APPENDIX 7
Memorandum by Liberty
DOUBLE JEOPARDY: INQUIRY INTO LAW COMMISSION
CONSULTATION PAPER NO 156
Liberty (The National Council for Civil Liberties)
is one of the UK's leading civil liberties and human rights organisations.
Liberty works to promote human rights and protect civil liberties
through a combination of test cases litigation, lobbying, campaigning
and research. It is the largest organisation of its kind in Europe
and is democratically run.
We have laid out below the individual points
and proposals made by the Law Commission in Part XII of its consultation
paper, and our response to them.
THE RULE
AGAINST DOUBLE
JEOPARDY
1. We provisionally propose that:
(1) the rule against double jeopardy should
be retained;
(2) the rule should be extended so as
to prohibit the prosecution of a person not only
(a) for any offence of which he or she has previously
been acquitted or convicted, but also
(b) for any offence founded on the same or substantially
the same facts as such an offence; and
(3) the rule as thus extended, and any
exceptions to it, should be stated in statutory form.
Liberty welcomes the provisional view of the
Law Commission.
NEW EVIDENCE
2. We propose that the rule against double
jeopardy should be subject to an exception for certain cases where
new evidence is discovered after an acquittal.[1]
The rule against double jeopardy provides an
important protection for individuals facing criminal prosecution.
It ensures that the criminal justice system has an essential element
of finality and prevents the threat of oppressive prosecutions.
Any measures that reduce the possibility of
further prosecutions for offences that arise from the same or
similar facts for which a defendant has been prosecuted is to
be welcomed.
Any relaxation of the current law would be
a retrograde step. It would cause needless anxiety and insecurity
to thousands of acquitted defendants—the lingering ill-founded
fear of being prosecuted again. Defending a criminal trial is
exhausting and draining. We agree that innocent people will often
not enjoy the stamina or resources to effectively fight a second
trial. We fear that defendants will almost always be disadvantaged
in the presentation of their defence in such circumstances. (We
consider that the position of a defendant in a retrial is significantly
different. The retrial is properly regarded as a continuation
of the original trial).
Once a criminal court has concluded its proceedings
the defendant has a legitimate expectation that the case is concluded.
We note that the Law Commission's provisional proposals could
give rise to a curious practical outcome. If the prosecution promised
a defendant not to prosecute, proceedings would be stayed as an
abuse of the court's process, whereas if a jury acquitted the
defendant there would be no bar to a further prosecution.
In our view, many acquitted defendants already
suffer a stigma in their communities: "no smoke without fire".
If the public knew that acquitted defendants ran the risk of further
prosecutions, the reputations of such defendants (including many
innocent people) would be further damaged.
Given the limited ability of victims to influence
the trial process, we consider that there may be an argument that
victims of crimes will often benefit from being able to draw a
line in the sand following an acquittal, rather than holding an
unrealistic expectation that the prosecuting authorities will
discover further admissible evidence.
Having consulted with experienced practitioners
as well as members of the public we doubt there is an appetite
for changing the law to allow retrials where fresh evidence arises.
In our view such cases would be likely to occur rarely. At a time
when the criminal system is straining under the weight of numerous
changes we question the virtue of such a proposal on pragmatic
grounds as well as on principled grounds.
THE SERIOUSNESS
OF THE
OFFENCE
3. We provisionally propose that
(1) the exception for new evidence should
be available only where, if the defendant were convicted of the
offence now alleged, the sentence would be likely to be of a specified
minimum severity; and
(2) for the purpose of determining what sentence
would be likely to be imposed, it should be assumed
(a) that the plea would be one of not guilty;
(b) that the court would find the facts to
be as the prosecution now alleges them to be; and
(c) that the sentence would not be reduced
on the basis of any distress or uncertainty resulting from the
retrial, or the lapse of time since the offence or the acquittal.[2]
As we set out above, we oppose strongly any
relaxation in the rule against double jeopardy. If, contrary to
our view it is decided to relax the rule, we think there is a
compelling argument to limit the relaxation to crimes of murder.
Police resources are scarce. Generally speaking,
these resources should be concentrated on solving recently-committed
crimes. We doubt whether the public interest will often be well-served
by punishing those who committed offences many years earlier.
