly recognised in the law of England and Wales. It has, however, taken firm root in European human rights law, and is now reflected in Article 4(2) of Protocol 7 to the ECHR.

Article 4 of Protocol 7 to the ECHR

3.7      In addition to Articles 6 (the right to a fair trial) and 7 (the prohibition on retrospective application of the criminal law), the ECHR contains a provision of particular relevance to the issue of double jeopardy. Article 4 of Protocol 7 provides:

(1) No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

(2) The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

(3) No derogation from this Article shall be made under Article 15 of the Convention.

3.8      Article 4(1)^[5] thus embodies the principle of double jeopardy as it applies to the unilateral action of a prosecuting authority or private prosecutor. Article 4(2), however, permits a case to be "reopened", in accordance with the provisions of domestic law, if there is "evidence of new or newly discovered facts", or if there has been "a fundamental defect in the previous proceedings".
3.9      The UK has not yet ratified Protocol 7, but the Government has expressed its intention to do so.^[6]

The scope of Article 4(1)

3.10      Article 4(1) prohibits the bringing of proceedings only where the defendant has been "finally acquitted or convicted" of the offence now charged, "in accordance with the law and penal procedure" of the state in question. The Explanatory Report to Protocol 7 states that a decision is to be regarded as final for the purposes of Article 4(1)

if, according to the traditional expression, it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time limit to expire without availing themselves of them.

Thus, for example, a defendant has not been "finally acquitted" if the acquittal is set aside, and a rehearing ordered, in the course of an ordinary appeal.

3.11      There are conflicting decisions as to whether Article 4(1) applies only where the second charge is in fact and law the same, or also to a second charge for a different offence based on the same facts. The latter was the view taken in the first case in which the Strasbourg Court considered Article 4, Gradinger v Austria.^[7] The applicant was convicted of a criminal offence of causing death by negligent driving, but acquitted of an aggravated form of the offence. This offence required proof that the amount of alcohol in his blood had exceeded the prescribed limit, and the court accepted medical evidence which placed his blood-alcohol level beneath that limit. The local administrative authorities subsequently acquired a medical report which contradicted the evidence adduced by the applicant at his trial. On the basis of the new report the authorities imposed on the applicant an administrative penalty (a fine) for driving with excess alcohol. The Strasbourg Court concluded that, following the acquittal in the first proceedings, Article 4(1) was applicable.^[8] In determining whether Article 4(1) had been violated, the Court adopted a substantive rather than a formalistic approach to the double jeopardy principle. Although the elements of the two offences were different, and they pursued different aims, the blood-alcohol level required for the two offences was the same. Since both charges were "based on the same conduct" the Court concluded that there had been a violation of Article 4.
3.12      It is of interest that, although the case might be thought to have involved "new or newly discovered facts", there was no discussion in the judgment of the effect of Article 4(2), and there appears to have been no argument based on it. Presumably, this is because there was no relevant "law" or "penal procedure" providing for the "reopening" of the earlier proceedings in the particular circumstances.
3.13      By contrast, a narrow view of Article 4(1) was taken in the subsequent case of Oliveira v Switzerland.^[9] The Court held that successive prosecutions will not violate Article 4 if they relate to separate offences arising out of the same act. The applicant was involved in a road traffic accident in which another motorist was seriously injured. Owing to an administrative error, her case was dealt with by the police magistrate, whose jurisdiction was limited to minor offences. The magistrate convicted her of a minor offence of failing to control her vehicle, and imposed a fine of 200 francs. He had no jurisdiction to consider the more serious offence of negligently inflicting physical injury, and he failed to refer the case to the district attorney as he was required to do under Swiss law. The district attorney's office subsequently issued a penal order fining the applicant 2,000 francs for the more serious offence. The conviction was upheld on appeal.
3.14      The applicant complained that she had been prosecuted twice in respect of the same offence. The Court rejected this complaint, holding that this was "a typical example of a single act constituting various offences". As the Court explained:

