Prosecutorial Policy, Double Jeopardy and the Public Interest
| Published date | 01 March 2000 |
| Author | Gavin Dingwall |
| Date | 01 March 2000 |
| DOI | http://doi.org/10.1111/1468-2230.00263 |
J, from addressing the key issues as to legal causation that have occupied much of
this note. Nevertheless, the case undoubtedly deserves attention for the
forcefulness and clarity of the arguments that may be found in all five judgments,
as well as the judges’ preparedness to grapple head on with fundamental causal
principles. McHugh J’s dissenting opinion, in particular, provides a masterly
exposition of a notoriously difficult area of law. Though at first glance the facts of
the case appear to concern medical negligence issues of a relatively routine order,
the judgment may be regarded as contributing significantly to the common law’s
understanding of tort law in general.
Prosecutorial Policy, Double Jeopardy and the Public
Interest
Gavin Dingwall*
Anglo-American jurisprudence has a considerable history of protecting individuals
from the so-called double jeopardy associated with being prosecuted again for
matters that they have already either been convicted or acquitted of by a competent
court.1Andrew Choo identifies two principal reasons why this type of protection is
necessary: firstly, it helps provide protection against wrongful convictions and,
secondly, it helps preserve the moral integrity of the criminal justice process.2
Choo’s first rationale, which he classifies as intrinsic rather than extrinsic in
character, is based on the notion that a miscarriage of justice is more likely
following a subsequent prosecution because innocent individuals may lack the
necessary resources or stamina to defend themselves successfully on more than one
occasion. The defendant’s task would also be more difficult the second time
around as the prosecution would have the benefit of knowing the full defence case
prior to the subsequent trial, effectively making it easier for the prosecution to
discharge their traditional burden of proof.3His latter rationale recognises that the
* Department of Law, University of Wales, Aberystwyth. I wish to thank my colleagues Gwyn Jones, Neil
Kibble and Diane Rowland for discussing some of the issues raised in this paper and the anonymous MLR
reviewers for their valuable comments. The usual disclaimer applies.
1 For historical background see J. Hunter ‘The Development of the Rule against Double Jeopardy’
(1984) 5 Journal of Legal History 3 and J.A. Sigler ‘A History of Double Jeopardy’ (1963) 7
American Journal of Legal History 283.
2 A.L.-T. Choo, Abuse of Process and Judicial Stays of Criminal Proceedings (Oxford: Clarendon
Press, 1993) 17.
3ibid 17. The defence now have a duty, after primary prosecution disclosure has taken place and the
case is committed to the Crown Court, to provide the prosecutor with a defence statement. Section
5(6) of the Criminal Procedure and Investigations Act 1996 states that this comprises a written
statement (a) setting out in general terms the nature of the accused’s defence, (b) indicating the
matters on which he takes issue with the prosecution, and (c) setting out, in the case of each such
matter, the reason why he takes issue with the prosecution. For background to these provisions see R.
Leng and R.D. Taylor, Blackstone’s Guide to the Criminal Procedure and Investigations Act 1996
(London: Blackstone Press, 1996) 7–33. According to the Solicitor-General during the Parliamentary
debate on the section, there was no intention that the defence had to provide details of the evidence
that they would rely on to support their objections to the prosecution case, see Hansard, House of
Commons Committee, 16 May 1996, cols 66–69. Clearly such a defence statement would not be as
beneficial to the prosecution as witnessing the evidence that was adduced and the line of questioning
adopted by defence counsel at an earlier trial.
The Modern Law Review [Vol. 63
268 ßThe Modern Law Review Limited 2000
To continue reading
Request your trial