Double Jeopardy Law Reform: A Criminal Justice Commentary
| Date | 01 May 2002 |
| Author | Paul Roberts |
| Published date | 01 May 2002 |
| DOI | http://doi.org/10.1111/1468-2230.00386 |
REPORTS
Double Jeopardy Law Reform: A Criminal Justice
Commentary
Paul Roberts*
The Law Commission’s recommendations
The Law Commission was asked to reconsider the law relating to double jeopardy
by the Home Secretary, pursuant to a recommendation of the Macpherson Inquiry
into the murder of Stephen Lawrence.1Though it was widely reported in the
popular media that Macpherson advocated ‘a change in the law’,2the relevant
recommendation was actually only a cautiously-worded request for re-
examination.3Working quickly from receipt of the Home Secretary’s reference
in July 1999, the Commission finalised a consultation paper, containing pro-
visional proposals for reform, in little more than two months. LCCP No 156 was
published in October 1999, with responses due by 31 January 2000.4This initial
work was followed up in a separate inquiry by the House of Commons’ Select
Committee on Home Affairs (HAC), to which the Law Commission contributed.
The Select Committee’s Report,5which also advocated reform but in somewhat
narrower terms than LCCP No 156, was published in June 2000 and debated in the
House of Commons a few months later in October.6This spate of reform activity
culminated in a third set of proposals set out in the Law Commission’s final Report
on the subject,7which was hurried through to publication in order to feed into Lord
ßThe Modern Law Review Limited 2002 (MLR 65:3, May). Published by Blackwell Publishers,
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* University of Nottingham, School of Law. Andrew Ashworth, Ian Dennis, Mike Redmayne, Andrew
Simester, Sir John Smith and Adrian Zuckerman read and commented on earlier versions of this
commentary and made many generous contributions towards its improvement, for which I am very
grateful. I have also profited from several discussions with Richard Percival, at the Law Commission. The
views expressed, and any remaining errors, are mine.
1
Sir William Macpherson of Cluny, The Stephen Lawrence Inquiry – Report. Cm.4262-I (London: TSO,
February 1999), Recommendation 38: ‘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 Most recently, R. Ford, ‘Murder Reform ‘Gives Police Two Bites of Cherry’’, The Times 21 June
2001 (‘The ancient ‘double jeopardy’ rule, which prevents someone being tried twice for the same
offence, is to be scrapped in murder cases. . .. The move, first recommended in the Macpherson
inquiry and backed by the Law Commission, is expected to be retrospective’). This solecism has been
repeated so often, and by people who ought to know better, that Sir William’s report has effectively
been re-written by its legacy.
3 ‘We simply indicate that perhaps in modern conditions .. . 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.’ n 1, above, para 7.46.
4 LCCP No 156, Double Jeopardy (London: TSO, 1999). See I. Dennis, ‘Rethinking Double Jeopardy:
Justice and Finality in Criminal Process,’ [2000] Crim LR 933; A. James, N. Taylor and C. Walker,
‘The Reform of Double Jeopardy,’ [2000] 5 Web JCLI.
5 Home Affairs Committee, Third Report: The Double Jeopardy Rule. HC Session 1999–2000, 17 May
2000.
6 HC Debs cols 115WH-154WH, 26 October 2000.
7 Law Com No 267, Double Jeopardy and Prosecution Appeals. Cm 5048 (London: TSO, 2001).
Recent Law Commission publications are available at: .
Justice Auld’s major review of criminal procedure.8A subsequent Home Office
policy document,9followed up by a manifesto commitment and the Queen’s
speech opening Parliament on 20 June 2001, placed double jeopardy law reform
firmly on the government’s policy agenda. Most recently, the Auld Review has lent
its authority to the case for reform.10
Law Com No 267 rolled two distinct but related consultation exercises11 into a
single package of recommendations for major criminal procedure reform. The
package has three principal components:
1. A new exception to the double jeopardy prohibition to permit murder cases to
be re-tried where compelling new evidence comes to light after an acquittal.12
2. An extension of the ‘tainted acquittal’ exception to the double jeopardy
prohibition created by the Criminal Procedure and Investigations Act 1996, to
include a greater range of qualifying offences, which, moreover, would no
longer have to be prosecuted to conviction in separate proceedings in order to
trigger the exception.13
3. New prosecution rights of appeal against judges’ ‘terminating rulings’ (that is,
rulings which literally or effectively conclude proceedings) made either: (a) at
a preparatory hearing; or (b) at trial, up to the point at which the prosecution
closes its case, but also extending to a judge’s ruling on a submission of no
case to answer founded on a point of law (ie a ruling under the first limb of
Galbraith, that there is no evidence to prove a material element of the offence
charged).14
The proposed extension of the prosecution’s appeal rights raises significant issues
of principle and many practical considerations affecting the conduct of criminal
litigation, but these matters will not be explored here.15 In the interests of more
detailed elaboration and sharper focus, the following commentary is confined to
Law Com No 267’s treatment of double jeopardy, which encompasses the most
far-reaching, and controversial, aspects of the Commission’s reform package.
It is agreed on all sides that only a tiny number of cases would be directly
affected by the Commission’s recommendations on double jeopardy. One might
therefore reasonably question how the reform package could be described as
‘major’ and ‘far-reaching’ – which are my adjectives, not the Commission’s. The
answer, in a nutshell, is that rival approaches to reforming the double jeopardy rule
reflect broader value choices and priorities which go to the heart of a nation’s
8 Which also explains the absence of a draft Bill from this Report. Law Com No 267, para 1.22.
9Criminal Justice: The Way Ahead. Cm 5074 (London: TSO, 2001), para 3.55. I. Dennis [2001] Crim
LR 261 observes that ‘[t]he Paper is clearly the New Labour manifesto for criminal justice for the
next decade’.
