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You are here: BAILII >> Databases >> The Law Commission >> Double Jeopardy and Prosecution Appeals Part VIII [2001] EWLC 267(8) (15 March 2001)
URL: http://www.bailii.org/ew/other/EWLC/2001/267(8).html
Cite as: [2001] EWLC 267(8)

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PART VIII

OUR RECOMMENDATIONS

New evidence and the double jeopardy rule

We recommend that the rule against double jeopardy should be subject to an exception in certain cases where new evidence is discovered after an acquittal, but only where the offence of which the defendant was acquitted was murder, genocide consisting in the killing of any person, or (if and when the recommendations in our report on involuntary manslaughter are implemented) reckless killing.

^[1]

Retrospective effect

We recommend that the new exception should apply equally to acquittals which have already taken place before the exception comes into force.

^[2]

What new evidence will trigger the exception?

We recommend that

(1) the new exception should be available only where the court is satisfied that the new evidence

(a) appears to be reliable; and

(b) when viewed in context, appears at that stage to be compelling;

(2) the context in which the court views the new evidence for this purpose should comprise the issues that arose at trial, whether or not a matter of dispute between the prosecution and the defence;

(3) the court should be permitted to have regard to the evidence adduced at trial solely for the purpose of identifying those issues and assessing the impact of the new evidence in the light of them; and

(4) the new evidence should be regarded as compelling if, in the opinion of the court, it makes it highly probable that the defendant is guilty.^[3]

The interests of justice

We recommend that a retrial should be allowed on grounds of new evidence only where the court is satisfied that, in all the circumstances of the case, it is in the interests of justice; and that, in determining whether it is so satisfied, the court should be required to have regard to

(1) whether a fair trial is likely to be possible;

(2) whether it is likely that the new evidence would have been available at the first trial if the investigation had been conducted with due diligence;

(3) whether the prosecution has acted with reasonable despatch since

(a) the new evidence was discovered (or would, with due diligence, have been discovered), or

(b) the new exception came into force, whichever is the later;

and

(4) the time that has elapsed since the alleged offence, together with any other considerations which appear to the court to be relevant.^[4]

The appropriate court

We recommend that the court empowered to quash an acquittal on grounds of new evidence should be the Criminal Division of the Court of Appeal, and that there should be no right of appeal against that court's decision.

^[5]

Evidence which was inadmissible at the first trial

We recommend that it should not be possible to apply for a retrial on the basis of evidence which was in the possession of the prosecution at the time of the acquittal but could not be adduced because it was inadmissible, even if it would now be admissible because of a change in the law.

^[6]

Successive retrials, and successive applications for retrials

We recommend that

(1) where an acquittal is quashed on grounds of new evidence, and the defendant is acquitted at the retrial, no application to quash that later acquittal on grounds of new evidence should be permitted;

(2) where an unsuccessful application is made to quash an acquittal on grounds of new evidence, no further application to quash that acquittal on grounds of new evidence should be permitted;

(3) where a person is acquitted at a retrial held on some other ground, it should be possible to make one application to quash that acquittal on grounds of new evidence, but the fact that the acquittal occurred at a retrial should be one of the factors to which the court should be required to have regard in determining whether a further retrial would be in the interests of justice.^[7]

Consent to the making of an application

We recommend that it should be necessary to obtain the consent of the Director of Public Prosecutions, in person, before making an application for an acquittal to be quashed on grounds of new evidence.

^[8]

Reporting restrictions

We recommend that

(1) there should be a prohibition on the reporting of the hearing of an application for a retrial on grounds of new evidence until the application is dismissed or any retrial has finished; but

(2) the Court of Appeal should have power to make an order disapplying or varying that prohibition if

(a) the defendant does not object to the making of such an order, or

(b) having heard representations from the defendant, the court is satisfied that it is in the interests of justice to make it.^[9]

The tainted acquittal procedure

The objects of the interference or intimidation

We recommend that the tainted acquittal procedure should be extended so as to apply where the administration of justice offence involves interference with or intimidation of a judge, magistrate or magistrates' clerk.

