Double Jeopardy: One Idea and Two Myths from the Criminal Justice Bill 2002
| Author | Ben Fitzpatrick |
| Published date | 01 April 2003 |
| Date | 01 April 2003 |
| DOI | http://doi.org/10.1177/002201830306700208 |
| Subject Matter | Article |
Double
Jeopardy:
One
Idea
and
TWo
Myths
from
the
Criminal
Justice
Bill 2002
Ben
Fitzpatrick*
Abstract
In
November 2002, the government introduced the Criminal
Justice Bill 2002 to Parliament. The Bill is far-reaching, covering issues
from the pre-trial process to sentencing. This article focuses on one of
the higher profile, and, arguably, more controversial proposals in the
Bill, the relaxation of the rule against double jeopardy. The proposal is
described and analysed.
It
is also suggested that the Billand the proposal
are underpinned by two criminal justice policy
positions-(
1) that de-
fendants are unfairly advantaged in the criminal process; and (2) that
the best way to enhance victims' rights is to diminish those of defend-
ants. It is suggested that these positions are misguided, and that they
constitute powerful and persistent criminal justice myths.
On 21
November
2002,
the
Criminal Justice Bill1
was
introduced
in
the
House of Commons.
For
its
content,
the
Bill
draws
on
a
number
of
key policy
documents,
including
the
Auld Review."
the
Halliday
Report
on
sentencing.'
and
the
White Paper,
Justice
forAll.4At
the
time
of writing,
the
Bill is at
the
Committee
stage. The Bill is wide-reaching
and
asizeable
contribution
to
the
criminal justice literature,
running
to
over
300 pages. Its coverage includes
proposed
amendments
to
the
Police
and
Criminal Evidence Act;5 bail:" conditional cautions." charg-
ing;8 disclosure:" allocation
and
transfer of offences.'?
jury
trials.'! live
*Lecturer in Law, University of Leeds.
1 See www.parliament.the-stationery-office.co.uk/pa/cm200203/cmbills l
008/2003008.htm
(accessed 7 February 2003).
2 A Review of the Criminal Courts of Ensland and Wales (2001) available at
www.criminal-courts-review.org.uk/ (accessed 7 February 2003).
3Makins Punishments Work: Review
of
the Sentendns Framework for Ensland and Wales
(2001), available at www.homeoffice.gov.uk/cpg/halliday.htm (accessed 7
February 2003).
4 Home Office, Lord Chancellor's Department
and
Office of
the
Attorney-General.
Justicefor All, Cm 5563 (2002). See also B. Fitzpatrick, 'TInkering or
Transformation? Proposals
and
Principles in
the
White Paper, •Justice for All'"
[2002] 5 Web Journal of Current Legallssues at
http://webjcli.ncl.ac.uk/2002/issue5/
fitzpatrick5.html (accessed 5 February 2003).
5 Part 1
and
Sched. 1.
6 Part 2.
7 Part 3.
8 Part 4
and
Sched. 2.
9 Part 5.
10 Part 6
and
Sched. 3.
11 Part 7.
149
TheJournal of
Criminal
Law
links.'? prosecution
appeals."
changes to
the
rules of evidencer'" sen-
tencing.'"
It
is
the
purpose of this article to discuss
one
of
the
higher
profile issues considered in
the
Bill-the
proposed relaxation of
the
double jeopardy prindple'<c-and to explore
two
contentious ideas
which appear to
underpin
the
Bill-the
nature
of defendants' rights;
and
the
relationship
between
the
rights of defendants
and
those of victims of
crime.
It
is my contention
that
these underpinning ideas are rhetorically
powerful,
and
consequently integral
to
the
marketing of
the
Bill,
but
that
they
are also misguided
and
constitute significant
and
persistent
criminal justice myths.
Idea: relaxing
the
double
jeopardy
principle
On
one
view,
the
double jeopardy principle has
been
on
areform
and
relaxation trajectory for
sometime.
Broadly speaking,
the
principle has
two aspects. First, deriving from
the
pleas in
bar
of jurisdiction of
autrefois
acquit
and
autrefois
convict,
defendants
cannot
be prosecuted a
second time in respect of offences of which
they
have already
been
convicted or acquitted. Secondly,
the
so-called
Connelly
principle'? ar-
ticulates acourt's abuse of process jurisdiction in cases
where
the
prosecution
are
in substance pursuing adefendant in respect of an
offence of which he or she has already
been
acquitted,
even
though
the
charge in
the
second prosecution
may
be formally different.
There are, it seems, two principal drivers in double jeopardy reform.
The first, political. driver was
the
MacPherson Report into
the
murder
of
Stephen Lawrence.IS
It
will be recalled
that
that
case involved aprivate
prosecution, which was initiated,
and
which
subsequently collapsed,
after it
had
been
considered by
the
CPS
that
there
was insufficient
evidence
to
prosecute
the
suspects successfully. The second, law
en-
forcement driver, is
the
development of DNA identification technology
and
cold-case review techniques, which enable more sophisticated
forensic evaluation of bodily sample evidence
than
might have
been
available at
the
time it was gathered.'? On the MacPherson recom-
mendation, it is, in
one
sense
rather
ironic
that
the
Stephen Lawrence
12 Part 8.
13 Part 9.
14 Part
II.
Specifically,
the
Bill addresses
the
admissibility of evidence of bad
character
and
of hearsay evidence.
15 Part 12.
16 Part 10.
17 Connelly vDPP [1964] AC 1254.
18 The Stephen Lawrence
Inquiry-Report
of
an Inquiry by Sir William Macpherson
of
Cluny, Cm 4262 (1999) Recommendation 38.
19 Indeed, it seems
that
statutory reform
and
interpretation is developing in a
congruent
direction. The increased utility of DNA evidence has
been
accompanied
by reform
and
interpretation of
the
relevant provisions of
the
Police
and
Criminal
Evidence Act 1984 (PACE), in a
manner
such as to
enhance
powers of law
enforcement
to
retain DNA samples (see PACE,s. 64, as
amended
by
the
Criminal
Justice
and
Police Act 2001, s. 82; Attorney-General's Reference
(No.3
of
1999) [2001]
2 AC 91; R (on the application of S) vChief Constable
of
South Yorkshire [2002] EWCA
Civ 1275).
150
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