The Blunket Reforms.

The MacPherson report dealt a substantial blow to the double jeopardy principle by recommending, under r.38, that speculative charges brought without full investigation could possibly be retried if further evidential information presented itself. This, it is argued, jeopardises the defendant’s rights and could lead to abuse of process.

Narrow application and incursions of the rule

 The double jeopardy rule has traditionally been quite narrow in its scope as was demonstrated in the case of Khan v DPP. It was held that when a greater and a lesser offence was brought before the magistrate, and where the prosecution failed to bring any evidence on the lesser offence, then autrefois acquit did not apply to the greater offence. This train of thought was followed in the case of Brookes where the Court of Appeal found that autrefois acquit for a s.20 OAPA 1861 did not apply when charged with s.18 OAPA 1861.

However, there have been incursions into the protection offered by this rule. Initially, in 1964 the case of Connolly lead to the Connolly Principle that “where the facts are substantially the same, a defendant should not be tried a second time for any offence arising out of those facts, regardless of whether or not it is the same as the offence in the first trial, unless there are special circumstances”. Those special circumstances were to be left to the discretion of the judge.

Then there came the “tainted acquittal” which represents the position that occurs if there has been intimidation of a witness or juror resulting in the acquittal of an accused. Under these circumstances the High Court could quash an acquittal where it was “tainted” through action in the Criminal Procedure and Investigations Act 1996. This can be seen as relevant where the original proceedings as having a fundamental defect. Many would argue that these exceptions to the double jeopardy rule are sufficient to ensure that those guilty do not walk free.

However, following the MacPherson report the Home Affairs Select Committee produced a flurry of reports suggesting a relaxation of the double jeopardy rule under one of two conditions:-

1. New evidence makes the original acquittal unsafe

2. That on conviction the offence is serious enough to warrant a life penalty imprisonment.

It was advised that a case should only be brought where there was sufficient public interest in retrial and where the new evidence could not, with due diligence, have been brought at the first trial. These recommendations seem to try to eliminate the possibility of bad police investigation at the first instance as being a reason to ground a retrial. They also seem to narrow the ability of bringing a retrial to the most serious of cases.

Retrospective Legislation

Under the ECHR article 7 prohibits retrospective criminal legislation however it does not prohibit changes to the rules of criminal procedure. The Law Commission decided that the double jeopardy rule should be viewed as being a rule of criminal procedure and it would therefore follow that any changes to the law could be retrospective in nature if implemented so. Indeed the Select Committee, when discussing the possibility, stated that any reform of the double jeopardy rule should be retrospective in nature. This could lead to upheaval of many cases with the intention of retrial.

Presumption of Innocence  

A daring question would be to ask if the second retrial would be as fair as the first. The fact that there is such a high standard to be overcome before a retrial would be allowed could be seen as suggesting the person’s guilt even before the trial starts. This obviously would be at odds with the undeniable presumption of innocence. The presumption would be undermined naturally and it would be difficult, if not impossible, to erase those thoughts from the person adjudicating the case.

It is also important to evaluate the roll of the media in cases that are to be retrialed. One of the conditions is that there has to be sufficient public interest in the case. If this was so and the offence was one so serious as to warrant a life imprisonment, then both past and present media coverage could have a profound effect upon the fairness of the trial. When a trial is over and an accused has been acquitted the media are free to report the case in whatever fashion they decide subject to the rules of defamation. This information, once disseminated to the public, could lead to retrials that are tarnished by media frenzy. Again this is another reason why the rule on double jeopardy should not be changed without fully understanding the effects it would have.

It is argued that in any case the removal of the double jeopardy rule is not the only way to deal with the problem. When a guilty man is acquitted he has perverted the course of justice and as such is liable for it, so why not convict him of the offences he has committed when evidence of his antics comes to light. As James Couser has argued “ The numbers of cases to which the double jeopardy rule would apply is out of all proportion to the miniscule amount of occasions when such confessions or scientific evidence have come to light following an acquittal, so why use a sledgehammer to crack a nut”.

Implications of the Criminal Justice Bill

Mr Blunkett has proposed as part of the Criminal Justice Bill that alterations should be made to the law in relation to the double jeopardy rule. Clauses 62-69 deal with the issues under a number of headings.

Clause 62:

This sets out the cases that may be retried under the new evidence exception to the normal rule against double jeopardy. To be retried the case must be of a very serious nature with a maximum sentence of life imprisonment and it must be considered to have a particularly serious impact on the life of the victim or society in general. These are known as qualifying offences. It may also be possible to retry a case where an acquittal verdict was found abroad but where the offence took place within the UK.

Clause 63:

This allows a prosecutor to apply to the Court of Appeal for an order that would quash a persons acquittal and lead to a retrial. Any application to the Court of Appeal requires the Director of Public Prosecutions permission first. It is stated that this procedure is supposed to ensure that there is viable new evidence on which to convict and that there is sufficient public interest in the bringing to justice of an individual. It is also possible for Public Prosecuting authorities to bring a case even if that case was initially a case brought privately. Further, only one application for an acquittal to be quashed can be made in relation to any acquittal.

Clause 64:

This established the decisions that are open to the Court of Appeal when an application comes before them. They can quash an acquittal if the provisions in clauses 65 and 66 can be satisfied. That is that there is new and compelling evidence and that it is in the interests of justice to bring such a case.

Clause 65:

This clause establishes the requirement that there must be new and compelling evidence in order to bring a case. Evidence is “new” if it was not known at the previous trial. This infers that any evidence that was known by the prosecuting autorities but was not used in the original trial cannot be brought as a ground for retrial. The evidence is considered to be “compelling” if the court considers it to be reliable ans substantial and that the evidence tends to suggest that the person previously acquitted is in fact guilty of the offence.

Clause 66:

This establishes the position that any case brought must be brought in the interests of justice. For this to be done the court will consider if it is possible for the person to have a fair trial if a retrial is ordered.

Clause 67:

This clause sets out a number of evidential procedures that are to be followed when bringing an application for acquittal to be quashed. These provide for a notice of the application to be made to the court of Appeal and served on the acquitted person within 2 days of the application being made.

Clause 68:  

This allows an appeal to the House of Lords in respect of decisions made by the Court of Appeal on an application.

Clause 69:

This clause deals with the problems of media coverage and it states that reporting restrictions apply to the application process and the consequent retrial. The only time they can report is after the when it is clear that the acquitted person cannot be retried of the offence. These provisions are established to ensure a fair trial and to ensure that the jury could not be influenced by external forces. However, it is submitted that that these reporting restrictions are at the discretion of the judge, so if he thinks fit to do away with them then he can do so.

Conclusion

There is a wide range of views in relation to proposed reforms to the traditional rule of double jeopardy. Some people argue that there is no need for a change to the law and that the marginal benefit from doing so would be almost insignificant in comparison to the legal implications of reforming such a rule. It has been grounded within the English legal system for 800 years and has served well in it’s time. It could be argued that it was the pressure from the Lawrence case that led to the questioning of the double jeopardy rule. It is true that some criminals will walk free, but it is better that they walk free rather than an innocent man goes to prison.

To adapt the rule as suggested in the Criminal Justice Bill will open a lot of doors all of which cannot be foreseen. The Bill attempts to deal with some of the obvious issues, such as media reporting etc, but this still does not deal with the presumption of innocence issue where any jury would be convinced simply because there is such a high standard of evidence required before you can obtain a retrial. To give the prosecuting authorities more powers is to take power away from the individual and this cannot be seen as productive in the light of recent legislation.  

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