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The Reform of Double Jeopardy
Annabelle James, LL.B., MA.
Lecturer in Law
Leeds Business School,
Leeds Metropolitan University
and,
Nick Taylor, LL.B
Lecturer in Law
Centre for Criminal Justice Studies,
University of Leeds
and,
Clive Walker, LL.B., Ph.D
Professor of Criminal Justice Studies
Director, Centre for Criminal Justice Studies,
University of Leeds
Copyright © 2000 Annabelle James, Nick Taylor and Clive Walker
First published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
First published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
Summary
One of the more controversial recommendations of the Macpherson Report on
the Stephen Lawrence Inquiry was that consideration should be given to reforming
the law relating to double jeopardy. As a result the Law Commission was asked
by the Home Secretary to consider the current state of the law and to make
recommendations; the House of Commons Home Affairs Committee in turn commented
upon the proposals which were forthcoming. This paper considers the meanings
of the double jeopardy rule currently reflected in the autrefois acquit and
convict rules and the Connelly principle. It then explains that whilst
the Lawrence case brought the double jeopardy rule into the spotlight, there
are other underlying concerns driving the cause of reform, and these are
discussed. Finally, the reports of both the Law Commission and the House
of Commons Home Affairs Committee are examined in detail.
Contents
Introduction
Following the murder of Stephen Lawrence and the subsequent inquiry into
the events surrounding his death by Lord Macpherson (Lawrence Inquiry 1999),
a recommendation was made 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.” (Lawrence Inquiry 1999, para 7.46). This
call represented a challenge to the centuries old rule against double jeopardy.
As a result, the Law Commission was invited by the Home Secretary:
“To consider the law of England and Wales relating to double jeopardy (after acquittal)... 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...” (Law Com CP No 156, para 1.1).
In October 1999 the Law Commission published its Consultation Paper, Double
Jeopardy. It sparked in turn interest from the House of Commons Home
Affairs Select Committee, whose paper, The Double Jeopardy Rule, appeared
in June 2000 (Home Affairs Committee 2000). These reports form the focus
of this paper, which will explain and analyse the causes of interest in double
jeopardy as well as the suggested remedies.
Meanings of the double jeopardy rule
Overall, the Law Commission’s Consultation Paper gives an excellently detailed
examination of a subject which has not been the topic of sustained examination
in recent times, either by the courts or by UK-based academics (but see,
Friedland, 1969, Thomas, 1998). It is especially pleasing to note the emphasis
placed upon compliance with human rights standards.
In basic terms the rule against double jeopardy provides that the State should
not be allowed to make repeated attempts to convict an individual for the
same alleged offence. It was described as follows by Black J. in the US Supreme
Court:
“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” (Green v US 355 US 184 (1957) p.187)
In English law the rule against double jeopardy is reflected in two main
ways - via the autrefois acquit and convict rules (Law Com CP No 156, paras
2.10-2.18) and under “the Connelly principle” (Connelly v
DPP [1964] AC 1254). The autrefois rule provides that no-one shall
be tried for a second time for an offence of which he or she has already
been either convicted or acquitted. It is a narrow rule in the sense that
the offence concerned is only the “same” offence if it is both the same in
law and the same or substantially the same in fact. There are three exceptions
to the autrefois rule. First, the prosecution has a right to appeal to the
Divisional Court against acquittal in summary cases on the ground that the
decision “is wrong in law or is in excess of jurisdiction” (Magistrates’
Courts Act 1980 ss.28, 111; Supreme Court Act 1981 s.28); such a case can
subsequently be taken to the House of Lords if the Court of Appeal states
that there is a matter of public importance at stake. Secondly, retrial is
permissible if “the interests of justice so require” following appeal by
the defendant against conviction (Criminal Appeal Act 1968 s.7). Thirdly,
there are some “tainted acquittals” which can be challenged in the High Court.
These are acquittals in circumstances where there has been an offence of
interference with, or intimidation of, a juror or witness (Criminal Procedure
and Investigations Act 1996 s.54). If the acquittal is quashed by the High
Court as a nullity, then there is no restraint on a further prosecution.
The Connelly principle is somewhat wider and offers protection through
the special operation of abuse of process rules (Law Com CP No 156, paras
2.19-2.27). Where the facts relied upon in a prosecution are substantially
the same as those in a previous trial, the defendant cannot be tried on a
subsequent occasion for any offence arising out of those facts unless there
are “special circumstances” proven by the prosecution. Though there is little
case law on what might constitute special circumstances, it has been suggested
that the emergence of new evidence would suffice (Attorney-General for
Gibraltar v Leoni, Court of Appeal, 1999 (unreported) see Law Com CP
No 156, para 2.24). A further qualification is that a person who has been
convicted of an offence can be tried for an aggravated form of that offence
if the facts constituting the aggravation have arisen after the first conviction
(R v Thomas [1950] 1 KB 26). By contrast, a person who has been acquitted
of a lesser offence may not be tried for an aggravated form even if the special
circumstances of new evidence apply (R v Beedie [1998] QB 356, Dingwall,
2000).