^[10]

The definition of "administration of justice offence"

We recommend that, for the purposes of the tainted acquittal procedure, the definition of an "administration of justice offence" should be extended to include

(1) offences under the Prevention of Corruption Acts 1889–1916, and the common law offence of bribery (or, if and when the recommendations in our report on corruption are implemented, the offences there proposed); and

(2) conspiracy to commit any administration of justice offence.^[11]

The necessity for a conviction of an administration of justice offence

We recommend that the tainted acquittal procedure should be available not only where a person has been convicted of the administration of justice offence, but also where the court hearing the application

(1) is satisfied, to the criminal standard of proof, that an administration of justice offence has been committed, and

(2) is satisfied that

(a) the person who committed it is dead;

(b) it is not reasonably practicable to apprehend that person;

(c) that person is overseas, and it is not reasonably practicable to bring that person within the jurisdiction within a reasonable time; or

(d) it is not reasonably practicable to identify that person.^[12]

We recommend that, where an acquittal is quashed on the grounds that it is tainted although no-one has been convicted of an administration of justice offence in relation to it, the court's finding that an administration of justice offence has been committed should be inadmissible as evidence of that fact in subsequent criminal proceedings for any offence.

^[13]

The requirement that the acquittal be secured by the interference or intimidation

We recommend that the tainted acquittal procedure should be available only where it appears to the court hearing the application that, but for the interference or intimidation, the trial would have been more likely to result in a conviction than in an acquittal.

^[14]

The interests of justice test

We recommend that an acquittal should be liable to be quashed on the grounds that it is tainted only where the court is satisfied that, in all the circumstances of the case, this is in the interests of justice; and that, in determining whether it is so satisfied, the court should be required to have regard to

(1) whether a fair trial is likely to be possible;

(2) whether the prosecution has acted with reasonable despatch since evidence of the administration of justice offence was discovered (or would, with due diligence, have been discovered); and

(3) the time that has elapsed since the alleged offence,

together with any other considerations which appear to the court to be relevant.^[15]

A limit on the number of times the procedure can be used

We recommend that

(1) where an unsuccessful application has been made to quash an acquittal on the grounds that it is tainted, no further application to quash that acquittal (on any grounds) should be permissible; but

(2) where an unsuccessful application has been made to quash an acquittal on grounds of new evidence, it should be possible to make one further application to quash that acquittal on the grounds that it is tainted.^[16]

The procedure

We recommend that the legislation governing the tainted acquittal procedure be amended so as to provide for

(1) a hearing of the question whether the acquittal should be quashed;

(2) the hearing to be in open court;

(3) the acquitted person to have a right to be present;

(4) both parties to be legally represented, and legal aid to be available for the acquitted person;

(5) witnesses to be heard and cross-examined on the question whether an administration of justice offence has been committed; and

(6) consideration of transcripts of the first trial, together with witnesses if necessary, in determining whether the acquitted person would not have been acquitted but for the interference or intimidation.^[17]

The appropriate court

We recommend that the court empowered to quash acquittals on the grounds that they are tainted should be the Criminal Division of the Court Appeal.

^[18]

Codifying the double jeopardy rule

We recommend the codification of the autrefois rule and its exceptions.

^[19]

Acquittal or conviction in another jurisdiction

We recommend that the autrefois rule should apply wherever the previous acquittal or conviction occurred, but an English court should be permitted to disregard an acquittal or conviction in another jurisdiction where it is satisfied that it is in the interests of justice to do so; and, in determining whether it is so satisfied, the court should be required to have regard to whether it appears that the foreign proceedings

(1) were held for the purpose of shielding the defendant from criminal responsibility for offences within the jurisdiction of the English court,

(2) were not conducted independently or impartially in accordance with the minimum requirements of due process and fairness, or

(3) were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the defendant to justice,

together with any other considerations which appear to the court to be relevant.^[20]

We recommend that an acquittal by a foreign court should not be regarded as an acquittal for the purposes of the autrefois rule if it appears to have been based solely on the fact that the alleged offence, if committed, was committed outside the territorial jurisdiction of that court.

