Second bite at double jeopardy

One of the New Labour government’s anti-crime measures in the June 2001 Queen’s Speech is to end the ‘double jeopardy’ rule. This follows the recommendation of the UK Law Commission, which in March 2001 proposed changes to the law on double jeopardy, and on prosecution appeals against certain rulings by judges that result in acquittals.

These proposals are part of a well-established trend, in which the safeguards available to defendants in criminal proceedings have been steadily eroded, and the relationship between the individual and the state has been redefined – at the expense of the respect and autonomy accorded to the individual. Previous significant milestones along this road, in the UK, have been the erosion of the right of silence and the assaults upon the principle of trial by jury.

At present, the rule against double jeopardy, or the plea of autrefois acquit or autrefois convict, means that nobody can be tried twice for the same offence. It is the acquittal part, of course, that is most important. In effect, the prosecution has just one go. If you are acquitted, it cannot come back for a second bite.

Well, the prosecution cannot come back for a second bite on that precise charge. The rule has always been narrowly applied, so that, for example, it does not preclude using the same facts to prosecute a person for a different offence. The leading case in modern times is Connelly v DPP (1964), in which the House of Lords allowed the conviction of a man for robbery – although he had previously been acquitted of a murder which had been committed during the robbery. No new facts were alleged or new evidence called.

Narrow as it may be, the rule against double jeopardy is an important aspect of a broader doctrine, which allows the courts to prevent any abuse of process by the prosecution. The first breach in the ancient rule came in 1996. Since then a person who has been acquitted of an offence can be tried again, if that person is subsequently convicted of interfering with a juror or a witness in the proceedings which led to the acquittal.

The UK Law Commission recommended in March that there be a second exception: that ‘in murder cases only, the Court of Appeal should have power to quash an acquittal where there is reliable and compelling new evidence of guilt and a retrial would be in the interests of justice. This new exception would apply equally to acquittals which have already occurred’.

The UK Home Office asked the commission to report quickly, without appending a bill as is the normal practice. The commission agreed.

The report of the Law Commission puts the arguments for not interfering any further with the rule very fully and fairly, including the most important one:

‘The finality involved in the rule against double jeopardy (known by almost everyone, even if not by name) represents an enduring and resounding acknowledgement by the state that it respects the principle of limited government and the liberty of the subject. The rule against double jeopardy is, on this view, a symbol of the rule of law and can have a pervasive educative effect. The rule serves to emphasise commitment to democratic values.’

The report continues:

‘As Paul Roberts expressed it: “Double jeopardy protection is very imperfectly expressed in terms of fairness to the accused….It is more illuminating to think of double jeopardy as forming one, significant strand of the limits on a state’s moral authority to censure and punish through criminal law. A defendant is not pleading unfair treatment qua criminal accused when invoking the pleas in bar, but rather reminding the state – as the community’s representative, the community in whose name the business of criminal justice is done – of the limits of its power.…”’

The Law Commission report also rehearses the many other arguments against further interference with the rule:

— An acquitted defendant is entitled to be free from the distress and anxiety of fearing a further prosecution;
— The individual liberty and autonomy of the acquitted defendant would be significantly compromised if he or she had always to contemplate the risk of a further prosecution;
— The rule prevents improper conduct in the form of harassment, intimidation and oppression by the prosecuting authorities;
— The rule protects the emotional, practical and financial interests of third parties, such as the family and dependants, or employer, of acquitted defendants;
— The rule encourages diligence and probity in the investigation of crime, because the prosecuting authorities know they have only one chance;
— By the same token, the prosecution is more likely under the rule to present the whole case to the court;
— There may be wrongful convictions as a result of retrials, particularly perhaps where the defendant, because of the publicity surrounding murder cases, might not get a fair second trial.

The Law Commission has drastically narrowed the scope of the changes it is prepared to recommend from the provisional proposals it made in October 1999. It limits these latest proposals to murder cases.

But its arguments in support of changing the rule on double jeopardy at all are remarkably thin, in contrast to those against.

The commission’s first argument is a concern to ensure the accuracy of the outcome of criminal justice proceedings – a key aim of which is to convict the guilty and only the guilty. This aim is patently frustrated in those cases when fresh evidence emerges that points strongly or conclusively to guilt – for example, DNA evidence or even an admission by an acquitted defendant. The acquittal was obviously illegitimate, and as such a miscarriage of justice that should be revisited.

Secondly, the damage made to the credibility of the criminal justice system by the acquittal of manifestly guilty defendants is such a serious matter that, in the commission’s view, it overrides all the values implicit in the rule against double jeopardy.

There are really only these two arguments – apart from the interesting fact that the commission finds support for its recommendation in the European Convention of Human Rights. And these arguments just don’t stand up.

Nobody likes seeing a person they suspect of murder walk free, let alone listening to them boast that they got away with it. But the ‘accuracy’ standard is inappropriate. No system can be fully ‘accurate’. The issue always comes down to how high a price we are prepared to pay to make sure that guilty persons are convicted.

No doubt that, in the Law Commission’s words, the ‘spectre of public disquiet, even revulsion’ hovers over bad acquittals. But public disquiet and revulsion hovers over wrongful convictions too, and we have seen many of those.

Furthermore, as the commission acknowledges, many argue that the legitimacy of the criminal justice system depends upon such rules as the rule against double jeopardy. No evidence, or even argument, is advanced to justify the conclusion that dodgy acquittals are a greater threat to confidence in the criminal justice system than wrongful convictions – or, indeed, proposals to restrict further the rule against double jeopardy.

If the UK Law Commission’s proposal is adopted, we may well see acquitted defendants deservedly brought to book after the emergence of damning new evidence. Equally, on the evidence presented here, there may be a rise in wrongful convictions, or there may be a crisis of confidence in the criminal justice system as a result of this change.

However, one outcome is more or less certain. There will be an intangible, but real, sense that individual autonomy counts for less, and the power of the state and its public authorities counts for more than ever before. I wonder, is the UK government ‘thinking outcome’ here?

John Fitzpatrick is director of the Kent Law Clinic, the coauthor of Criminal Justice and the Human Rights Act 1998, Jordans, 2nd edition 2001 (buy this book from Amazon (UK) or Amazon (USA)), and a contributor to Morals of Legitimacy: Between Agent and System, Berghahn Books, 2001 (buy this book from Amazon (UK) or Amazon (USA))