A third aspect of double jeopardy concerns its influence on the use of evidence
in a subsequent trial which challenges a prior acquittal (the relevant rules
are not necessarily themselves part of the double jeopardy doctrine, since
the charges in the second case may not involve the same facts or offences
as in the first trial). The point can be illustrated by R v Z (The
Times, 1999a (Court of Appeal), [2000] 3 WLR 117 (House of Lords)). In this
case the Crown appealed against a ruling in the Crown Court during a preparatory
hearing. Z, who was the defendant in the Crown Court, was charged with a
single count of rape allegedly committed against C in 1998. The defence claimed
that C either consented or was believed by the defendant to consent. For
its part, the prosecution sought to adduce similar fact evidence of four
previous incidents involving the defendant and four different women-complainants
as witnesses, M in 1984, N in 1985, O in 1989 and P in 1993. There had been
a trial on the charge of rape in respect of each of these four incidents,
but only in the case of N was the defendant found guilty of rape. In the
other three cases, the defendant was acquitted by verdict of the jury. In
all four previous cases, the defendant accepted that sexual intercourse had
occurred with the complainant – but he maintained with equal constancy
that each complainant had consented. The Crown submitted that the evidence
of the four prior complainants should be admissible as similar fact evidence
(see, DPP v Boardman [1975] AC 421, DPP v P [1991] 1
AC 447). The judge ruled as inadmissible the evidence the potential hostile
evidence from the three witnesses in respect of whose complaints Z had been
acquitted, viewing such evidence as potentially challenging a conclusive
and binding verdict (see Sambasivam v Public Prosecutor, Federation of
Malaysia [1950] AC 458 at p.479). The sole conviction in respect of N
could not be excluded in the same way, but neither could it of itself establish
a sufficiently cogent picture of similar incidents to be admissible as similar
fact evidence. Similar fact evidence relating to one or more previous incidents
may be admitted when there has been a conviction or convictions in respect
of such incidents and, despite the presumption of innocence, when there has
been no prosecution in respect of them at all. It was argued that the three
acquittals did no more than establish that the jury in each case cannot have
been sure of guilt, because of their view as to either the complainant’s
evidence or, perhaps, the defendant’s state of mind. Secondly, and in any
event, it was pointed out that the rationale upon which similar fact evidence
was admitted was that the coincidence of similar facts on several previous
occasions may have an evidential force not possessed by the facts of any
one case alone.
The Court of Appeal was attracted by both submissions, which would allow
the events resulting in acquittal to be treated as similar fact evidence.
It did not accept in theory that prior acquittals should be given an additional
significance and value, outweighing the public interest in a correct verdict
on all the available evidence in the later case. Instead, the Court of Appeal
felt that trial judges had sufficiently flexible powers to avoid injustice
by the use of stays of abusive proceedings (see, Hunter v Chief Constable
of West Midlands [1982] AC 529; R v Belmarsh Magistrates’ Court, ex
p. Watts [1999] 2 Cr App R 188) or by the exclusion of evidence under
section 78 of the Police and Criminal Evidence Act 1984. However, the Court
was forced to recognise that the weight of precedent was to the effect that
the significance of a prior acquittal is not merely to preclude a second
prosecution for the same offence but extends to constrain the Crown in a
subsequent prosecution from asserting, or adducing evidence to show that
the defendant was actually guilty on the charge in respect of which he was
acquitted not even subject to an exception for where fresh evidence emerges
(see, Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458; DPP v Humphreys [1977] AC 1). At the same time, the conclusion
was sustained with regret, and support was expressed for the view that the
restriction is both unnecessary and undesirable.
From its loftier legal vantage point, the House of Lords was able to break
free from the shackles of legal precedent, and the result was to overturn
the judgment of the Court of Appeal. Their Lordships emphasised that though
the decision in Sambasivam v Public Prosecutor, Federation of Malaya
([1950] AC 458) could be viewed as correct on its facts, its ratio decidendi
should be confined more strictly than previously understood ([2000] 3 WLR 117 at p.135 per Lord Hutton). Inevitably, if prosecutors later wish to utilise
in a hostile way evidence which had previously been rehearsed in litigation
resulting in acquittal, this will in one sense undermine the acquittal by
suggesting at least that the facts should be understood differently or even
that the defendant should have been found guilty. However, this utilisation
does not fall under the double jeopardy rule, since that rule is confined
to a later prosecution on the same facts as before and which will punish
the defendant for those facts:
“(1) The principle of double jeopardy operates to cause a criminal court in the exercise of its discretion, and subject to the qualification as to special circumstances stated by Lord Devlin in Connelly's case...to stop a prosecution where the defendant is being prosecuted on the same facts or substantially the same facts as gave rise to an earlier prosecution which resulted in his acquittal (or conviction).... (2) Provided that a defendant is not placed in double jeopardy as described in (1) above evidence which is relevant on a subsequent prosecution is not inadmissible because it shows or tends to show that the defendant was, in fact, guilty of an offence of which he had earlier been acquitted. (3) It follows from (2) above that a distinction should not be drawn between evidence which shows guilt of an earlier offence of which the defendant had been acquitted and evidence which tends to show guilt of such an offence or which appears to relate to one distinct issue rather than to the issue of guilt of such an offence.” (([2000] 3 WLR 117 at p.135 per Lord Hutton)
At the same time, though not falling strictly within the double jeopardy
rule, the House of Lords recognised that a trial judge would have to consider
the fairness of allowing facts arising from earlier acquittals to be resurrected.