We consider that there are problems associated
with any minimum threshold for retrials. The suggested minimum
sentence does not work to provide a common benchmark for seriousness.
A simple example demonstrates the point. In the public mind a
rape is a far more serious crime than supplying a small quantity
of a class A drug to a friend, yet the statutory minimum for the
latter offence for a third time offender is seven years (section
3, Crime (Sentences) Act 1997), whereas the starting point for
rape is five years.
If DNA testing improved so that minute traces
of DNA could be detected on drug samples years after the original
trial we do not consider the public interest is likely to be served
by hundreds of retrials. Nor do we think there would be widespread
disquiet if the law prevented retrials in such cases.
We think that were the law to be relaxed the
law should recognise that the position concerning murder is different.
Murder occupies a uniquely grave position in the lexicon of offences.
The law and public opinion treat murder differently to other offences.
This owes something to the historical debate over capital punishment
and the mandatory life sentence. Murders that have not resulted
in a conviction continue to occupy public interest, from Jack
the Ripper to the murderers of PC Blakelock, Rachel Nickel and
Stephen Lawrence. We appreciate that were there to be compelling
new evidence in a murder case the competing pressures in favour
of permitting a retrial would be stronger than for any other offences.
4. We invite views on what, for the purpose
of the requirement proposed at paragraph 3 above, the specified
minimum sentence should be. Our provisional preference is for
a minimum of three years' imprisonment.[3]
Three years is far too low. It would catch most
domestic burglaries, street robberies, Section 18 assaults (GBH
with intent), and Class A drug supplies. These offences are, unfortunately,
so run-of-the-mill that convictions currently do not merit any
media attention. In our opinion the arguments for relaxing the
rule against double jeopardy is far weaker when the offence is
not one of the utmost gravity.
THE STRENGTH
OF THE
EVIDENCE
5. We provisionally propose that the exception
for new evidence should be available only where the new evidence
makes the prosecution's case substantially stronger than it was
at the first trial.[4]
We agree.
6. We provisionally propose that the exception
for new evidence should be available only where, taking into account
all the evidence likely to be adduced, the likelihood of the defendant
being convicted at a retrial is judged by the court to be of a
certain minimum level. The options for this minimum level include
(1) that a reasonable jury, properly directed,
would be more likely to convict than to acquit;
(2) that it is highly probable that such a
jury would convict; or
(3) that the court is sure that such a jury
would convict.
We provisionally reject (1), and invite views
on (2) and (3).[5]
We understand the reasoning behind the suggestion
for a high minimum level and if retrials are to be allowed we
would favour the highest possible minimum.
However we would point out the drawbacks of
this course. It is notoriously difficult to judge the weight of
the evidence in criminal trials without assessing the credibility
and reliability of the witnesses. Unless prosecution (and defence)
witnesses give live evidence it would be impossible for the High
Court to decide whether the threshold had been reached.
It is highly likely at least one jury member
in any retrial would be sufficiently aware of the procedure and
thus know that, having considered the evidence the judge (and
the Court of Appeal) were convinced that the defendant was almost
certainly guilty. Once the jury discovered the High Court has
determined that the live evidence satisfied the threshold it would
be a brave jury indeed who would be willing to decide that the
High Court judge was wrong. This would be most unfair to the defendant
and would deprive the defendant of a fair trial.
7. We invite views on whether the minimum
level of evidential strength required under the proposal in paragraph
6 above should be any lower where the previous prosecution was
a private one.[6]
The primary purpose of the double jeopardy rule
is to protect defendants. We can see no basis to treat the defendant
more harshly if the original prosecution was a private one. We
note that DPP is able to intervene to stop private prosecutions.
EVIDENCE NOT
AVAILABLE FOR
THE FIRST
TRIAL
8. We provisionally propose that:
(1) the power to reopen an acquittal on grounds
of new evidence should be available only where that evidence could
not, with due diligence, have been adduced at the first trial;
but
(2) evidence which was not admissible in
the first trial, and subsequently becomes admissible owing to
a change in the law, should count as new evidence.[7]
We consider that the defendant is likely to
be placed at a considerable disadvantage at any second trial based
on new evidence. Any second trial based on new evidence undermines
the normal approach that defendants are entitled to know the case
they have to meet before advancing their defence. In the first
trial a defendant may have lied about a collateral matter for
a reason for innocent reasons (see direction in R v Lucas).
