Double Jeopardy—Double Trouble
| Author | Edwin Shorts,Claire de Than |
| Published date | 01 December 2000 |
| Date | 01 December 2000 |
| DOI | http://doi.org/10.1177/002201830006400610 |
Double
Jeopardy-Double
Trouble
Claire
de
Than
and
Edwin
Shorts*
if
the
Crown were to be allowed to prosecute as
many
times as it
wanted to do on
the
same factsthere would be a grave danger of abuse
and
of injustice to defendants There is
another
factor to be considered,
and
that is
the
courts' duty to conduct their proceedings so as to command
the respect
and
confidence of
the
public
...
Human
judgment
is not
infallible.Two judges or two juries may reach different conclusions on
the
same evidence, andit would notbe possible to say
that
one
is nearer
than
the
other
to
the
correct
...
every systemof justice is
bound
to insist
upon
thefinality of thejudgment arrived at by a
due
process of law. I
Both we and others .
..
have considered
...
whether
the
law which
absolutely protects those who have been acquitted from
any
further prose-
cution for
the
same oraclosely alliedoffenceshould prevail. If, even at this
late stage, freshandviable evidence should emerge against
any
of
the
three
suspects
who
were acquitted, they couldnot be tried againhowever strong
the evidence might be. We simplyindicate that perhaps in modern condi-
tions such absolute protection may sometimes lead to injustice. Full
and
appropriate safeguards would be essential. Fresh trials after acquittal would
be exceptional
...
2
The
two
quotes
above
serve
to
illustrate
that
the
complex
and
ill-defined
double
jeopardy
rule
is
subject
to
many,
often
conflicting
shades
of
interpretation.
Much
depends
upon
the
philosophical
or
political
view-
point
taken.
In fact
neither
of
the
statements
accurately
portrays
the
current
position
of
the
rule
in English
criminal
law.
The
many
existing
exceptions
and
qualifications to
the
rules
ensure
that
there
is
no
'abso-
lute
protection'
against
a
further
prosecution
for a
person
once
con-
victed
or
acquitted
of a
criminal
offence;
and
the
potential
for
injustice
will
exist
whether
the
double
jeopardy
rules
continue
as
present
or
face
substantial
amendment.
There
is a
danger
of
knee-jerk
reactions
causing
an
unforeseen
domino
effect
throughout
criminal
justice.
This article
will
analyse
the
existing
legal
rules
against
double
jeopardy
and
their
historical basis. In
the
light of
the
recent
Law
Commission
paper's
acceptance
of
almost
all of
the
existing
rules
and
their
proposed
exten-
sion.? it is
time
to
consider
exactly
what
the
present
law
is
and
to assess
the
civil liberties
impact
of
any
such
reform.
*Claire de
Than
(dethanc@wmin.ac.uk) is a Senior Lecturer inLaw at
the
University
of Westminster. Edwin Shorts is a barrister. Together
they
are the
authors
of Civil
Liberties:
Legal
Principles
ofIndividual
Freedom
(Sweet
and
Maxwell: London, 1998),
and
various
other
books
and
articlesoncivil liberties
and
human
rights.
1
Connelly
v
DPP
[19641 AC 1254 at1353,per Lord Devlin.
2The Stephen
Lawrence
Inquiry: Reportof anInquiry bySir William
MacPherson
of Cluny
(hereafter MacPherson Report), Cm 4262-1 (1999)para. 7.46.
3 Law Commission Consultation Paper No.156, Double
Jeopardy
(1999). Although
widely understood
to
propose the removal of
the
so-called double jeopardy
'loophole', in fact theLaw Commission did
not
recommend
this. Rather
the
proposals would broadly codify the existing law, slightly
extend
its protection
and
simultaneously provide aprocedure by
which
a freshtrialcould be
commenced
in
exceptional cases.
624
Double Jeopardy-Double Trouble
The long-established principle
that
the
double jeopardy rule is some
kind of 'legal sacred cow' is a misapprehension. In reality, in law no such
species exists. These so-called sacred cows of
our
legal system have long
since
been
buried or
have
undergone, in
many
instances,
an
unrecogni-
sable metamorphosis, for example, right of silence, loss of legal aid,
threat
to
the
right of trial by
jury
and
to
the
autrefois
plea itself. The
underlying rationale
behind
the
twin
rules of
autrefois
acquit
and
autrefois
convia,
'nerno debet bis
puniri
pro
uno
delicto'
-no
man
shall be placed
in perilof legal penalties
more
than
once
upon
the
same accusatiorrt-s-
stems from
numerous
public policy
and
public interest considerations.
Amongst these include
the
proposition
that
once
the
accused has
been
found guilty or
innocent
of
an
offence he should
not
have
to again go
through
the
oppressive ordeal of trial, orlive
under
the
continual
threat
of trial for
the
same offence. Apart from
the
resulting psychological
stress
and
physical torment,
other
important
residual
harmful
effects are
evident if such arule
were
not
present. In particular,
the
on-going risk of
damage to one's career
and
home
life,
the
financial
harm
and
social
stigma
which
may
result-if
there
was
no
end
to
the
possible repetition
of a case ad infinitum.
Other
arguments
put
forward for maintaining this
rule include
the
general
notion
that
the
public
should
have complete
confidence
and
trust in
the
administration of justice. One
method
of
achieving this confidence is
the
avoidance of
the
creation
and
applica-
tion of contradictory decisions. In
the
absence of
the
autrefois
safeguards
there
is a realpossibility
that
the
public
might
view judicial decisions
with
ahigh degree of suspicion since verdicts
would
not
finally dispose
of
the
matter. This danger
would
remain
in spite of
the
discovery of
new
evidence incriminating
the
accused or a later admission of guilt by a
person already acquitted. Allied to
the
above discussion is
the
danger
that
if
the
prosecution
were
permitted to repeatedly bring proceedings
against
an
accused for
the
same offence covering
the
same matter,
then
eventually he might be convicted of a crime he did
not
commit. In recent
times it has
been
forcibly suggested
that
if
the
autrefois
rule did
not
exist
the
police might
not
investigate acrime fully,
knowing
that
they
would
be able to geta 'second bite of
the
cherry'." Such
an
argument
may
have
some foundation. However, in light of
the
MacPherson Report concern-
ing
the
Stephen
Lawrence case
and
the
Freedom of Information Bill
before Parliament at
the
time of writing, it is
hoped
that
some of these
fears
may
be allayed.
However, whilst
the
rule has
much
to
recommend
it,
there
are
nevertheless
many
legally recognised exceptions already in existence
which
permit
the
courts to re-try individuals
and
which
are
not
gen-
erally considered to be
either
oppressive or prejudicial. Examples
include 'tainted acquittals" or mistrials or
where
the
proceedings are
considered ultra vires' or defective, or
where
the
case involves a cross-
4
Broom's
Legal
Maxims,
2nd
edn
(1982)
257-8.
5Similar
concerns
apply to
the
CPS bringing aprosecution.
6 See Criminal Procedure
and
Investigations Act 1996, ss
54-57.
7 See Kent
Justices,
ex p.
Machin
[1952]2 QB 355.
625
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