THE LAW COMMISSION'S PROPOSALS
13. The Law Commission proposes that it should be possible
for the High Court to quash an acquittal on the grounds of new
evidence, subject to the following conditions:
|(a) if the defendant were convicted of the offence now alleged, the sentence would probably be of a specified minimum severity;|
(b) the new evidence makes the prosecution's case substantially stronger than it was at the first trial;
(c) there is a very high probability of the defendant being convicted at a retrial;
(d) the defendant has not previously been acquitted of the offence at a trial held by virtue of this exception to the double jeopardy rule;
(e) the new evidence could not, with due diligence, have been adduced at the first trial; and
(f) the court is satisfied that, in all the circumstances of the case, it is in the interests of justice to quash the acquittal.
THE LAW COMMISSION'S PROPOSALS
14. It may be significant that no such proposal has been made
before. The Royal Commission on Criminal Justice in 1993 did not
recommend any change in the double jeopardy rule, other than for
tainted acquittals, as described in paragraph 58 below.
The Society of Public Teachers of Law said that "the present
rules are arguably too absolute in favour of the defendant".
On the other hand the Criminal Bar Association told us:
"It is noteworthy that beyond the recommendations
of the Lawrence inquiry there has been no research or evidence
drawn on by the Commission to justify the change in the rule;
in other words they have not been able to assemble evidence that
has indicated that the present rule is either not working or is
working in an unjust manner. We do think that where you have a
rule that is really of constitutional importance and is present
in all sophisticated legal systems around the world and has been
for centuries, if that rule is going to be removed it has got
to be removed on the basis of the most convincing evidence, that
it is either not working or is working in a way contrary to the
interests of the community. We think that evidence is simply not
15. The procedure would therefore be:
16. The new procedure would not apply in all cases. Various
criteria have been proposed by the Law Commission. They cover
the nature of the offence and the evidence:
|seriousness of the offencewhether the proposed change should only apply to cases above a certain level of seriousness|
nature of the evidencewhether it would have been available at the first trial
significance of the evidencehow likely it would be to secure a convictionwhether the new evidence would make the difference.
17. How these criteria are defined will determine how many
cases would be affected by an exemption to the double jeopardy
rule. At one end of the scale, the criteria could be drawn so
narrowly that retrials would be ordered only in exceptional cases.
A narrow test might make an exception seem more acceptable. It
might also mean that the procedure was used only rarely and there
would still be apparently strong cases for retrial which did not
satisfy the tests. At the other end of the scale, the criteria
could be left fairly broad. This would mean cases where a retrial
was justified would not be thwarted by over-restrictive thresholds.
It could lead to more cases being resolved with the guilty punished.
It would also give the courts greater discretion in deciding whether
the interests of justice would be served by a retrial.
THE ARGUMENTS IN PRINCIPLE
18. The arguments in favour of relaxing the double jeopardy
- The guilty should be convicted"the whole point
of a criminal justice system is to bring criminals to justice"
- New evidence should be deployed to secure such a conviction"where
it is manifest to the public and to the victim, that there is
strong evidence now, that was not available once before, that
someone is, in fact, guilty who has been acquitted, ...[it] is
an affront to the notion of truth and justice".
- Scientific advances make it possible to bring forward evidence
not available at the original trial"modern techniques
of DNA analysis are allowing us to take a single cell and produce
evidence which is compelling to a far greater degree than it ever
used to be".
- There are a number of actual cases in which the real offender
could be brought to justice"there are at least 35
cases ... where further enquiry has largely terminated, someone
having been acquitted, on the basis that the likelihood is that
if it were possible for there to be a retrial that is the route
the enquiry would take".
- the law must be concerned to prevent miscarriages of justice
not just to the defendant but also to the victim who may be at
risk if an offender is wrongly acquitted - the victim has as much
need for finality as the accused
- in the case of murder, new evidence might allow the family
of the victim the opportunity to see brought to justice those
who may be convicted of the crime
- "the law is brought into disrepute by the knowledge that
someone who is manifestly guilty can evade conviction"
- "the law has to be organic, evolving over time to accommodate
the way society moves forward in its values and in its capabilities.
The law should be the servant of society not the master. As such
it has to be responsive and adaptable".
19. The arguments against changing the rule are:
- The prosecution authorities should assemble their best case
at the first trial"there is a burden on the state,
who have hugely more resources than any individual, when they
start the investigation to conduct it with due diligence and not
to put a person on trial until such time as they have gathered
in all the evidence that they competently and properly can"
- People acquitted of crimes should not live in distress at
the prospect of a further trial"it would cause needless
anxiety and insecurity to thousands of acquitted defendants"
- It would be very hard for a defendant to get a fair second
trial"there would be a real risk of the jury at the
retrial assuming that the new evidence must be reliable and that
the defendant must be guilty"
- a second opportunity to prosecute would encourage the police
to be less thorough in their initial investigation
- there could be fears that the police, unhappy at the defendant
being found not guilty, would unfairly pursue the person in order
to try to bring about a second trial.
Paper No 156 published in October 1999 and available on www.open.gov.uk/lawcomm/ Back
Stephen Lawrence Inquiry - Report of an Inquiry by Lord Macpherson
of Cluny (1999) Cm 4262. Back
'Beauty in the Bath' case and the murder of Dr Joan Francisco,
Appendix 1 p2 (DPP). Back
v Dunlop reported in The Times on 15 April 2000. Back
v US 355 US 184, 2 L ed 2nd
p199 at p20.1. Back
Connelly v DPP  AC 1254; Sambasivam v Public Prosecutor,
Federation of Malaysia  AC 458. Back
Report 1997-98 HC 258 para 129. Back
(Mr Cape). Back
submission to Law Commission part IV (not printed) Back
(Mr Trollope). Back
70 (ACPO). Back
80 (ACPO). Back
77 (ACPO). Back
Support response to Law Commission (not printed). Back
111 (ACPO). Back
9 p55 (Police Superintendents). Back
130 (Mr Trollope). Back
7 p45 (Liberty). Back
5 p42 para 11 (Law Society). Back
5 p42 para 8 (Law Society). Back
4 p40 para 6 c. (iv)) (Criminal Bar Association). Back