Aside from the inevitable and highly prejudicial revelation of previous brushes
with the law, the defendant may be disadvantaged by lapse of time (and memory),
by having lines of argument and strategy revealed and by having the later
trial elongated and made more complex. No firm conclusions were reached on
this matter as applied to Z, since it was returned to the trial judge for
consideration, but one hopes that the doubts cast on the recent judgment
of the Supreme Court of Canada in Reg. v. Arp ([2000] 2 L.R.C. 119)
related more to the rather loose statement that "...an accused need not
repeatedly defend himself against the same allegations...” rather than the
principled view that “in most situations, it will be unfair and inappropriate
to admit the evidence underlying the prior acquittal as similar fact evidence
in a subsequent trial of the same accused.” (at pp. 145-146 per Cory J.).
In any event, both the Court of Appeal and the House of Lords considered
that the proposals of the Law Commission (Law Com CP No 156, para 8.39) which
would effectively dispense with the decision in Sambasivam v Public
Prosecutor, Federation of Malaya ([1950] AC 458) were sound and desirable.
These and other proposals of the Law Commission and House of Commons Home
Affairs Committee will be considered in this paper. By no means all have
been received by the legal communities so favourably as this aspect of reform.
However, before embarking on that survey, further explanations will now be
given as to why the double jeopardy rules have become controversial.
Pressures for change
The double jeopardy rule came into play in respect of the racist murder of
Stephen Lawrence because of widespread dissatisfaction with the investigation
by the Metropolitan Police. As a result, the Lawrence family were motivated
to mount a private prosecution against three defendants, but the process
faltered in 1996 when the trial judge ruled out as unreliable the identification
of the main prosecution witness. The concern then arose that if a more effective
police investigation were to be mounted and the same suspects were to be
implicated, the double jeopardy rule would block any further prosecution.
There was a perception that this would result in injustice to the family
and be contrary to the public interest:
“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.” (Lawrence Inquiry 1999, para 7.46)
Whilst the Lawrence case was the proximate cause of the attention given to
double jeopardy, there were some other underlying concerns which were driving
the cause of reform. These are arguably more important, for neither of the
two reform papers advocate changes which, if implemented, would have impacted
on the Lawrence case. The added interest arises not only from the general
governmental mantra of modernization of criminal justice (and it must be
admitted that this is an area of terrifying common law complexity) but also
from two more specific causes: the development of scientific techniques;
and the impact of human rights.
As for scientific techniques, the pressure to relax the double jeopardy rule
arises from the possibility of new evidence of great probity becoming available
after an acquittal of a suspect. Of course, this scenario has always been
possible. For example, new witnesses, who did not previously realise the
relevance of their testimony or who were previously intimidated into silence,
might under later circumstances give an account. Alternatively (as in the
Lawrence case), the police investigators might review the crime from a different
perspective in the light of later information – perhaps the confirmed
offending pattern of the earlier suspect or the confirmed incompetence of
earlier investigators. However, an enhanced factor which has in contemporary
times impacted upon the later reinvestigation of unsolved crime is the
advancement of forensic science. The prime example relates to the development
of DNA profiling, which is increasingly able to analyse smaller samples and
wider types of bodily material and, with the establishment of the National
DNA Database, can do so with greater chances of matching the sample from
a known criminal (Forensic Science Service Annual Report 1998-9, p.15,21).
Less well publicised but of substantial importance are the developments in
forensic fingerprinting, which include a more sophisticated notion of what
is a “match” (Walker and Starmer, 1999) as well as the more effective use
of fingerprint data through digitisation and comparison through the National
Automated Fingerprint Identification System (Home Office 1999).
The development of scientific tests has produced in recent years a number
of successful prosecutions where forensic techniques at the time of the crime
could not have achieved the requisite level of proof. This process is deliberate,
as the police and Forensic Science Service have embarked upon a “cold case
review” of unsolved murders. Examples of the kinds of results which are expected
include the convictions of Anthony Diedrick and John Taft, both in 1999.
The case of Anthony Diedrick arose from the murder of Dr Joan Francisco in
1994. At first, the spotlight of suspicion seemed to fall upon a colleague
of the victim who had been recently convicted of the forgery of her signature
(The Times, 1997). However, the family of the victim successfully brought
civil proceedings against Anthony Diedrick in 1998 (The Times, 1998). This
extraordinary result prompted the police to review their investigation, which
lead to the discovery of tiny blood spots on the T-shirt of the victim, spots
which matched the blood of Diedrick according to analytical techniques which
were far less effective in 1994 (The Times, 1999b). It also appears from
the news report that the blood spots were not in any event detected in 1994,
so there were two relevant developments in this case.
A further example was the murder in 1983 by John Taft of Cynthia Bolshaw,
the “Beauty in the Bath” (The Times, 1999c). After his ex-wife latterly decided
to inform the police of his confessions to her that he had visited the victim
on the night of the murder, the police re-examined the clothing of the victim
and matched a DNA sample from Taft with semen on a negligée.