The characteristic feature of this notion is that a single criminal act is split up into two separate offences, in this case the failure to control the vehicle and the negligent causing of physical injury. In such cases, the greater penalty will usually absorb the lesser one. There is nothing in that situation which infringes Article 4 of Protocol No 7 since that provision prohibits people being tried twice for the same offence, whereas in cases concerning a single act constituting various offences one criminal act constitutes two separate offences.^[10]

3.15      The Court observed that it would have been more consistent with the principles governing the proper administration of justice for sentence in respect of both offences to have been passed by the same court in a single set of proceedings. Nevertheless, the fact that this had not occurred was irrelevant to the issues arising under Article 4 since

that provision does not preclude separate offences, even if they are all part of a single criminal act, being tried by different courts, especially where, as in the present case, the penalties were not cumulative, the lesser being absorbed by the greater.^[11]

3.16      In previous cases the Commission had consistently distinguished between successive prosecutions for the same offence, and prosecutions for multiple offences arising out of the same course of conduct.^[12] But Oliveira goes further than these cases, in that the second fine related to precisely the same act as the first. The only difference lay in the nature of the charges. The decision suggests that Article 4(1) is triggered only where the offence with which the defendant is charged is, in law, the same offence as that of which he or she was previously acquitted or convicted. This interpretation would mean that Article 4(1) went no further than the autrefois rule in English law.
3.17      A point of distinction between the two cases might have been that in Gradinger the applicant had been acquitted of the aggravated offence, whereas in Oliveira the applicant had been convicted of the minor offence. The effect of the second set of proceedings in Gradinger was to call the previous acquittal into question; in Oliveira they had no such effect, but only exposed the applicant to a more severe penalty. There is, however, virtually no suggestion in the majority judgment that the distinction between a previous acquittal and a previous conviction was regarded as crucial.^[13] Nor is there any support for it in the wording of Article 4(1) itself.
3.18      In Oliveira the Court itself considered that the analysis quoted above was sufficient to distinguish Gradinger, noting that in that case two different courts had come to inconsistent findings on the applicant's blood-alcohol level. In a powerful dissenting judgment, Judge Repik disagreed:

No difference can be seen between the Gradinger case and the Oliveira case that can justify these two wholly conflicting decisions. In both cases, the conduct that led to the prosecution was identical. In both cases, owing to a mistake by the court that first convicted the accused, one aspect of the actus was not taken into account in the conviction. Lastly, in both cases, the same conduct, aggravated by the aspect that the first court had omitted to take into account, led to a second conviction under a different legal qualification.

We prefer this view, and conclude that there is a real conflict between the two decisions.

The scope of Article 4(2)

3.19      The reopening permitted by Article 4(2) must be distinguished from an appeal by the prosecution. A prosecution appeal is an ordinary procedure which may be invoked before the decision has become res judicata. Reopening is an extraordinary procedure which may be invoked after the decision is res judicata.
3.20      Although it is not specifically stated, we think it clear that Article 4(2) envisages a case being reopened only with the authority of a court. A simple decision by the prosecuting authorities to launch another prosecution is precluded altogether. This view is probably implicit in the reference to "reopening", as distinct from a fresh prosecution. In any event, it would in our view be contrary to the principle of the independence of the court (guaranteed by Article 6 of the Convention) if the executive were permitted, of its own motion, to treat an earlier decision as of no effect.^[14]
3.21      Article 4(1) prohibits the bringing of a second prosecution on the same facts. That prohibition is, prima facie, absolute. The effect of Article 4(2), however, is that a member state's law may permit a case to be "reopened", but only on certain specified grounds. It does not permit a new prosecution. Even reopening is permitted only on certain specified grounds – namely that new evidence has been found, or that there was a fundamental defect in the original proceedings. In any other circumstances, the reopening of the case is prohibited no less than would be the bringing of a second case.

