Retry the Acquitted
| Author | Alec Samuels |
| Published date | 01 October 1998 |
| Date | 01 October 1998 |
| DOI | http://doi.org/10.1177/0032258X9807100413 |
| Subject Matter | Article |
ALEC SAMUELS
Barrister, Justice of the Peace
RETRY THE ACQUITTED
In England, the acquitted defendant (D) cannot be retried for the same
offence. It has been suggested that this rule should be abrogated; the
arguments run along the following lines.
We Should Retry
The offence involved may be very serious, eg, murder, rape, gbh.
If
an
innocent man is wrongly convicted we accept without question that the
injustice to him must be rectified and the conviction quashed.
If
a guilty
man is wrongly acquitted we should accept without question that the
injustice to the victim and the public must be rectified and the man
retried.
If
D's conviction is quashed, he may be ordered to be retried; he
may have to face the ordeal of a second trial. Similarly, the acquitted 0
would have to face the ordeal of a second trial.
If
a sentence is thought to be unduly lenient the Attorney-General
may refer to the Court of Appeal which may, and does, increase the
sentence.
If
we can make the sentence worse, why not make the verdict
worse?
The acquittal may not have been on "the merits". The indictment
was defective and could not be rectified and no alternative verdict was
available. The prosecution counsel was incompetent and did not call
vital witnesses, was extremely poor in examination-in-chief, cross-
examination and re-examination. The prosecution witnesses lied or
conspired to pervert the course of justice, or were hostile. The
prosecution witnesses did not appear because of fear, but the Judge
nevertheless refused to allow their statements to be adduced in
evidence. The jury were intimidated.
The evidence of
02,
the co-accused, "sank" 0 who was convicted
whilst
02
was acquitted. Now it appears that
02
committed the crime,
not 0 after all. Fresh evidence has now materialized which was not
available at the trial and it shows conclusively or overwhelmingly or
cogently that in fact 0 did do it and was wrongly acquitted.
Subsequent to the acquittal, 0 confesses to the crime, giving all the
details, convincingly and conclusively. Retrial is available in many
criminal justice systems, subject tosafeguards, and is not contrary to the
European Convention on Human Rights. In England, if so desired it
would be possible to limit retrial to certain specified offences only, and
to require the consent of the Attorney-General or Director of Public
Prosecutions, or a High Court Judge.
October 1998 The Police Journal 373
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