Select Committee on Home Affairs Third Report


THIRD REPORT

The Home Affairs Committee has agreed to the following Report:—

THE DOUBLE JEOPARDY RULE

INTRODUCTION

1.  Should someone who has been acquitted of a serious crime be tried again if compelling new evidence becomes available? That question is posed by the Law Commission's Consultation Paper on double jeopardy.[9] It has been a long-standing principle of common law that no one should be tried a second time after being acquitted. But it has also been a basic objective of the criminal law that the guilty should be convicted. Recent scientific advances have made it possible to identify offenders long after a crime was committed. The Law Commission has suggested a relaxation of the double jeopardy rule in certain narrow circumstances. We have looked at whether such a change can be justified.

2.  The proposal stems from recommendation 38 of the Macpherson Report on the Stephen Lawrence Inquiry.[10] In that case, a private prosecution had been brought unsuccessfully against youths accused of the murder. The prosecution failed because the judge ruled that the identification evidence of the prosecution's main witness was too unreliable to be admitted. One of the points considered in the inquiry was the impossibility of bringing a fresh prosecution against those who were alleged to be responsible for Stephen Lawrence's murder but had been acquitted of it. Macpherson recommended:

    That consideration should be given to the Court of Appeal being given power to permit prosecution after acquittal where fresh and viable evidence is presented.

3.  The most obvious example of how such fresh and viable evidence might be used is the results of scientific advances in DNA testing. For instance, blood samples taken at a murder scene in the early 1980s might not have produced sufficient identification evidence at that time. The prime suspect may have been prosecuted on the basis of other evidence. If the prosecution failed to satisfy the jury that the defendant was guilty beyond reasonable doubt, the defendant would have been acquitted and left the court a free man. A decade later, advances in DNA testing could enable the original blood samples to be analysed and show with near certainty that the acquitted person had been at the crime scene. There have also been cases where the prime suspect was not prosecuted at the time through lack of evidence, but was convicted years later after scientific advances made the original evidence more compelling.[11] In a recent case a man twice tried and cleared in 1991 of killing a pizza delivery woman in 1989 was eventually jailed for perjury after he admitted that he had lied in court when he denied murder.[12] There have also been at least seven press reports in the last two years of other people who, having once been acquitted of a serious offence, have subsequently confessed their guilt.

4.  On the other side of the coin, someone convicted of a criminal offence can always cite new evidence as grounds for appeal or review of his conviction by the Criminal Cases Review Commission. Thus the concept of fresh evidence is well-established in the criminal justice system. This would not be affected by the proposed relaxation of the double jeopardy rule.

THE DOUBLE JEOPARDY RULE

5.  The double jeopardy rule is found in Roman law, and in the common law since the 12th century. A classic modern statement of this principle is that of Black J, in the Supreme Court of the United States:

6.  The effect of the rule is that in the event of someone being prosecuted a second time for the same offence the defendant can claim that he has already been acquitted of it (autrefois acquit) and the court will not allow the case to proceed. In practice such second prosecutions are not launched and so do not reach court. The few legal cases based on this have turned on whether the earlier trial was in fact for the same offence and on the same facts.

CONDUCT OF THE INQUIRY

7.  The key questions posed in this inquiry have been:

Does the public interest in convicting the guilty outweigh the long-standing principle of double jeopardy?

Does the availability of new evidence based on scientific advance create a new situation in which the old principle ought to be re-examined?

Are the proposed safeguards set at such a level that the new procedure would be used only in exceptional cases?

If the rule were changed, is it likely in practice that fair second trials would be held and that people would be convicted?

KEY QUESTIONS


8.  We have taken written evidence from the organisations and individuals listed on page xxviii. Before taking evidence we had a useful informal meeting with the Law Commission team responsible for the proposals in the Consultation Paper. We then took oral evidence from those who supported the proposals in principle, and those who opposed them. We are grateful to all those who gave oral and written evidence and informal advice. Many of those organisations will be commenting directly to the Law Commission on their proposals. Our aim has been to complement, not duplicate, the Law Commission's consultation process.

9.  The central proposal—that there should be a relaxation of the double jeopardy rule under certain conditions—is accompanied by two related groups of proposals. The first, covered in the consultation paper, comprises legal points such as extending the tainted acquittals procedure and the application of current case law.[14] The second, raised since the consultation paper was published, is whether the prosecution should be able to appeal against certain decisions of judges which lead to acquittals.

10.  Although we have heard evidence on the more detailed legal ramifications of changes to the double jeopardy rule, we probably have little of value to add to what the Law Commission is told on these matters by more expert sources. On the other hand, the possibility of prosecution appeals against the procedural decisions of judges in criminal cases does raise issues on which a parliamentary committee may have a useful opinion.

11.  In this report we have therefore concentrated on the main issue of whether the double jeopardy rule should be relaxed. We have also looked at the proposals on prosecution appeals to see if there are additional ways of ensuring that those who commit offences are properly convicted. We have not produced detailed comments on the other proposals in the consultation paper.

12.  We looked at the double jeopardy rule in relation to police disciplinary procedures in 1997-98.[15] Our report endorsed the policy that police officers could be subject to disciplinary proceedings following acquittal on a criminal charge for the same offence. It appears that this policy, although contained in the Police and Magistrates Court Act 1994, has not been brought into effect. The new Law Commission proposals relate only to double jeopardy in criminal cases and do not touch on disciplinary proceedings.

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.[16] The Society of Public Teachers of Law said that "the present rules are arguably too absolute in favour of the defendant".[17] 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 there".[18]

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 offence—whether the proposed change should only apply to cases above a certain level of seriousness

nature of the evidence—whether it would have been available at the first trial

significance of the evidence—how likely it would be to secure a conviction—whether the new evidence would make the difference.

TESTS FOR RELAXING DOUBLE JEOPARDY RULE


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 rule are:

  • 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".[20]

  • 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".[21]

  • 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".[22]

  • 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[23]

  • 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"[24]

  • "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".[25]

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"[26]

  • 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"[27]

  • 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"[28]

  • a second opportunity to prosecute would encourage the police to be less thorough in their initial investigation[29]

  • 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.[30]



9  Consultation Paper No 156 published in October 1999 and available on www.open.gov.uk/lawcomm/ Back

10  The Stephen Lawrence Inquiry - Report of an Inquiry by Lord Macpherson of Cluny (1999) Cm 4262. Back

11  The 'Beauty in the Bath' case and the murder of Dr Joan Francisco, Appendix 1 p2 (DPP). Back

12  R v Dunlop reported in The Times on 15 April 2000. Back

13  Green v US 355 US 184, 2 L ed 2nd p199 at p20.1. Back

14  E.g Connelly v DPP [1964] AC 1254; Sambasivam v Public Prosecutor, Federation of Malaysia [1950] AC 458. Back

15  First Report 1997-98 HC 258 para 129. Back

16  Q115 (Mr Cape). Back

17  SPTL submission to Law Commission part IV (not printed) Back

18  Q120 (Mr Trollope). Back

19  Q8 (DPP). Back

20  Q 70 (ACPO). Back

21  Q 80 (ACPO). Back

22  Q 77 (ACPO). Back

23  Victim Support response to Law Commission (not printed)Back

24  Q 111 (ACPO). Back

25  Appendix 9 p55 (Police Superintendents). Back

26  Q 130 (Mr Trollope). Back

27  Appendix 7 p45 (Liberty). Back

28  Appendix 5 p42 para 11 (Law Society). Back

29  Appendix 5 p42 para 8 (Law Society). Back

30  Appendix 4 p40 para 6 c. (iv)) (Criminal Bar Association). Back


 
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