As well as forensic advances, the human rights concerns are at play in shaping
the operation of double jeopardy, just as it is influencing many other parts
of the criminal justice process. Of course, at one level, it may act as a
restraint upon retrial, and this influence is considered in Part III of the
Law Commission Consultation Paper. Pursuant to the Human Rights Act 1998,
it is imperative that all double jeopardy provisions reflect the fundamental
rights laid down in the European Convention on Human Rights, most notably,
under Protocol 7:
“Article 4 – Right not to be tried or punished twice
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.” (The Protocol has not yet been ratified by the UK, but there is a commitment to do so: Lord Williams 1999, col.201)
There is some debate as to whether the European version of the autrefois
rule in Article 4(1) requires a second trial to differ on the law and facts
or just the facts (Law Com CP No 156 para 3.27). The interpretation of Article
4(1) of the Seventh Protocol adopted in the case of Oliveira v Switzerland
(App. no. 25711/94, RJD 1998-V) is that successive prosecutions will
not violate Article 4 if they relate to “a single act constituting various
offences”, so that if the offence charged in the second trial is different,
even if based on the same facts, there is no breach. The alternative
interpretation, in Gradinger v Austria (App. no. 15963/90, A 328-C,
1995), is that the second prosecution is forbidden if it arises out of the
same or substantially the same facts regardless of its legal properties.
As for Article 4(2), the reopening of a case must be under judicial authority
and in the circumstances there specified. Looking at these provisions, the
Law Commission suggested that English law as it stands is “generally
compliant” with the European Convention (Law Com CP No 156 para 3.49). One
concern about English law being unduly permissive concerns the exception
to the Connelly principle which allows a second prosecution if there
are new special circumstances in fact without demanding a new offence (Law
Com CP No 156 para 3.41). But in some circumstances, at least theoretically,
English law is actually less permissive than Article 4(2), since the autrefois
rule is not subject in all respects to exceptions for new evidence or fundamental
defects in previous proceedings (Law Com CP No 156 para 3.43-3.48). Consequently,
unlike a number of other areas of law which are under scrutiny from the
perspective of suspects’ rights, the English law version of double jeopardy
has a fairly clean bill of health.
However, another emergent aspect of European Convention jurisprudence concerns
the recognition of victims within criminal justice. The Convention does not
accord a right to bring a private prosecution (Helmers v Sweden, App.
no. 11826/85, Ser. A 212-A (1991) at para. 28). But it does impose a duty
on the state to take reasonable steps to protect a citizen from a criminal
violation of Convention rights by others (A and B v UK 25599/94, RJD
1998-VI). Therefore, victims have been accorded the right to have the crimes
against them effectively investigated (Aksoy v. Turkey, App.no.21987/93,
RJD 1996-VI) and prosecuted (Stubbings & Others v United Kingdom,
App. Nos. 22083/93 and 22095/93) by state agencies, and the more serious
the crime, the stronger the right. They also have corresponding rights to
protection from clearly defined assailants (Osman v UK., Appl. no.
23452/94, RJD 1998-VIII). Then, they have rights not to be subjected to unduly
distressing and stressful court process (Stanford v United Kingdom,
App.no. 16757/90, Ser A 282, 1994). All of these factors suggest that national
laws must allow and muster continued efforts to bring criminals to justice
so as to respect the rights of victims.
Proposals
Moving on to the reforms proposed both by the Law Commission and House of
Common Home Affairs Committee, these can be tackled by reference first to
the two-fold classification of the double jeopardy doctrine already explained.
Additionally, other more novel extensions to the exceptions to the doctrine
are considered, as well as a considerable range of other matters.
Autrefois rule and Connolly principle
Whilst the Law Commission recommends that rules against double jeopardy should
be retained, it recognises that the scope of the rules should be clarified
and that some changes are necessary (Law Com CP No 156 para 1.19).
Before moving on to details, Part IV of the Law Commission’s Consultation
Paper deals with the more basic issue of “the scope of the rule against double
jeopardy”, which it considers in terms of the contested meanings put forward
under Article 4(1) of Protocol 7. In other words, should there be a narrower
bar on later prosecutions, based on the invocation of the same offence as
a previous trial (as in the autrefois rule), or a wider bar, based on the
use of the same facts in relation to any offence (as in a combination of
the autrefois rule and the Connolly principle)? The question is answered
by reference to the rationales for the concept of double jeopardy itself
(Law Com CP No 156 para 4.4-4.12). These include that repeated trials on
indictment inevitably will disadvantage the defendant by increasing the
possibility of wrongful conviction especially through adverse publicity from
the first trial and also the tactical advantages gained by the prosecution
via the revelation of a defence in the initial trial. Additionally, it will
cause prolonged distress for the defendant who is subject to a retrial and
may cause any defendant acquitted of a serious offence to live in fear of
further prosecution. Repeated trials are also inconsistent with the principle
of finality. Their possibility might also diminish the incentive for the
police and prosecution to ensure the case is properly investigated and presented
on the first possible occasion. The Law Commission concludes that these mischiefs
apply equally to both the narrower and wider bars, therefore, it makes sense
to retain the English law’s basic adherence to the wider bar and to state
it in clear statutory terms as all fall within an extended form of the double
jeopardy concept (Law Com CP No 156 para 4.16).
