APPENDIX 5
Memorandum by the Criminal Law Committee
of the Law Society
DOUBLE JEOPARDY
INTRODUCTION
1. The Criminal Law Committee is comprised
of practitioners who have experience of defence and prosecution
work, two justices' clerks, an academic lawyer and a stipendiary
magistrate. Several of the Committee are also part-time members
of the judiciary.
2. The Criminal Law Committee has agreed
that a person should not be tried a second time for any offence
where the facts are substantially the same as an offence for which
he or she has been acquitted.
3. The only exception would be when there
had been a conviction for an administration of justice offence,
following the interference with a juror, witness, magistrate or
judge, which the Court certified was likely to have resulted in
the acquittal.
THE LAW
COMMISSION'S
PROPOSALS
4. The Criminal Law Committee took as its
starting point the Law Commission's consultation paper No 156
"Double Jeopardy". It considered the Commission's provisional
proposals that tainted acquittals should additionally include
interference with judges or magistrates and that the double jeopardy
rule should be extended to a retrial for any offence arising out
of substantially the same facts, but subject to an exception and
put into statutory form. The Commission's requirements for the
exception are set out below.
— First, the new evidence should make
the prosecution's case substantially stronger than it was at the
first trial and, overall, there should at least be a very high
probability of a conviction.
— Second, if the defendant were convicted
of the offence alleged, the sentence on a plea of not guilty would
be a minimum of three year's imprisonment.
— Third, the new evidence could not,
with reasonable diligence, have been adduced at the first trial.
— Fourth, the court should have to
be satisfied in all the circumstances of the case that it would
be in the interests of justice to allow a retrial.
— There would be a right of appeal
from the High Court to the Court of Appeal against a decision
to allow a retrial.
THE CRIMINAL
LAW COMMITTEE'S
VIEW
5. The Criminal Law Committee considers
that it would not be in the public interest to prosecute a person
after acquittal even though the requirements proposed by the Law
Commission were met. This is because neither the Criminal Law
Committee nor the Commission have been able to suggest sufficient
safeguards to protect an innocent defendant from conviction in
such circumstances.
The Police investigation
6. The Criminal Law Committee is concerned
that the police investigation may be continued after acquittal
on the decision of the police force concerned alone. In England
and Wales the police investigation is not subject to any supervision
by a prosecutor or by a judge. The Law Commission's requirements
do not safeguard an innocent defendant from a decision of certain
police officers, who refuse to accept the jury's verdict, to put
pressure on someone whom they believe was wrongly acquitted. This
could become persecution of the acquitted defendant, used disproportionately
against ethnic minorities because of racism in the criminal justice
system.
7. An innocent person may fear that pressure
from police investigators may produce unreliable or false evidence,
which has the appearance of reliability. It could be an alleged
"cell confession" to a fellow prisoner while on remand,
only related to the police after the acquittal because the fellow
prisoner assumed that the defendant would be convicted. It could
be evidence resulting from the re-interviewing of prosecution
witnesses or from an inappropriate investigation and interviewing
by the police of witnesses who gave evidence for the defence.
8. The Criminal Law Committee was also concerned
that a police force would allow a trial to go ahead following
an incomplete investigation, in the belief that if they did not
succeed by obtaining a conviction, the investigation could be
continued, and they could go back to court with further evidence.
It may not be apparent to the court that the new evidence could,
with reasonable diligence, have been adduced at the first trial.
The inadequacy of the original police investigation in the Stephen
Lawrence case only became apparent as a result of a lengthy public
inquiry. It is understandable that the public wish to see people
who commit crimes convicted. But all the emphasis must be on the
police getting the investigation right in the first place, rather
than allowing them a second chance.
9. To ensure that the police are motivated
to carry out a diligent first investigation and that any further
investigation is warranted and fair, there would need to be a
requirement that the consent of the Attorney General or the Director
of Public Prosecutions was required before any further investigation
was carried out and that the investigation was then conducted
by a different police force from the force which conducted the
original investigation.
Re-trial
10. The High Court judges would have to
attempt to put themselves in the place of the jury when deciding
that there was a "very high probability of conviction"
at a retrial. The Criminal Law Committee is not satisfied that
they would be able to do that fairly. The judges would not have
heard the original witnesses and would rarely hear the new ones.
They would not know what view the jury took of the original evidence
and as a result would have difficulty in assessing whether the
new evidence made the prosecution case "substantially stronger".
11. The Committee's principal concern was
that 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 because the High Court had decided that the new
evidence made the prosecution's case "substantially stronger
than it was at the first trial" and that there was a very
high probability of the defendant being convicted by them. Despite
efforts to keep the High Court's role from the jury, the original
acquittal may have been well publicised and even if it was not,
information of this nature has a way of leaking out and bringing
a costly and premature end to trials. Neither the Commission nor
the Committee can suggest an adequate way of safeguarding a defendant
from this.
CONCLUSION
12. The Criminal Law Committee agrees with
the Commission that tainted acquittals should include interference
with judges or magistrates.
13. The Committee considers that the double
jeopardy rule serves a very useful purpose as it ensures finality
for those acquitted of criminal charges and that innocent defendants
are protected from the further serious distress that will be caused
by a trial after acquittal. It also encourages the police to carry
out an effective investigation and the prosecution to proceed
only when they have sufficient reliable evidence.
14. If there were to be an exception to
the double jeopardy rule, the case should at least meet the requirements
proposed by the Law Commission and any further investigation should
require the consent of a Law Officer and be conducted by a different
police force.
15. However, no adequate safeguard has been
proposed to prevent a wrongful conviction as a result of the jury
at a re-trial being influenced by the view of the High Court that
there was a "very high probability" that they would
convict the defendant.
16. For this reason, the Committee concludes
that legislation should prohibit the retrial of a person for any
offence where the facts are substantially the same as an offence
for which he or she has been acquitted, with an exception only
when there has been an acquittal which the Court certifies was
because of intimidation of a juror or witness (or potential witness),
magistrate or judge.
9 December 1999
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