APPENDIX 4
Memorandum by the Criminal Bar Association
PRELIMINARY OUTLINE RESPONSE TO THE LAW COMMISSION'S
CONSULTATION PAPER "DOUBLE JEOPARDY"
1. The following consists of the initial
view of the Working Party. They are necessarily provisional. A
full response will be submitted to the Law Commission by 31 January
2000.
2. THE INTRODUCTION
(PARAGRAPHS 1.1 TO
1.19)
We noted the background to the reference of
the rule to the Law Commission and to the proposed changes to
it. We were immediately concerned that a rule of "ancient
origin" (paragraph 1.4) that has been asserted so often by
the highest judicial authorities and is present in all sophisticated
legal systems should be the subject of significant reform in these
circumstances. The view of the Committee of Inquiry into the Stephen
Lawrence case apart, no evidence or research is relied on or cited
as demonstrating a need for reform or that the present rule was
liable to or had worked injustice. It should be noted that the
salient and deeply regrettable features of the Stephen Lawrence
case relevant in this regard were an incompetently conducted police
investigation into a murder, a decision by the CPS not to prosecute
any of the suspects and the unsuccessful private prosecution of
some of them. They have not been known to be present in any previous
case and are perhaps unlikely to re-occur. For the reasons set
out below we are in favour of the extension of the rule as set
out at paragraph 1.19 (1) and (2). We are opposed to the "new
evidence" reform proposed at (3). We favour some reform of
the tainted acquittal procedure (4). We are opposed to a reform
of the rule providing the challenge of a defendant's previous
acquittal.
3. THE PRESENT
LAW OF
DOUBLE JEOPARDY
(PART II)
We broadly accept the analysis of the present
law. We doubt whether the obiter dicta in Leoni
is a proper basis for the Commission's view at paragraph 2.25.
4. THE SIGNIFICANCE
OF HUMAN
RIGHTS LAW
(PART III)
This is a helpful comparison of our domestic
law as with the provisions of the ICCPR and the ECHR.
5. THE SCOPE
OF THE
RULE AGAINST
DOUBLE JEOPARDY
(PART IV)
We broadly agree with the Commission's analysis
of the need for the rule and the options available as to its extent.
We consider the need for finality in criminal cases is seriously
understated (paragraph 4.8). We agree with the proposed reforms
at paragraph 4.16.
6. NEW EVIDENCE
(PART V)
a. Although article 4 of Protocol 7 of the
ECHR permits an exception to the rule (paragraph 5.5) no other
country, except Finland, has a "new evidence" exception
to their rules against double jeopardy.
b. Whilst setting out features of a "strongest
possible case" for reopening an acquittal (paragraph 5.7)
the Commission then proceeds to give two examples, which border
on the common-place and might readily occur. Whether the "new"
scientific evidence results from a new DNA test or the finding
of a fingerprint or collection of fibres, the "strength"
condition may be met; equally by the discovery of new eye-witnesses
or participants prepared to give evidence. If these situations
are examples of "typical" new evidence cases we are
concerned about the probable frequency of applications to the
High Court to reopen acquittals. We very much doubt they would
be a "very occasional occurrence" (paragraph 5.14).
c. We are opposed to the proposal that the
rule should be subject to the discovery of new evidence exception
(paragraphs 5.17 to 5.72). Our concerns are:
(i) A rule of such constitutional importance
and universality in developed legal systems ought not to be reduced
in effect without cogent evidence demonstrating the need for change.
(ii) We agree with the statement of Black
J (paragraphs 1.3, 4.5, 4.6) as to the reasons for the rule. We
believe the Commission misstates part of his reasoning (paragraph
5.11). It is not simply the fact of having to stand trial twice
for the same offence, but that a citizen may be harassed and pursued
by the State notwithstanding his having stood his trial and been
acquitted, causing him to "live in a continuing state of
anxiety and insecurity".
(iii) The need to encourage efficient police
investigations is accepted as a sound argument for the rule (paragraphs
4.11 and 5.16). We regard it as important and part of the State's
obligation to ensure it has the best possible evidence available
to it when it prosecutes a citizen. We think that (as we conclude
below) under the proposals an "acquittal" may no longer
be an acquittal and thus the imperative to present the best possible
case on the first occasion will be diminished. We have little
confidence in the "due diligence" requirement (see below).
(iv) We also consider there is a real risk
that disappointed investigators, particularly in high profile
cases (eg Colin Stagg) may well wish to immediately recommence
investigations after an acquittal, particularly if there is pressure
from the media, victims, or politicians. Those with previous convictions
known to the investigating officers would also be targets. Officers
with a personal animus against an accused may wish to pursue him
despite an acquittal.