There is a strong argument that this is as far as the reforms need go, and
that the Law Commission’s exploration in its Consultation Paper of possible
qualifications in Parts V (“New evidence”) and VI (“Fundamental defect in
the first trial”), discussed below, is contradictory to the rationales for
double jeopardy in principle. However, given the more permissive international
standards and perhaps also the growing recognition of the interests of victims
within the criminal justice process, the present rules are arguably too absolute
in favour of the defendant (see, Home Affairs Committee 2000, para 18). It
is therefore accepted, that new carefully drawn exceptions to charging with
the same offence on a second occasion might be instituted, as next
described.
Part V of the Consultation Paper discusses whether the discovery of new factual
evidence should provide an exception to the double jeopardy rule, akin to
the “special circumstances” of the Connolly principle and in so far
as permissible under Article 4(2) of Protocol 7. The Commission’s provisional
view is that new evidence should allow the reopening of an acquittal even
for the same offence under certain strictly confined conditions. The possibility
of new evidence arising is felt to be realistic and compelling, especially
given the recent development of forensic techniques which could provide
convincing but unforeseen evidence for a second trial for the same offence
(Law Com CP No 156 para 5.17). Rather less compelling is the idea that
“new” evidence might also arise through changes in the legal rules as to
admissibility (Law Com CP No 156 paras 5.47-5.48), an idea rejected by the
Home Affairs Committee (Home Affairs Committee 2000, para 31) and also by
the Court of Appeal on reviewing old cases referred back by the Criminal
Cases Review Commission (James, Taylor and Walker, 2000 p.143).
The first condition concerns the seriousness of the offence. This can be
specified by reference to the likely sentence that the defendant would receive
were he or she to be convicted of the second offence, having pleaded not
guilty. The Law Commission suggest an offence likely to attract a sentence
of three years or more would suffice (Law Com CP No 156 para 5.27).This seems
a rather wide potential range for such an extraordinary effort, and more
attractive, at the other end of the scale, is the suggestion from the Home
Affairs Select Committee that the new rules should apply only to “the most
serious offence” – where a life sentence would be available (Home Affairs
Committee 2000, para 24)(1). Perhaps,
given the guidelines in Billam ((1986) 8 Cr App R (S) 48) a definition
of “seriousness” based on five years imprisonment would seem an appropriate
point of compromise.
The second condition relates to the strength of the new evidence. It is argued
that the exception should only be available where the new evidence makes
the prosecution’s case “substantially stronger” (Law Com CP No 156 para 5.38)
than it was at the first trial. Additionally, the overall strength of the
revised case should be high. It would be wrong to allow the exception to
double jeopardy as a result of the initial prosecution being very weak where
the additional evidence still produces a relatively weak case. The Paper
seeks views on where to set the appropriate threshold when measuring the
strength of the case; should it be “highly probable that a jury would
convict” or the case “that the court is sure that such a jury would
convict”? Should the threshold be lower where the first prosecution was a
private one? (Law Com CP No 156 para 5.42-5.45) It might be commented
that these formulae appear strongly prejudicial to the fairness of the second
trial, given that such cases would be rare and well-publicised. What jury,
knowing the High Court has said they should probably convict on the evidence
it has heard, would not be affected by such pressure? One might contend that
any second trial is bound to be preceded by damaging publicity attached to
the original trial and the High Court proceedings on quashing that acquittal,
making unfair any subsequent trial. However, this unfairness would be compounded
by having the High Court further condemning the suspect when deciding to
quash the earlier acquittal on the criteria suggested. Accordingly, it would
be preferable simply to say that the new evidence makes the previous acquittal
“unsafe” (as a counterpart to the Criminal Appeal Act 1995, section 2), thus
emphasising the past decision rather than hypothesising as to any future
one. This point was entirely endorsed by the Home Affairs Committee (Home
Affairs Committee 2000, para 41).
In an attempt to ensure that the “new evidence” exception does not have an
adverse impact upon police efficiency, it is next provisionally recommended
that the power to reopen an acquittal should only be available where the
new evidence could not, with due diligence, have been adduced at the first
trial (Law Com CP No 156 para 5.48). This standard could also have a bearing
on private prosecutions, as it may be factually difficult for the private
prosecutor to find the relevant evidence. Perhaps there might be a role here
for the Criminal Cases Review Commission to act as an investigator on behalf
of the High Court, which is to have jurisdiction in deciding whether an acquittal
should be quashed and whether to allow a retrial ((Law Com CP No 156 para
5.68). Without much discussion, the Home Affairs Committee rejects this condition
of due diligence:
“If the purpose of the exercise is to convict the guilty, why should it matter whether the initial police investigation was conducted with due diligence anyway? ... we are not persuaded that a relaxation of the double jeopardy rule will cause future police investigations to be conducted at a lower standard than now required by ACPO. If a second trial is ruled out because police incompetence had failed in the first, the only winner is the guilty. The victim or the victim's family are left doubly denied justice.” (Home Affairs Committee 2000, para 36)
However, the argument is surely that the failure to demand propitious state
action can be oppressive in relation to the defendant – there comes
a point when convictions should not be attained by unconscionable process
(see, R v Horseferry Road Magistrates' Court, ex parte Bennett [1994] 1 AC 42; R v Mullen [1999] 3 WLR 777). In reality, the standard may
not make a difference. According to the Committee:
“The DPP told us: ‘no judge would ever allow the prosecution a second bite at the cherry to make up for police incompetence at the first trial...’" (Home Affairs Committee 2000, para 47)
Finally, the Law Commission suggests the inevitable fall-back condition that
a retrial must be in the interests of justice (Law Com CP No 156 para 5.60).