New evidence is likely to consist of one of two
types:
(a) scientific/expert evidence: this is
almost always likely to be cutting-edge development (ie not available
at first trial)—may not be 100 per cent reliable—see
1970s terrorist explosives cases. In any event it is unlikely
that the scientific evidence by itself will guarantee convictions
(eg practitioners have described to us several examples of defendants
being acquitted by juries of burglaries of premises in which the
prosecution had claimed matching fingerprints or DNA had been
found);
(b) evidence from witnesses who had not been
available to prosecution during first trial (eg Road to Damascus
informer). We consider that the defence will always find it more
difficult to test the reliability of such evidence years after
the first trial.
We strongly oppose any suggestion that a change
in the rules of evidence could trigger a fresh trial. The law
of evidence constantly changes. In the last two years, the law
concerning the admissibility of police interviews, street identifications
and the paraphernalia of drug dealers has changed significantly.
To allow this change would mean that if a substantial part of
a prosecution case was ruled inadmissible by a trial judge and
in a later, separate case on similar facts the Court of Appeal
ruled in favour of the prosecution, it would be open to the prosecution
to seek to reinstitute the case. This would have the perverse
result that if the prosecution thought the trial judge had erred
they would have to wait for some other convicted defendant to
raise the point and fail on appeal.
Similarly, if Parliament decided to amend Section
9, Interception of Communications Act 1985 to enable the evidence
from telephone taps to be made admissible in criminal prosecutions,
there could be a spate of applications to re-prosecute. This would
amount to retrospectivity.
Given the provisional view of the Law Commission
that the rule against double jeopardy should apply in relation
to an acquittal in another country, this proposal would appear
to place a defendant at risk of a retrial if the evidential rules
in England and Wales were less harsh than those of the foreign
jurisdiction.
THE INTERESTS
OF JUSTICE
9. We provisionally propose that a retrial
should be allowed on grounds of new evidence only where the court
is satisfied that, in all the circumstances of the case, this
is in the interests of justice.[8]
Currently the burden of establishing that a
prosecution is unfair rests heavily on a defendant.
We consider that before any second trial was
ordered the prosecution would have to satisfy the court to the
criminal standard that the defendant's defence was not adversely
affected by the second trial. In other words it is not enough
simply to conclude that a jury will now convict, but also that,
had the defendant been faced with the current evidence at the
first trial, the court is satisfied that the first jury would
have convicted.
We do not think that any proposal to relax the
rule against double jeopardy should apply to juvenile defendants
(ie those under 18 when originally charged).
A TIME LIMIT
10. We invite views as to whether an
application to quash an acquittal on the grounds of new evidence
should have to be made within a fixed period after the acquittal,
and, if so, what that period should be.[9]
As we strongly believe in the concept of finality
and certainty we would support the imposition of a time limit.
We think that no proposal could begin to enjoy
broadly-based support unless there was a time limit.
The time limit should be calculated from the
date that the original charge was preferred as this defines the
period that the defendant remains at risk since the decision was
taken to prosecute.
The longer the period between charge and final
disposal the longer is the period during which defendants experience
uncertainty and vulnerability. Moreover we suggest that the balance
that needs to be struck between the interests of the defendant
and the interest of society in the guilty being convicted shifts
in favour of the defendant the longer the gap between the offence
and conviction.
We appreciate that the choice of a suitable
time limit is somewhat arbitrary. We would favour a time limit
of five years.
SUCCESSIVE RETRIALS
11. We provisionally propose that:
(1) the exception for new evidence should
not be available where the acquittal was at a retrial which itself
was held by virtue of that exception; but
(2) where the acquittal was at a retrial
held on some other ground, this should be only one factor to be
taken into account in determining whether another retrial would
be in the interests of justice.[10]
Where a defendant has been subjected to full
complete trials (ie a jury has retired on two occasions, rather
than a jury being discharged in the early stages) we cannot conceive
that it could ever be acceptable to subject a defendant to a third
trial on the basis of new evidence.
We suggest that if the defendant has been acquitted
following a successful appeal to the Court of Appeal this should
also constitute a bar to further prosecution.