(v) There are serious risks that a new trial
will be unfair as acknowledged in paragraphs 5.49 and 5.50. We
do not think that the "interests of justice" safeguard
provides adequate protection. It is an elastic phrase which may
be used to justify prosecutions in a wide variety of circumstances.
(vi) In any event the prosecution will have
a precise knowledge of the defendant's case and be able to review
its own case. It will then be able to strengthen the latter and
meet any aspects of the defendant's case that might have succeeded.
It will thus be placed in an immeasurably stronger position than
that to which it is entitled in the first trial. We consider there
may be a breach of the principle "equality of arms".
Whilst comparison may be made with the situation before re-trials,
there can be no objection to enquiries continuing up to the conclusion
of the prosecution case if a previous trial ended inconclusively.
We submit that in the event of an acquittal the relative advantage
thereafter enjoyed by the prosecution in the event of a new trial
should be regarded as objectionable.
d. We are not persuaded that the "safeguards"
proposed as part of the mechanism for application to the High
Court in the event of "new evidence", will be effective.
In particular:
(i) The "due diligence" test will
be easily satisfied (paragraph 5.46 to 5.48). A previously undiscovered
witness or unexamined item of clothing or implement may result
in significant new evidence. It will not be difficult for prosecutors
to assure the court that there was no reason to think X was an
eye witness or that an item of clothing belonged to the defendant
and hence pass the due diligence test. The acceptance by the courts
of routine assurances by the prosecution as to due diligence in
Custody Time Limits extension cases gives no grounds for thinking
this will be a rigorous test.
(ii) As already indicated we do not find
the "interests of justice" provision to be a protection
against reprosecutions in any case where convincing new evidence
is discovered. We think the "public interest" referred
to in paragraph 5.51 is very likely to prevail over the interests
of the accused, particularly in cases the subject of media or
campaigning attention.
(iii) It is plain the Commission contemplate
a substantial time limit of a number of years (paragraph 5.57).
We consider this reinforces Black J's concerns about the State's
pursuit of the citizen and the latter's continuing state of anxiety
and insecurity. A person may quite literally be the subject of
ongoing investigations for years.
(iv) Although it is proposed that there
should be no power to reopen a case a second time (paragraph 5.58),
there is no limit to the number of applications to the High Court
that may be made. A person may thus be subjected to repeated attempts
by the authorities to satisfy the conditions in his particular
case. This further exemplifies the continued pursuit of an acquitted
person that may occur if those changes are made.
e. In the event this reform is made we would
suggest the application of the strictest test (paragraph 5.42)
and a right of appeal (paragraph. 5.68).
7. FUNDAMENTAL
DEFECT IN
THE FIRST
TRIAL (PART
VI)
Whilst we agree that an extension to the current
provisions to include interference with judges and magistrates
(paragraph 6.8), we have yet to form a final view on the proposed
reforms (paragraph 6.12). We wonder whether a fundamental change
in the law and procedure is justified, where there are no grounds
other than the Commission's own reasoning and the relevant statutory
provisions were so recently enacted (Criminal Procedure and Investigations
Act 1996 s.54)
The rule against challenging a previous acquittal
The Commission takes the view that the rule
in Sambasivan will in part be redundant if their proposed reforms
are put into effect. (paragraphs 8.18 to 8.39). We have yet to
examine the Commission's reasoning and findings in detail. Again,
these apart, no basis is advanced for a change to a rule that
emanated from a distinguished judicial source and has been reaffirmed
in a number of cases. Academic opinion is divided. We disagree
that there is no risk of two courts reaching inconsistent decisions
as suggested in paragraph 8.29. We think there is a real danger
that prosecutions may use the change in the rule to mount prosecutions
which in effect reverse previous acquittals. The objections to
these proposals may echo those advanced to the "new evidence"
proposals.
8. RETROSPECTIVE
EFFECT (PART
X)
Although we have yet to reach a concluded view,
it is likely we will object strongly to retrospectivity if these
reforms are implemented inter alia for the reasons stated
in paragraphs 10.2, 10.13, 10.14
Prosecution Appeals (Part XI)
We have yet to consider and arrive at a view
as to paragraph 11.13.
9. CONCLUSION
We are, in this final analysis gravely concerned
that the "new evidence" proposals will significantly
alter and diminish the effect of an acquittal. Despite the proposed
procedures and conditions there is a real risk that acquittals
will be regarded as "provisional" pending the elapse
of the specified time limit without further evidence being found.
They will no longer be finally determinative of the question of
guilt or innocence. We regard this prospect as objectionable in
principle and underlines our concerns and the reasons for them
as already set out.
Andrew Trollope QC, Peter Lodder, Sacha Wass,
Selva Ramasamy, Sharon Leene
8 December 1999
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