This ground could rule out a third trial following an acquittal at a second
trial under the proposed rules; but the bar on repeated trials should not
be absolute in the Law Commission’s view in case, for example, the jury at
one of the first two trials had to be discharged at an early stage. However,
one might argue that it would almost certainly be unfair (whatever the
circumstances) to have another trial of a defendant twice acquitted on the
same charge, and this should be forbidden from the outset rather than relying
on the exercise of discretion. The “interests of justice” standard will also
impact on the time within which a second trial can be brought. The Law Commission
invites views on the issue of establishing a fixed time limit for actions
(Law Com CP No 156 para 5.57). It is contended that the “interests of
justice” standard (and the residual discretion relating to abuse of process)
should be sufficient to deal with an unfair lapse of time and there is no
need to set a fixed period.
Taken as a whole, the conditions seem broadly appropriate, and, given the
width of the “interests of justice” test, it is difficult to conceive of
any others of relevance. They would have the effect of confining second trials
to very few cases, though they would be cases where the public interests
in condemning the offender, protecting the public and responding to the victim
are at their strongest. The proposed procedures also seem appropriate; it
is suggested that the High Court should be the court to quash an acquittal
and allow a retrial, as this would allow for a right of appeal to the Court
of Appeal (Law Com CP No 156 para 5.68). Any changes would be subject to
further safeguards, such as consideration being given as to how the discretion
to prosecute would be exercised under the Crown Prosecution Service Code
of Practice, and an express saving for the judicial discretion to stop
proceedings as an abuse of process (Law Com CP No 156 para 7.8 ).
Having extended the basic concept of double jeopardy to cover cases within
the Connelly principle (involving a later prosecution involving the
same facts plus new evidence but relating to a different offence), the Law
Commission calls for a corresponding power for the High Court to authorise
prosecution for a second offence when the first trial resulted in a conviction
or an acquittal (Law Com CP No 156 para 5.69-5.72).
Novel exceptions to the double jeopardy doctrine
Part VI of the Law Commission Consultation Paper deals with a new possible
exception to the double jeopardy rule, namely, where there has been a
“fundamental defect” in the first trial, as seems to be envisaged by Article
4(2) of Protocol 7. The Law Commission believes that a “fundamental defect”
is something in the nature of an attack on the system itself (not just
misdirections or errors which can be the subject of a prosecution right to
appeal) and is currently reflected in the tainted acquittals procedure in
the Criminal Procedure and Investigations Act 1996, section 54, which is
aimed at the defendant who benefits from an attack on the system involving
intimidation of, or interference with, a juror or witness (Law Com CP No
156 paras 6.3-6.6). Having accepted within law the principle of challenges
to tainted acquittals, there are said to be some related situations which
are difficult to distinguish (Law Com CP No 156 paras 6.14-6.24). Yet, the
Home Affairs Committee is rather less convinced. There have been no instances
of use of the 1996 Act powers, so, “Without firm evidence of why the procedure
has not been used, it is difficult to judge whether these further changes
are either necessary or desirable.”( Home Affairs Committee 2000, para 59)
However, in the context of a rare opportunity for law reform, it is difficult
to think of principled arguments against rationalising the law along lines
suggested by the Law Commission as follows.
The first situation concerns the range of persons who are affected by the
unlawful influence. The Consultation Paper identifies interference with,
or intimidation of, judges or magistrates (Law Com CP No 156 para 6.8 ),
but the same should surely apply to a defendant whose case involves, for
example, a prosecutor who is bribed or intimidated to provoke a direct acquittal.
Hopefully, this is not a problem in reality (save perhaps in Northern Ireland,
and see the US case, People v Aleman 281 III. App.991 1996), and,
as the Home Affairs Committee points out, “While interference with anyone
involved in a trial should be discouraged, judges and magistrates are presumably
expected to be less vulnerable to pressure than jurors and witnesses.” (Home
Affairs Committee 2000, para 59) But such pressures are not inconceivable.
The second situation concerns the range of influences which are accepted
as undermining the acquittal. The present law states that a particular person
should be convicted of an administration of justice offence before the acquittal
can be quashed. However, in order to reopen an acquittal under this head
the Law Commission questions whether an actual conviction should be necessary
(Law Com CP No 156 para 6.9). For example, if the author of the interference
or intimidation was dead, or could not be identified or apprehended, then
the acquittal could not be reopened. The Law Commission therefore proposes
that the necessity of a conviction should be replaced with a requirement
that the High Court should be satisfied beyond reasonable doubt that an
administration of justice offence has been committed (Law Com CP No 156 para
6.12). This idea troubles the Home Affairs Select Committee: “The second
proposed change raises greater issues of principle: it would involve a court
deciding—without necessarily hearing from the person involved—whether
an offence had been committed but not convicting anyone for that offence.”