Note 1    We have also considered the Charter of Fundamental Rights of the European Union 2000, Art 50 of which gives protection against double jeopardy. Art 51 confines the scope of the Charter to institutions and bodies of the Union and to Member States when they are implementing Union law. Art 52(1) further allows some scope for limitation of the rights in the Charter. Art 51(3) makes corresponding Charter rights the same as ECHR rights, unless Union law provides more extensive protection. See also the Convention between the Member States of the European Communities on Double Jeopardy (1987) Cm 438.     [Back]

Note 2    See Explanatory Report to Protocol 7 of the ECHR, CE Doc H (83) 3, para 22.     [Back]

Note 3    The distinction between ordinary and extraordinary procedures must depend on the actual practice of the state in question (or, possibly, on what is generally accepted in Council of Europe countries): it is not possible to derive any guidance from Article 4. But the criminal procedures of Council of Europe states are themselves governed by other parts of the Convention, particularly Article 6.    [Back]

Note 4    General Comment 13/21, para 19.    [Back]

Note 5    In this report “Article 4” means Article 4 of Protocol 7.    [Back]

Note 6    Rights Brought Home: The Human Rights Bill (1997) Cm 3782, para 4.15.    [Back]

Note 7    A 328-C (1995).    [Back]

Note 8    Although the second set of proceedings were classified as “administrative” for the purposes of national law, it was held that they fell to be categorised as criminal proceedings for the purpose of the Convention, applying the criteria laid down by the Court in Engel v Netherlands (No.1) A 22 (1976) and Öztürk v FRG A 73 (1984).    [Back]

Note 9    1998-V p 1990.    [Back]

Note 10    Ibid, para 26.    [Back]

Note 11    Ibid, para 27.    [Back]

Note 12    In Palaoro v Austria (unreported, Application No 16718/90), for example, the Commission rejected as manifestly ill-founded a complaint brought under Article 4 by an applicant who had been convicted of two offences of exceeding the prescribed speed limit in the course of a single journey, since the two offences had been committed on separate sections of road. Similarly, in Iskandarani v Sweden (unreported, Application No 23222/94) the Commission rejected a complaint under Article 4 where the applicant had previously been convicted of abducting his daughter, and was subsequently prosecuted for withholding the child from her legal custodian after the abduction had occurred. These were separate offences arising out of the same course of criminal conduct, and Article 4 did not prohibit separate proceedings for such offences.    [Back]

Note 13    Arguably there is a hint of this in the remark that successive prosecutions for different offences are permissible “especially where … the penalties were not cumulative, the lesser being absorbed by the greater”. But the word “especially” seems to imply that this consideration is not crucial. It is perhaps of interest that van Dijk and van Hoof’s Theory and Practice of the European Convention on Human Rights (3rd ed 1998) says that in Gradinger the applicant was initially convicted, not mentioning the relevant acquittal of the aggravated offence. The authors can hardly have considered that the distinction between an acquittal and a conviction was of any moment. Van Dijk was one of the judges inGradinger.    [Back]

Note 14    In Van der Hurk v Netherlands A 288 (1994) the relevant legislation allowed the Minister to decide that a judgment of the Industrial Appeal Tribunal should not be implemented. The power had never been exercised and was due to be repealed. The Court found that the very existence of the power gave rise to a violation of Article 6, despite the fact that it had not been referred to in the proceedings, and “there was nothing to indicate that [it] had any influence on the way the tribunal handled and decided the cases which came before it” (para 47). Similarly, in Findlay v UK 1997-I p 263, para 77, the Court concluded that the role of the “convening officer” who had the duty to confirm a decision of a court martial and to vary its sentence was “contrary to the well-established principle that the power to give a binding decision which may not be altered by a non-judicial authority is inherent in the very notion of ‘tribunal’ and can also be seen as a component of the ‘independence’ required by Article 6(1)”.    [Back]