Review: Double Jeopardy
| Published date | 01 October 1970 |
| DOI | 10.1177/002201837003400409 |
| Date | 01 October 1970 |
| Subject Matter | Review |
Review
DOUBLE
JEOPARDY
by
Martin
L.
Friedland
of
the
Faculty
of
Law,
University of
Toronto;
Clarendon
Press, Oxford. 90S.net.
This
is the first comprehensive analysis to be published in this
country
of
the
well-known principle,
common
in general outline to all civilised
societies,
that
no
one
shall be
put
in peril
more
than
once for the same
offence.
The
author
is
primarily
concerned
with
the
development
and
application
of
this principle by the English courts,
but
he includes useful
comparisons
with
the parallel development in
Canada
and
in the
United
States. Although this book
may
make
the
greater
appeal
to academic
lawyers
there
is
much
of fascinating interest
and
practical value
both
for
the
judiciary
and
the
legal profession.
The
problems discussed
are
as
likely to arise in a comparatively trivial case before alocal
bench
as
in
the
House of Lords.
In
reference to the
latter
tribunal
Mr.
Friedland
has a useful discussion
of
Connelly
v.
Director
if
Public
Prosecutions
(1964 A.C. 1254)
in
which he
points
out
that
while this case is the leading
authority
on "issue estoppel"
in criminal law,
more
importance
should be
attached
to the observations
of
Lord
Devlin
and
Lord
Pearce
that
the courts have
inherent
power
to
direct
an
acquittal
wherever it
appears
that
the
accused is being
put
in
peril for
an
offence which was
included
in a charge for which he has stood
trial, even
if
the formal
plea
of
autrefois convict or
acquit
cannot
strictly
be relied
upon.
In
this general context
attention
is usefully
drawn
to
the
decision
of
the
Privy Council
in
Subavisam
o,
Federation
if
Malaya (1950 A.C.
458) where it was held
that
it
is
not
permissible to
introduce
evidence
tending
to show
that
the accused was guilty
of
an
offence of which he has
been
acquitted.
In
that
case
the
accused
had
been
acquitted
of
the unlawful
possession of
ammunition.
He
was subsequently
charged
with
the
unlaw-
ful possession
of
afirearm.
The
prosecutor
put
in
evidence on this
latter
charge
an
alleged confession by the accused
of
the former offence
of
which
he
had
been
acquitted.
The
chapter
dealing
with
courts
martial
is
of
considerable interest.
The
reviewer
read
with
some surprise,
which
some readers
may
share,
that
by s.25 of
the
Armed
Forces
Act
1966 a conviction or
an
acquittal
by a
court
martial
of
a civil offence is a
bar
to a prosectuion for the
same
offence in a civil court.
This
has also
been
the
law
in respect of
naval
courts
martial
since the coming
into
force
of
the
Naval
Discipline Act
1957.
There
has
been
awidely
held
opinion
that
atrial by
court
martial
did
not
oust the jurisdiction of a civil
court
for a civil offence,
though
any
penalty
imposed by a
court
martial
should be
taken
into
account.
This
certainly was
the
impression
of
Parliament
at
the time
when
it
enacted
287
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