(Home Affairs Committee 2000, para 59) On the other hand, the Law Commission
does not wish to extend the range of offences that are currently encapsulated
within the tainted acquittals procedure (perverting the course of justice;
intimidating a witness or juror; or being a secondary party to perjury).
Further exceptions (including the offence of perjury itself) would be seen
simply as a rejection of the original verdict; perjury can be dealt with
as new evidence possibly justifying a second trial for the same offence (Law
Com CP No 156 para 6.20). However, one wonders why conspiracy to commit the
listed offences should not be listed.
The third aspect concerns causation - should the defendant face a retrial
where a third party has intervened in these ways? Perhaps one might specify
that the interference or intimidation should at least be by, or on behalf
of, the defendant and perhaps with the defendant’s knowledge or complicity.
This might rule out pernicious actions as part of an ongoing independent
campaign against a judge (such as one who enjoys fox-hunting) which happen
to coincide with a trial.
In any event, the Law Commission recognises the need for greater openness
in the procedures relating to the quashing of acquittals. At present, the
matter is considered in chambers without a hearing, which probably breaches
Article 6 of the European Convention, especially in the proposed cases where
there will be no conviction for an administration of justice offence (Law
Com CP No 156 para 6.25-6.41).
As a footnote to the discussion to date, Part VII of the Consultation Paper
briefly considers the possible residual role of judicial discretion under
the Connelly principle so as to allow a second prosecution where there
are “special circumstances”. Such a discretion would make unnecessary the
specific rules for new evidence or fundamental defects. However, given the
lack of clarity which would result and the possible breach of the bounds
of Article 4(2) of requirements of Protocol 7, the Commission rightly suggests
that the Connelly principle be wholly superseded by the new rule (Law
Com CP No 156 para 7.5).
Evidential challenges to acquittal
In Part VIII, the Consultation Paper looks at the rule (as illustrated in
R v Z) - that an acquittal cannot subsequently be challenged
in other proceedings against the acquitted defendant by advancing evidence
that he was in fact guilty of the offence of which he was acquitted. Of course,
the law was considered by the Law Commission largely in the light of
Sambasivam v Public Prosecutor, Federation of Malaysia [1950] AC 458
and without the benefit of the later confinement of the law by the House
of Lords judgment in R v Z itself. After considerable debate, the
Law Commission concluded that the rule would become redundant if its new
version of the double jeopardy rule were to be adopted (Law Com CP No 156
para 8.40). In so far as the rule has a wider impact (as a potential form
of issue estoppel, where the later charge laid is not of itself inconsistent
with a previous acquittal but the prosecution seeks to adduce evidence which,
if accepted, means that the defendant must have been guilty of the offence
of which he or she was acquitted), the view of the Law Commission is that
the rule is largely redundant since it would not apply where new evidence
has emerged since the previous decision (Law Com CP No 156 para 8.39). This
assertion seems dubious in the light of the precedents existing before the
House of Lords judgment in R v Z, but it is more difficult to argue
with the further suggestion by the Law Commission that the evidential rule
should not apply to an assertion supported by new evidence which could not
with due diligence have been adduced at the first trial (Law Com CP No 156
para 8.34, 8.40). In any event, this third arm of the double jeopardy rule
has now been settled by the House of Lords along the lines suggested by the
Law Commission and perhaps even in more robust terms.
Other matters
Part IX of the Consultation Paper considers whether, in light of the adoption
of the new double jeopardy rule, any changes should be made to the rules
on what counts as an acquittal or conviction. The provisional proposal is
that no fundamental changes be made and that the term “acquittal” should
still apply even where the prosecution offers no evidence after committal
(Law Com CP No 156 para 9.9, 9.22). It is argued that it would lead to a
disadvantageous position for a defendant were the prosecution able to “put
off” proceedings in order that they could then in subsequent proceedings
adduce evidence they could have produced the first time round. At the same
time, acquittals from foreign jurisdictions should be recognised (Law Com
CP No 156 para 9.15). However, it must be pointed out that the meaning of
such process might be problematic in reality as the division between formal
criminal justice process and domestic or disciplinary process may not always
be clear.
A matter of potentially greater moment which the Consultation Paper merely
touches upon is the prosecutor’s rights to appeal. It notes that these fall
outside of the restraints imposed by Protocol 7 since they are viewed as
part and parcel of the “law and penal procedure” of the normal progress of
a case through the criminal justice system rather than distinct or new
proceedings amounting to a second prosecution. Such appeals are common in
Continental European systems.
