Double Jeopardy Essay

“The plea of autrefois acquit and autrefois convict … is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life, more than once, for the same offence."1
Despite the plea of double jeopardy having been consolidated in history, it was put into light by the Stephen Lawrence Enquiry which later resulted to the drafting and implementation of the Criminal Justice Act 2003 allowing for reform on double jeopardy through the protection for wrongly acquitted criminals. The amendments provided in the Criminal Justice Act 2003, allowing for the alteration of the legal principle of double jeopardy in
England and Wales would respectively allow for; ‘consideration to be given to permit prosecution
after acquittal where fresh and viable evidence is presented respectively allocating power to the prosecution to reinstate criminal proceedings.
The issue of double jeopardy reform emerged with the investigation of the racially motivated murder of Stephen Lawrence in 19972, which was brought forth by the publishing of The Stephen Lawrence Enquiry. Deriving from common law, it stated that if evidence were to emerge against any of the three men acquitted, they could not be tried again no matter the strength of the evidence. Following on, it argued that “in modern conditions
1 4 WILLIAM BLACKSTONE, COMMENTARIES *329.
2 HOME DEPARTMENT, THE STEPHEN LAWRENCE INQUIRY, 1999, Cm. 4262-1 such absolute protection may sometimes lead to injustice”. 3 Pursuant to the suggestions, the House of Commons charged the Law Commission to consider changes to the rule against double jeopardy thus producing report4 report5 which would allow for the change of law regarding autrefois convict and autrefois acquit. Though the Law Commission set about the right means for reform, concluding that the “Court of Appeal should have power to set aside an acquittal..” the focus of reform being on murder only”6, rose viable enquiries . This is seen in cases such as R v Burinskas and is supported by the Justice for All: White Paper stating “the change should extend to a number of other very serious offences”7. Lord Justice Auld supported “general thrust of the Law of Commissions proposals for statutory reform and codification of the law of double jeopardy but believed Law
Commissions approach had led been unduly cautious in ultimately limiting its main proposal to cases of murder.”8
Accordingly, Parliament began work on a revision of the double jeopardy rule beyond the Law Commissions original recommendations, through
3 Id.7.46.
4 The Modern Law Review (2002) Vol 65, 3. PAUL COMMENTARY
5 Law Comm’n, Double Jeopardy and Prosecution Appeals, 2001, Cm. 5048 at 6
6 Id. 1.18.
7 Home Department. Justice For All, 2002, Cm. 5563. 75 - 84
8 The Auld Report, October 2001, Ch 12. 2 examination of the Criminal Justice and Sentencing Bill in October 2002.
This resulted in the implementation of the governments proposals in White
Paper: Justice For All, determining the goal 9 of the reform as the
"rebalancing [of] the criminal justice system in favour of the victim.”10 The government sought to "remove the double jeopardy rule for serious cases,"11 intentionally broadening the scope of the exception beyond the recommendations of the Law Commission.
The Criminal Justice Act allows the Court of Appeal, under Part 10, to quash an acquittal on the basis of evidence that is both “new” and “highly probative”12The relaxation of the double jeopardy rule was to undergo reform through the amendment to list of qualifying offences and amendments to definition of new evidence. The UK provisions have resulted in one conviction as seen by R. v. Dunlop13 where a murder was acquitted following two trials and then admitted to the murder.
Originally pleading guilty to perjury, the defendant then pleaded guilty of murder after the Court of Appeal had set aside the murder acquittal. Though this was the first case to apply Part 10 of the CJA, the court concluded the act would
9 HOME DEPARTMENT, JUSTICE FOR ALL, 2002, Cm. 5563.
10Id. 1.
11 Id, 13.
12 Criminal Justice Act, 2003, c. 44, § 78
13 R. v. D. [2006] EWCA Crim 1354. 3 operate ‘particularly oppressively’ if applied to Dunlop 14 because he had confessed and pleaded guilty to perjury under belief that retrial was not an option. The retrospective application of the act, enforced in April 2005 meant “every living person ever acquitted of one of the twenty-nine designated serious offences will in principle become eligible for retrial and possible conviction and punishment."15
The application for retrial under chapter 63 and 65 has been introduced in an attempt to implement widespread justice in regards to criminal proceedings. The application for retrial may only be made with written consent of the Directors of Public Prosecutions. Part 10 accordingly, successfully contains sufficient provisions to safeguard against unfairness.
The amendments provided in the Criminal Justice Act 2003 codifying a
“new and compelling evidence” exception to the bar against double jeopardy in England and Wales has not only improved the UK’s criminal system of justice but also altered its basis allowing for a global change in views in regards to the principle plea of autrefois convict and autrefois
acquit.
Unfortunate for guilty defendants, the relaxation of the double jeopardy rule in England and Wales has successfully led to the prosecution applying to the Supreme Court for an order quashing an acquittal in
14 Double Jeopardy, 2009. SN/HA/1082
15Paul Roberts, Justice for All? Two Bad Arguments (And Several Good Suggestions) for
Resisting Double Jeopardy Reform, 6 INT'L J. EVIDENCE & PROOF 197, 198 (2002) 4 circumstances where, as with an application by the defence to the Court of
Criminal Appeal, it is alleged “that a new or newly discovered fact shows that there has been a miscarriage of justice”. False 16 acquittals had placed a strain upon the integrity of the justice system and the Parliaments decision to sweep away centuries of common law consensus through enacting the Criminal Justice Act and has accordingly challenged the conventional wisdom that autrefois principles provide a “bulwark against state oppression, instead portraying them as archaic protections for wrongly acquitted criminals”.17
16 Section 2(1)(b) of the Criminal Procedure Act 1993.
17 Notre Dame Law Review, Double Take: Evaluating Double Jeopardy Reform, Vol 85. Issue 2.
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