THE APPROPRIATE
COURT
12. We provisionally propose:
(1) that the decision whether to allow
a retrial on grounds of new evidence should, in the first instance,
be taken by the High Court;
(2) that there should be a right of appeal
against a decision of the High Court to allow a retrial on those
grounds; and
(3) that that right of appeal should be
to the Criminal Division of the Court of Appeal.
We invite views as to whether the prosecution
should have a right of appeal against a refusal to allow a retrial.[11]
Currently it is not open to the prosecution
to appeal against an adverse decision of a judge during a trial.
If the prosecution cannot convince the High Court, we suggest
that it would not be right to subject a defendant to the ordeal
of a second trial. Given the inherently oppressive quality of
a retrial we do not think there is any justification to allow
the prosecution a "second bite of the cherry". We observe
that the prosecution does not enjoy any appeal against the decision
of the High Court to prefer a voluntary bill of indictment.
NEW EVIDENCE
RELATING TO
A DIFFERENT
OFFENCE
13. We provisionally propose that, where
the defendant has previously been tried for an offence, and new
evidence suggests that he or she is guilty of a second, different,
offence arising out of the same or substantially the same facts,
(1) where the first trial resulted in
a conviction, the High Court should have power to authorise a
prosecution for the second offence;
(2) the High Court should generally exercise
its power (to authorise a prosecution for the second offence or
to quash the acquittal for the first) subject to the same conditions
that, had the defendant been acquitted of the second offence at
the time when he or she was convicted of the first offence, would
have governed the court's power to quash that acquittal; but
(3) for the requirement we propose at
paragraph 5.38 above (namely that the new evidence must make the
prosecution's case substantially stronger than it was at the first
trial) should be substituted a requirement that the new evidence
must substantially strengthen the evidence (if any) of the second
offence that was in the possession of the prosecution at the time
when the defendant was charged with the first offence.[12]
We can see some merit in the proposal although
we see dangers in undermining the rule of autre fois acquit
(you can't be prosecuted for something for which you have
already been acquitted).
THE TAINTED
ACQUITTAL PROCEDURE
The objects of the interference or intimidation.
14. We provisionally propose that the
tainted acquittal procedure should be extended so as to apply
where the administration of justice offence involves interference
with, or intimidation of, a judge or magistrate.[13]
We have no comment to make on this proposal.
THE NECESSITY
FOR A
CONVICTION OF
AN ADMINISTRATION
OF JUSTICE
OFFENCE
15. We invite views on whether the requirement
that a person should have been convicted of an administration
of justice offence should be:
(1) retained in all cases;
(2) abolished and replaced with a requirement
that the High Court should be satisfied (to the criminal standard
of proof) that an administration of justice offence has been committed;
or
(3) retained except where it is impossible
to try the person alleged to be guilty of the administration of
justice offence, in which case the High Court should have to be
satisfied (to the criminal standard of proof) that the offence
has been committed.
We provisionally propose the second option.[14]
Although we accept that the Law Commission raises
an interesting theoretical problem we are unaware that this represents
a practical problem.
We can envisage problems with either (2) or
(3): a person's reputation would be besmirched without being afforded
a fair hearing.
Proposals (2) and (3) would be manifestly unfair
to the tainted-acquittal defendant. It may be very difficult for
that defendant to mount a defence on behalf of the person said
to have interfered on his/her behalf.
We assume that any decision of the High Court
would be subject to appeal to the Court of Appeal (Criminal Division).
In total the variety of proceedings would constitute
a heavy and oppressive burden on the tainted-acquittal defendant.
S/he would be subject to the original trial, preparing third party
defence in High Court, potentially mounting an appeal to the Court
of Appeal and finally a second Crown Court trial.
Proposal (2) is particularly problematic. If
a person who is accused of an administration of justice offence
was subsequently apprehended, tried and acquitted, following a
conviction of the person accused of obtaining a tainted acquittal,
that conviction would have to be set aside. In such circumstances
it would be reasonable to assume that the police may be very reluctant
to pursue the missing person.
16. We provisionally propose that, if
the second or the third option in paragraph 15 above were adopted,
the fact that the High Court has found that an administration
of justice offence has been committed should not be admissible
in any subsequent trial of a person for that offence or an offence
arising out of the same or substantially the same facts as that
offence.[15]
We agree.