In response to the question posed in the Consultation Paper, as to whether
the law of double jeopardy can sensibly be reformed without also rationalising
the law relating to prosecution appeals (Law Com CP No 156 para 11.3), it
is not essential to combine the two together. However, it is essential that
prosecution appeal rights be examined, since it is foreseeable that pressure
will arise for appeals from judicial directions and decisions as to admissibility
or abuse of process based on the Human Rights Act 1998 which effectively
result in the acquittal of the defendant. The Attorney-General is reported
as already considering law reform along these lines, and his concerns are
shared by the Director of Public Prosecutions:
“"the current inability of the Crown to appeal what it believes to be a wrong ruling that a trial is an abuse of the process should be subject to appeal.... Rulings on admissibility of evidence ... should be subject to careful procedural safeguards... But if a judge makes a ruling which is clearly wrong, which therefore deprives society and the victim of the chance of, for instance, a jury assessing the weight of a confession ... the Crown, should have the right to appeal that sort of ruling...if a judge stops a case at the close of the prosecution on a basis which is a purely legal one which is wrong, we do, of course, at present, have the academic right, via the Attorney General, to refer the question to the Court of Appeal, so that, retrospectively, the Court of Appeal can say, 'Well, the judge shouldn't have stopped the case', but that has no effect on the instant defendant, and I think we ought to look carefully at whether the time has come for that to be more than an academic exercise but a real one” (Home Affairs Committee 2000, para 60).
In July 2000 a Law Commission Consultation Paper (No 158, Prosecution Appeals
against Judges’ Rulings) was issued. It stated that though this was a distinct
area of law it was closely linked to double jeopardy and thus the conclusions
drawn following the period of consultation would be issued at the same time
as the conclusions drawn from the double jeopardy consultation process (Law
Com CP No 158 para 1.10).
The mechanics of any new appeal process may be assisted by the splitting
off as pre-trial issues matters such as evidential admissibility pursuant
to preparatory hearings under the Criminal Procedure and Investigations Act
1996. No doubt this trend will be given a considerable boost when Lord Justice
Auld reports on his review of criminal process by the end of 2000
(http://www.criminal-courts-review.org.uk/).It
will then be possible to deal with disputes as to admissibility without having
a jury sequestered away for weeks on end while a slot is found in the timetable
of the Court of Appeal.
One consideration then to be borne in mind would be the elongation of process
which would inevitably result. The problem has been examined many times by
the European Court of Human Rights, the majority of cases arising from Italy
(See especially Corigliano v Italy App. No.8304/78, Ser.A vol.57,
(1983) 5 EHRR 334). In deciding whether the delay is acceptable or not under
Article 6, the Court will consider the inherent complexity of the case (arising
from complexity in law or fact or the volume of facts or defendants), the
conduct of the defence (delays attributable to unlawful absconding will not
count) and the conduct of the prosecution. The workload of the courts and
insufficient state resources are not excuses (Zimmerman and Steiner v
Switzerland, App. no.8737/89, Ser.A.vol.66, (1984) 6 EHRR 17).
Implementation
Aside from the judicial urgings to act upon the Law Commission’s recommendations
in R v Z (which in part became a self-fulfilling prophecy in the hands
of the House of Lords), strong political pressure for action has emerged.
Thus, the Conservative Party unveiled plans to reform the double jeopardy
doctrine in May 2000 (The Times 2000), thereby pressuring the government
to do likewise even before the Law Commission’s final report. However, Paul
Boateng, Minister of State for the Home Office, recently stated, “It is right
to have a full and informed discussion of all the issues thrown up by the
law of double jeopardy and of the balance that we need to strike between
the rights of offenders and the rights of the victims of crime. It is right
to respond not by a knee-jerk reaction to either side of the argument, but
in a careful and considered way”. Reform is therefore, most unlikely before
the Law Commission produces its final report.(Boateng 2000, col 125WH). On
the other side, the reception from legal interest groups to the Law Commission
Consultation Paper was more lukewarm or even hostile. For example, Robert
Sayer, Law Society President, commented:
“So far, the people pushing for change to the double jeopardy rule have not come up with a workable system to protect the genuinely innocent. The rule should be changed only if adequate safeguards can be introduced to guarantee a fair re-trial for those people facing a second prosecution. Also allowing a second prosecution could become a charter for sloppy police work." (http://www.lawsociety.org.uk/dcs/fourth_tier.asp, 8 February 2000)
Yet, in fairness to the Law Commission, these concerns have been fully aired,
and the overall impact of its recommendations, if implemented, would in practice
be modest rather than radical. The police in evidence to the Home Affairs
Select Committee could point to only 35 murder cases where the file had been
closed following an acquittal (the implication being that the police firmly
believe no one other than the defendant was responsible for the death) (Home
Affairs Committee 2000, para 20), and there is no certainty that evidence
sufficient to satisfy the Law Commission’s proposed criteria will ever be
amassed. However, this modest impact is probably right in that the existing
rules relating to double jeopardy are “well-founded” (Home Affairs Committee
2000, para 64) and do by and large serve to ensure fairness between the state
and the accused. Furthermore, the disturbing features of the Stephen Lawrence
case, the subject of the Macpherson report, arose far more from failures
in evidence-gathering by the police rather than either the treatment of that
evidence by the courts or even the prosecution service than as a result of
any defect in the procedural rules. The Lawrence case should stand as a catalyst
for radical reform in several aspects of criminal justice, but the double
jeopardy rule is not amongst them.
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Footnote
1 In evidence to the Home Affairs Committee,
the police did not think there should be any such minimum; Victim Support
suggested that the exception should apply to all arrestable offences; Liberty,
while not supporting such a change, wanted any relaxation to be confined
to murder cases; the Criminal Bar Association felt three years was inconsistent
with the notion of “serious” (Home Affairs Committee, para 22).