10 Lord Justice Auld, Review of the Criminal Courts of England and Wales: Report (London: TSO,
2001), 627–634.
11 LCCP No 156, Double Jeopardy (London: TSO, 1999); LCCP No 158, Prosecution Appeals Against
Judges’ Rulings (London: TSO, 2000).
12 Law Com No 267, Recommendations 1–9.
13 ibid Part V and Recommendations 10–18.
14 ibid Part VII and Recommendations 25–36.
15 Respondents to LCCP No 158 differed markedly in their assessments of how often new prosecution
appeal rights would be invoked. Ten respondents, including Lord Woolf CJ, predicted that appeals
against terminating rulings would not be numerous, though they might conceivably exceed the current
rate of Attorney General’s References. Against this, seven or possibly eight respondents expected
frequent appeals, with ACPO urging that excessive caution should not be allowed to emasculate a
much-needed reform. See, generally, R. Pattenden, ‘Prosecution Appeals Against Judges’ Rulings,’
[2000] Crim LR 971.
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aspirations for criminal justice. The remainder of this commentary can be thought
of as a longer, and hopefully more illuminating, answer to the same question.
However, the argument may be briefly summarised in anticipation.
One can infer a great deal about a political community’s conception of criminal
justice, and gauge the strength of its commitment to officially sanctioned ideals,
from the fortunes of key criminal process institutions, procedures and doctrines.
Both conception and commitment can sometimes be seen to undergo material, and
potentially radical, realignment in the crucible of procedural reform. If a political
community is serious about promoting a tradition of criminal justice worthy of
preservation, it must come to appreciate, in order effectively to safeguard, its
normative and institutional legacy. An incomplete or unbalanced audit, narrowly
focused on the benefits to be secured, could yield ‘reforms’ that in time – perhaps
when it is already too late to turn back the clock – a political community may have
cause to regret. Double jeopardy reform is a case in point, since the rationale and
normative underpinnings of the double jeopardy prohibition are little discussed,
16
at
least in England and Wales,
17
and the development and progress of current proposals
serve to highlight neglected features of criminal procedure reform more generally.
The unprecedented scrutiny under which double jeopardy law has been placed,
first by Macpherson and then by the Law Commission, the Home Affairs
Committee and Lord Justice Auld, has at the very least served to draw attention to
the importance of an all-but forgotten topic. LCCP No 156 exemplified the best
features of recent Law Commission consultation documents in the field of criminal
evidence and procedure.18 It helpfully summarised existing law,19 synthesised
underlying principles and rationales with more technical legal analysis, and had a
keen eye to Convention-compliance in the post-Human Rights Act 1998 era. Yet
LCCP No 156’s provisional proposals for relaxing the prohibition on double
jeopardy rested on flawed arguments that failed to substantiate the case for reform,
as the Commission itself later conceded in its subsequent Report. Law Com No
267 makes numerous adjustments to LCCP No 156’s original argument and
proposals, often explicitly in response to comments, questions and objections
received on consultation. The Commission’s willingness to revise its initial
approach speaks volumes for Commissioners’ commitment to the consultation
process, and underscores the wisdom of road-testing provisional proposals before
final recommendations are formulated. One revision is particularly notable.
16 Any perusal of the leading textbooks would confirm that the topic is barely touched upon in university
Evidence courses.
17 Compare a leading work on US criminal evidence and procedure which, as well as discussing classic
evidentiary topics such as the privilege against self-incrimination and the exclusion of unlawfully
obtained evidence, devotes a substantial 40 page chapter to double jeopardy law: J. Dressler,
Understanding Criminal Procedure (New York: Matthew Bender, 2nd edn 1997).
18
Also see, for example, LCCP No 157, Criminal Law: Bail and the Human Rights Act 1998 (TSO, 1999);
Law Com No 255, Consents to Prosecution. HC 1085 (London: TSO, 1998); Law Com No 245,
Evidence in Criminal Proceedings: Hearsay and Related Topics. Cm.3670 (London: TSO, 1997), and
commentaries by Tapper [1997] Crim LR 771 and Jackson (1998) 2 Evidence & Proof 166; LCCP No
141, Evidence in Criminal Proceedings: Previous Misconduct of A Defendant (London: HMSO, 1996),
and commentaries by Roberts [1997] Crim LR 75 and McEwan [1997] Crim LR 93, Law Com No 273,
Evidence of Bad Characters in Criminal Proceedings. Cm. 5257 (London: TSO, 2001).
19 Part VIII’s discussion of the Sambasivam rule against collateral attacks on acquittals merits special
mention, though now overtaken by Z[2000] 3 WLR 117, HL. See P. Roberts, ‘Acquitted Misconduct
Evidence and Double Jeopardy Principles, From Sambasivam to Z,’ [2000] Crim LR 952, and other
commentaries by Birch [2001] Crim LR 222, Munday [2000] CLJ 468, Tapper (2001) 117 LQR 1,
and Mirfield (2001) 117 LQR 194. Commentators have focused on different aspects of the Zdecision
and, partly in consequence, evaluations of its merits diverge.
May 2002] Double Jeopardy Law Reform
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