The Current Issues Of The Double Jeopardy Rule Law Essay

Double jeopardy existed in our legal system since the time of the Norman conquest and the common law rule that prevented a person from being tried more than once for the same crime was designed to protect the liberty of any individual who had already succumbed to the rule of law and been subjected to criminal trial in the usual way.

Prior to the recent law reform in this area, some very limited exceptions to the double jeopardy rule did exist. The prosecution were allowed a right of appeal against acquittal in some summary cases if the decision appeared to be blatantly incorrect or ultra vires by statute. [1] In addition retrials in the interests of justice have been allowed following appeal against a conviction by a defendant, again by statute [2] (which seemed one-sided to those advocating the removal of the double jeopardy rule). Finally if an acquittal could be shown to have been “tainted” by interference with or intimidation of a member of the jury or a trial witness, this could be challenged in the High Court [3] . It was not until the case of Connelly v DPP [1964] [4] that the Lords acknowledged that whilst a trial arising from the same substantial facts as the original one would not be permitted, there may be “special circumstances”. There is little case law although the introduction of significant new evidence may be sufficient.

Changes to the law

Following the Stephen Lawrence murder when five youths widely believed to have committed the murder were acquitted and named in a daily newspaper, the MacPherson report was produced [5] and made recommendations that double jeopardy should not apply where “fresh and viable” new evidence was available. The Law Commission followed this with their report in 2001 [6] recommending that double jeopardy was removed for murder and following consideration in Parliament a further report was produced proposing a bill to remove double jeopardy for not just murder but some other serious crimes including manslaughter, rape and robbery. [7] 

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There was both opposition and support to the proposed new law which became the Criminal Justice Act 2003, these provisions coming into force in April 2005. Whilst victims’ families and friends campaigned for a change in the law (friends of Stephen Lawrence launched a private prosecution after the alleged perpetrators were not convicted in the public prosecution), there were notable opponents. Liberty, the main civil liberties pressure group in the UK, objected strongly on the grounds that, as quoted their Director, John Wadham, “We increase the chances of innocent people being convicted if we remove double jeopardy.” [8] His view was that a person who has already been subjected to the ordeal of a trial including very probably several months on remand, should not be made to go through that again.

Another perhaps surprising opponent of the change to the law was the Law Society who as Stephen Doherty points out in his article, “New Trials for Old Crimes” [9] , felt that “it would not be in the public interest to prosecute a person after acquittal as it felt that there were insufficient safeguards to protect an innocent defendant from conviction on a retrial”. The President of the Law Society in 2001, Michael Napier, was concerned that the jury would be inevitably influenced if they knew a re-trial had been ordered because there was substantial new evidence available.

On the side of those in favour of retaining the existing law were peers such as Lord Brittan of Spennithorne, who commented in the Lords debate on the Act in 2003, “It is worth remembering that these ancient protections have not existed accidentally and have not survived so long as to be ancient protections for no good reason.” He goes on to say that these ancient protections are the “hallmark of a civilised society” and criticised the idea that these may be removed because of one or two cases causing a populist backlash [10] . Other critics in the Lords referred to the International Covenant on Civil and Political Rights, Article 14(7) of which states that “No one shall be liable to tried or punished again for an offence for which he has already been convicted or acquitted in accordance with the law”.

The actual law as enacted goes far beyond the original Law Commission recommendation and in fact Part 1 of Schedule 5 of the Criminal Justice Act 2003 gives a list of no less than thirty offences which may be re-tried. That said the Act does contain what the government of the day considered to be necessary safeguards: conditions must be met and there are in-built checks and balances. Gibson in his analysis of the Act [11] is satisfied that the requirements of Section 79, requiring a re-trial to be “in the interests of justice” and Section 82, preventing reporting of anything that may bias a re-trial, including the publication of the fact of the trial itself, are enough to ensure these new exceptions are dealt with fairly.

In order to arrive at a re-trial the Act requires the Court of Appeal to agree to quash the original acquittal. Further, the Director of Public Prosecutions must personally approve a new trial. In addition, new and compelling evidence must be raised. However, objections have been raised on human rights grounds for two reasons: firstly, there is a substantial conflict from both a civil liberties and a constitutional point of view in the fact the Act was made retrospective. Secondly, there are those that argue that the law as it now stands is incompatible with Article 4 of the European Convention of Human Rights. The government argued that in fact Article 4(2) does allow the re-opening of previous proceedings whilst Article 4(1) preserves the notion of autrefois in that the same crime cannot be tried again on exactly the same facts. Luke MacNamara argues in his book about human rights controversies [12] that in fact the legislation had little regard to the International Convention but was drafted specifically in accordance with the European Convention on Human Rights, which had been introduced into UK law by the Human Rights Act 1998 and included a provision for all new legislation to comply with its terms. He goes on to say that in fact whilst the common law concept of autrefois may well have been in existence for eight hundred years, it was no longer of the significance it had been, such was the fundamental shift in UK law following the Human Rights Act 1998, both in terms of interpretation and new legislation.

Recent developments

The first case to have been re-tried under the new law was that of Stephen Dunlop [13] who was convicted in 2006 of the murder of Julie Hogg in 1989; ironically he admitted to the offence whilst in prison for another crime and was then sentenced to six years imprisonment for perjury in 2000, but the law at that time did not permit a re-trial for murder. In his original trial two juries had failed to reach a verdict so he had been acquitted. Julie Hogg’s mother, Ann Ming, campaigned strongly for the change in the law prior to its implementation.

Part of the discussion raised by advocates of a change in the law was underpinned by the continuing developments in technology, particularly in the use and reliability of DNA evidence. The first murder case to have been re-opened on the basis of DNA evidence was decided on 13 December this year and Mark Weston was convicted of a murder carried out in 1995. The trial was re-opened on the basis of forensic evidence newly available – blood found on the defendant’s shoes that had not been spotted at the time – and it was only a routine review because the case had not been solved, ten years later, that eventually led to his conviction. The murder was savage, the victim having been bludgeoned with a rock and then left to die of brain injuries a few days later: this case is surely an example as to why the change in the law is justified, indeed necessary in order to do justice and protect the public from men like Weston.

Conclusion

Whilst there was vehement objection to the change in double jeopardy rules by the Law Society and Liberty as well as various politicians, the change in particular in relation to murder has been shown to be effective following the Dunlop and Weston cases. It seems only just that since we have long been able to overturn unfair convictions on appeal, that incorrect acquittals should be treated in a similar way. As MacNamara comments, this may be a reflection of the increasing victim support culture of this country, but the innocent have nothing to fear.