THE REQUIREMENT
THAT THE
ACQUITTAL BE
SECURED BY
THE INTERFERENCE
OR INTIMIDATION
17. We invite views on whether, when considering
whether the acquittal was secured by the proven interference or
intimidation, the High Court should apply:
(1) the existing test (that this "appears
to be likely");
(2) the civil standard of proof (that
it is more likely than not);
(3) the criminal standard of proof (that
the court is satisfied so that it is sure);
(4) the test applied by the Criminal Division
of the Court of Appeal in deciding whether to quash a conviction
on appeal (whether it is a "safe" conclusion); or
(5) some other test, and if so what.[16]
We prefer the civil standard of proof. This
seems to strike the appropriate balance and is reasonably well
understood.
THE DEFINITION
OF "ADMINSTRATION
OF JUSTICE
OFFENCE"
18. We invite views on whether, and if
so how, the definition of an "administration of justice offence"
should be extended.[17]
We see no reason to extend the current definition.
THE INTERESTS
OF JUSTICE
TEST
19. We provisionally propose that the
interest of justice test be formulated in the same way as we have
proposed in the case of new evidence[18].
We agree. See our comments above.
ADDITIONAL SAFEGUARDS
20. We invite views on whether the tainted
acquittal procedure should be subject to a seriousness criterion,
a limit to the number of times the procedure may be used, or a
time limit.[19].
There should be a seriousness criterion, such
as for indictable only offences. We think there should be a time
limit that would run from the date of the acquittal. In principle
we do not see any reason why the procedure should only be used
once.
THE PROCEDURE
21. We provisionally propose that provision
be made:
(1) for a hearing of the question whether
the acquittal should be quashed;
(2) for the hearing to be in open court;
(3) for the acquitted person to have
a right to be present;
(4) for both parties to be legally represented,
and legal aid to be available for the acquitted person;
(5) for witnesses to be heard and cross-examined
on the question whether an administration of justice offence has
been committed; and
(6) for consideration of transcripts of
the first trial, together with witnesses if necessary, in determining
whether the acquitted person would not have been acquitted but
for the interference or intimidation.[20]
We agree.
THE ROLE
OF JUDICIAL
DISCRETION
The Connelly principle
22. We provisionally propose that the
Connelly principle (namely that, where a person is charged with
an offence which arises out of the same or substantially the same
facts as another offence of which he or she has previously been
acquitted or convicted, the court should stay the proceedings
unless they are justified by special circumstances) should be
wholly superseded by the extended rule against double jeopardy.
We agree. See our comments above.
ABUSE OF
PROCESS
23. We provisionally propose that a person
whose acquittal is quashed under an exception to the rule against
double jeopardy should not be precluded from applying for further
proceedings to be stayed as an abuse of process.[21]
We agree
THE RULE
AGAINST CHALLENGING
A PREVIOUS
ACQUITTAL
24. We provisionally propose that:
(1) subject to the rule against double
jeopardy and the rules on the admissibility of evidence of a defendant's
previous misconduct, the rule in Sambasivam (which prevents the
prosecution from making an assertion which is inconsistent with
a previous acquittal of the defendant) should be abolished; and
(2) if, contrary to our proposal, the
rule is retained, it should not apply to an assertion supported
by new evidence which could not with due diligence have been adduced
at the first trial.[22]
We consider that the rule in Sambasivam should
be kept for reasons of finality and fairness to the defendant.
An acquittal should be treated as equivalent to a finding of innocence.
Parliament must decide whether to permit relaxation
of rule against double jeopardy and to decide whether it is prepared
to allow retrials. If Parliament agrees with us that this is undesirable,
it would be wrong for a defendant to be exposed to the same evidence
in a later trial. To do so would be to permit a retrial by the
back door.
If Parliament is prepared to relax the rule,
the evidence could be more fairly tested in a retrial of the original
charge, not in a fresh trial of the related matter.
ACQUITTAL AND
CONVICTION
Acquittal where the prosecution case has not been
fully heard
25. Our provisional view is that, for
the purposes of the rule against double jeopardy and (if, contrary
to the proposal at paragraph 24 above, it is retained) the rule
in Sambasivam, a person should continue to be regarded as having
been acquitted:
(1) where a jury return a verdict of not
guilty, with or without consideration of the evidence; and
(2) where the prosecution offers no evidence.[23]
We agree.