^[21]

We recommend that the tainted acquittal procedure should not apply to acquittals outside England and Wales.

^[22]

Conviction without sentence

We recommend that, for the purposes of the autrefois rule, a conviction should be defined as including the giving of a verdict of guilty by a jury or a finding by a magistrates' court that an information is proved, whether or not sentence is passed.

^[23]

Offences taken into consideration

We recommend that, for the purposes of the autrefois rule, a conviction should be defined as including the taking of an offence into consideration in sentencing a person for another offence, unless the conviction for the latter offence is quashed on appeal.

^[24]

Prosecution appeals against judges' rulings

Preparatory hearings

We recommend that

(1) the preparatory hearing regime, in both fraud and non-fraud cases, should be extended to include rulings on potentially terminating matters such as severance, joinder of counts, or defendants' applications to quash the indictment or to stay the proceedings on the grounds of abuse of process; and

(2) in non-fraud cases, the criterion of seriousness should be added to the list of matters which will enable a preparatory hearing to be held.^[25]

Terminating rulings during the prosecution case

We recommend that the prosecution should have a right of appeal against an acquittal arising from a terminating ruling made during the trial up to the conclusion of the prosecution evidence.

^[26]

Rulings of no case to answer

We recommend that the prosecution should have a right of appeal against an acquittal arising from a ruling of no case to answer made at the conclusion of the prosecution evidence, but only where that ruling is made on a point of law under the first limb of Galbraith.

^[27]

The offences to which the new right of appeal should apply

We recommend that the new right of appeal should be available only where, had the defendant been convicted of the offence (or any of the offences) of which he or she is acquitted, the Attorney-General would have had power to refer the sentence to the Court of Appeal on the grounds that it was unduly lenient.

^[28]

The criteria for the new right of appeal

We recommend that

(1) the Court of Appeal should have power to allow an appeal against an acquittal arising from a terminating ruling only if

(a) the ruling was wrong in law, and

(b) in all the circumstances of the case, it appears to the court that a retrial would be in the interests of justice; and

(2) where the trial was terminated by a decision of the prosecution to offer no or no further evidence as a consequence of the ruling, the court should, in determining whether a retrial would be in the interests of justice, be required to have regard to

(a) whether there was sufficient evidence remaining at trial after the ruling to provide a prima facie case against the defendant;

(b) in the case of a ruling on disclosure, whether the public interest in prosecuting the case was outweighed by the public interest in protecting the material ordered to be disclosed; and

(c) whether the decision to offer no or no further evidence was one which was open to a competent and conscientious prosecutor, together with any other considerations which appear to the court to be relevant.^[29]

Leave and consent requirements

We recommend that the new right of appeal should be exercisable subject to the same leave requirements as the existing right of appeal against conviction, namely with the leave of the Court of Appeal or a certificate from the trial judge that the case is fit for appeal.

^[30]

Time limits for applications for leave

We recommend that, where the prosecution seeks to appeal against an acquittal arising from a terminating ruling made otherwise than at a preparatory hearing, it should be required

(1) to indicate at the hearing itself that it is minded to appeal against the acquittal, and

(2) either

(a) on that occasion, to obtain a certificate from the trial judge that the case is fit for appeal, or

(b) within seven days of the acquittal (or such extended time as the trial judge may on that occasion grant), to serve a full notice of application for leave to appeal at the trial court for forwarding to the Court of Appeal.^[31]

Detention pending appeal

We recommend that, pending the final outcome of a prosecution appeal or the making of any application for leave or the lodging of a petition for leave to appeal,

