PART 10: DOUBLE JEOPARDY
102. Double jeopardy is a rule which protects a person
from being tried a second time for the same offence:
"Accordingly, where a person has previously
been acquitted...of an offence and is later charged on indictment
with the same offence, a plea of autrefois [acquit] will bar the
prosecution. An analogous rule applies in summary trials".[112]
103. Our predecessors in the last Parliament gave
careful consideration to the arguments for and against a relaxation
of the double jeopardy rule, when they conducted their own inquiry
in early 2000. This was shortly after the Law Commission had published
its consultation paper on the subject.[113]
In the Committee's inquiry, our predecessors concluded that there
was a strong case for relaxing the rule to allow retrials if (a)
there was new evidence that made the previous acquittal unsafe
and (b) the offence was sufficiently serious for a life penalty
to be available to the judge on conviction.[114]
They recommended that this should only apply where the Director
of Public Prosecutions had determined that it was in the public
interest to seek a retrial.[115]
They also suggested that any reform apply retrospectively.[116]
104. Part 10 of the Bill will give effect to the
broad thrust of our predecessors' recommendations. It will allow
a person previously acquitted of a 'qualifying offence', to be
retried for that offence. The qualifying offences, which are listed
in Schedule 4, are all very serious offences which carry a maximum
penalty of life imprisonment (although they do not include all
offences for which life imprisonment is the maximum penalty).
Clauses 63 and 65 provide that an application for a retrial may
only be made with the written consent of the Director of Public
Prosecutions, who must be satisfied that (a) there is "new
and compelling evidence that the acquitted person is guilty of
the qualifying offence" and (b) that it is in the public
interest for the application to proceed. For an application to
succeed, the Court of Appeal must also be satisfied that there
is new and compelling evidence and that is in the interests of
justice to make such an order (Clauses 64-66). Clause 62(6) will
give Part 10 retrospective effect and Clause 63(5) will prevent
multiple applications for retrial by limiting the prosecution
to one application only.
105. In practice, this will usually apply where DNA
evidence, which was not available at trial, subsequently becomes
available. Ian Blair, the Deputy Commissioner for the Metropolitan
Police, said:
" If scientific evidence becomes available
that was not available at the time of the first trial, then is
it really rational that we should not put that back in front of
another court".[117]
106. During this inquiry, several of our witnesses
were concerned that a retrial could never be conducted fairly
because the jury would know that the Court of Appeal had already
decided that there was new and compelling evidence of the person's
guilt.[118]
We are satisfied, however, that Part 10 contains sufficient provision
to safeguard against this. First, when considering whether it
is in the interests of justice to order a retrial, the Court of
Appeal must have "particular regard" to a number of
specified factors including, "whether it is likely that a
fair trial pursuant to the order would be possible" (Clause
66(2)(a)). Secondly, if the person who is to retried is concerned
about the likely prejudice before a jury he can, under the Bill,
apply for his trial to be conducted without a jury (Clause 36).
When we asked the Minister how many retrials were anticipated
under this Part, he said "a handful—ie, a small number
of such cases".[119]
107. We welcome the provisions of Part 10, which
are broadly in line with our predecessors' recommendations for
reforming the double jeopardy rule.
112 Law Commission, Double Jeopardy and Prosecution
Appeals, Law Com No 267, para 2.2. Back
113
Consultation Paper No 156 published in October 1999. Back
114
Third Report of the Home Affairs Committee, Session 1999-2000,
The Double Jeopardy Rule, HC 190, para.66. Back
115
Ibid, para 24. Back
116
Ibid, para 55. Back
117
Q 106. Back
118
See for example Q 257, Peter Binning. Back
119
Q 430. Back
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