ACQUITTAL OR
CONVICTION IN
ANOTHER JURISDICTION
26. We invite views on whether the rule
against double jeopardy and (if, contrary to the proposal at paragraph
24 above, it is retained) the rule in Sambasivam should apply:
(1) wherever the previous acquittal or
conviction occurred;
(2) unless the previous acquittal or conviction
was in one of certain countries expressly excluded for this purpose;
(3) only if the previous acquittal or
conviction was in a member state of the European Union; or
(4) only if the previous acquittal or
conviction was in England and Wales.
We provisionally favour the first option.[24]
We agree.
EXTENDING THE
CONCEPT OF
AN ACQUITTAL
OR CONVICTION
27. We invite views on whether, for the
purposes of the rule against double jeopardy and (if, contrary
to the proposal at paragraph 24 above, it is retained) the rule
in Sambasivam, any outcome of criminal proceedings which does
not now count as an acquittal or conviction should count as such.[25]
We think that cases that are taken into consideration
should count as convictions for the purpose of the rule against
double jeopardy only. This would mirror the understanding of defendants
and most practitioners.
RETROSPECTIVE EFFECT
28. We invite views as to whether, if
our proposals were implemented, the legislation should apply to
acquittals and convictions taking place before it comes into force.[26]
We agree that the logic behind permitting retrospectivity
is derived from civil proceedings: "no suitor has any vested
interest in the course of procedure". This does not apply
to criminal procedure. Equally, Parliament could be said to represent
the prosecution in criminal proceedings.
We agree that for most people who have committed
an offence of any seriousness, the possibility of being re-prosecuted
is likely to exercise a substantial influence on the way in which
they order their lives. There would be unfairness in quashing
their acquittals obtained before the Law Commission's proposals
came into effect.
PROSECUTION APPEALS
29. If any respondents believe that the
law of double jeopardy cannot sensibly be reformed without also
rationalising the law relating to prosecution appeals, we invite
views on how this might be done.[27]
We are alarmed to learn that the government
is considering permitting prosecution appeals. We will be making
full representations in due course. For the purposes of this consultation
we stress that we can see no reason whatsoever why the law relating
to prosecution appeal needs reform in order to effect changes
in the law on double jeopardy.
November 1999
1 CP paragraph 5.17; see summary paragraph 32. Back
2
CP paragraph 5.27; see summary paragraph 36. Back
3
CP paragraph 5.29; see summary paragraph 36. Back
4
CP paragraph 5.38; see summary paragraph 40. Back
5
CP paragraph 5.42; see summary paragraph 42. Back
6
CP paragraph 5.45; see summary paragraph 43. Back
7
CP paragraph 5.48; see summary paragraph 44. Back
8
CP paragraph 5.51; see summary paragraph 45. Back
9
CP paragraph 5.57; see summary paragraph 49. Back
10
CP paragraph 5.60; see summary paragraph 50. Back
11
CP paragraph 5.68; see summary paragraph 51-52. Back
12
CP paragraph 5.72; see summary paragraph 53. Back
13
CP paragraph 6.8; see summary paragraph 56. Back
14
CP paragraph 6.12; see summary paragraph 57. Back
15
CP paragraph 6.13; see summary paragraph 57. Back
16
CP paragraph 6.17; see summary paragraph 58. Back
17
CP paragraph 6.21; see summary paragraph 59. Back
18
CP paragraph 6.22; see summary paragraph 60. Back
19
CP paragraph 6.24; see summary paragraph 61. Back
20
CP paragraph 6.41; see summary paragraph 62. Back
21
CP paragraph 6.7.5; see summary paragraph 64. Back
22
CP paragraph 8.40; see summary paragraph 70-71. Back
23
CP paragraph 9.9; see summary paragraph 73. Back
24
CP paragraph 9.15; see summary paragraph 76. Back
25
CP paragraph 9.22; see summary paragraph 74. Back
26
CP paragraph 10.16; see summary paragraph 77. Back
27
CP paragraph 11.3; see summary paragraph 78. Back
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