(1) the court should have the power to detain the defendant; but

(2) the defendant should have the right to bail on the same basis as other unconvicted defendants.^[32]

We recommend that

(1) where the defendant is remanded in custody pending a prosecution appeal against an acquittal arising from a terminating ruling, there should be a custody time limit of two months from the conclusion of the trial until the conclusion of the appeal before the Court of Appeal; but

(2) the Court of Appeal should have power to extend that time limit, at any time before it expires, if satisfied that

(a) the prosecution has exercised due diligence in promoting the hearing of the appeal, and

(b) there is a good and sufficient reason to extend the limit in the interests of justice.^[33]

Further time limits

We recommend that

(1) there should be a statutory time limit within which prosecution appeals against acquittals arising from terminating rulings must be concluded by the Court of Appeal, the length of that time limit to be determined after consultation with the relevant parties, including the Registrar of the Criminal Division of the Court of Appeal; but

(2) the Court of Appeal should have power to extend that time limit, at any time before it expires, if satisfied that

(a) the prosecution has exercised due diligence in promoting the hearing of the appeal, and

(b) there is a good and sufficient reason to extend the limit in the interests of justice.^[34]

We recommend that, where the Court of Appeal orders a retrial on an appeal by the prosecution against an acquittal arising from a terminating ruling, there should be a time limit of two months after which the defendant may not be arraigned on the new indictment without the leave of the Court of Appeal.

^[35]

Reporting restrictions

We recommend that

(1) there should be a prohibition on the reporting of an appeal against an acquittal arising from a terminating ruling until the appeal is finally dismissed or any retrial has finished; but

(2) the Court of Appeal should have power to make an order disapplying or varying that prohibition if

(a) the defendant does not object to the making of such an order, or

(b) having heard representations from the defendant, the court is satisfied that it is in the interests of justice to make it.^[36]

(Signed) ROBERT CARNWATH, Chairman
HUGH BEALE
CHARLES HARPUM
MARTIN PARTINGTON
ALAN WILKIE

MICHAEL SAYERS, Secretary

24 January 2001

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Note 1    Para 4.42.    [Back]

Note 2    Para 4.56.    [Back]

Note 3    Para 4.69.    [Back]

Note 4    Para 4.90.    [Back]

Note 5    Para 4.93.    [Back]

Note 6    Para 4.94.    [Back]

Note 7    Para 4.97.    [Back]

Note 8    Para 4.99.    [Back]

Note 9    Para 4.103.    [Back]

Note 10    Para 5.5.    [Back]

Note 11    Para 5.9.    [Back]

Note 12    Para 5.19.    [Back]

Note 13    Para 5.20.    [Back]

Note 14    Para 5.23.    [Back]

Note 15    Para 5.25.    [Back]

Note 16    Para 5.34.    [Back]

Note 17    Para 5.36.    [Back]

Note 18    Para 5.37.    [Back]

Note 19    Para 6.2.    [Back]

Note 20    Para 6.15.    [Back]

Note 21    Para 6.20.    [Back]

Note 22    Para 6.21.    [Back]

Note 23    Para 6.28.    [Back]

Note 24    Para 6.33.    [Back]

Note 25    Para 7.34.    [Back]

Note 26    Para 7.49.    [Back]

Note 27    Para 7.74.    [Back]

Note 28    Para 7.85.    [Back]

Note 29    Para 7.105.    [Back]

Note 30    Para 7.106.    [Back]

Note 31    Para 7.114.    [Back]

Note 32    Para 7.125.    [Back]

Note 33    Para 7.129.    [Back]

Note 34    Para 7.135.    [Back]

Note 35    Para 7.138.    [Back]

Note 36    Para 7.143.    [Back]

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The Law Commission

PART VIII OUR RECOMMENDATIONS

PART VIII

OUR RECOMMENDATIONS