DOUBLE JEOPARDY - Law Commission

1 The Law CommissionConsultation Paper No 156 DOUBLE JEOPARDYA Consultation PaperThe Law Commission was set up by section 1 of the Law Commissions Act 1965for the purpose of promoting the reform of the Law Commissioners are:The Honourable Mr Justice Carnwath CVO, ChairmanMiss Diana FaberMr Charles HarpumMr Stephen Silber, QCWhen this consultation paper was completed on 6 September 1999, ProfessorAndrew Burrows was also a Secretary of the Law Commission is Mr Michael Sayers and its offices are atConquest House, 37-38 John Street, Theobalds Road, London WC1N consultation paper is circulated for comment and criticism only. It does notrepresent the final views of the Law Law Commission would be grateful for comments on this consultationpaper before 31 January 2000. All correspondence should be addressed to:Mr R PercivalLaw CommissionConquest House37-38 John StreetTheobalds RoadLondon WC1N 2 BQTel:(020) 7453-1232 Fax: (020) 7453-1297It may be helpful for the Law Commission , either in discussion with othersconcerned or in any subsequent recommendations, to be able to refer to andattribute comments submitted in response to this consultation paper.

2 Anyrequest to treat all, or part, of a response in confidence will, of course, berespected, but if no such request is made the Law Commission will assume thatthe response is not intended to be text of this consultation paper is available on the Internet at: can be sent by e-mail to: LAW COMMISSIONDOUBLE JEOPARDYCONTENTS[PLEASE NOTE: The pagination in this Internet version varies slightlyfrom the hard copy published version. Otherwise, the paragraphreferences, and of course the text, are identical. For convenience, it iseasier in most cases to refer to the paragraph numbers.]ParagraphPagePART I: INTRODUCTION1 The background to the implications of human rights scope of this structure of this of main II: THE PRESENT LAW OF DOUBLEJEOPARDY7 The autrefois in law and need for a valid acquittal or to the autrefois to the House of following appeal against of Connelly circumstances Elrington III.

3 THE SIGNIFICANCE OF HUMANRIGHTS LAW15 The approach of other Council of Europe Member concept of res a final acquittal or conviction 17 The International Covenant on Civil and Political Rights 18 The European Convention on Human Rights 18 The scope of Article 4(1)Final acquittal or conviction 19 Prosecution for same offence 20 The scope of Article 4(2) 22 English law and the ECHR compared 23 DOUBLE JEOPARDY permitted by English law but not by the ECHR 23No acquittal or conviction 24 Acquittal or conviction invalid 25 Retrial after appeal against conviction 25 Tainted acquittals 26 DOUBLE JEOPARDY permitted as an exception to the Connellyprinciple 26 DOUBLE JEOPARDY permitted by the ECHR but not by

4 English law 26 Different offence 27 Evidence of new or newly discovered facts 27 Fundamental defect in the previous proceedings 27 Conclusion 28 PART IV: THE SCOPE OF THE RULE AGAINSTDOUBLE JEOPARDY 29 The justifications for the DOUBLE JEOPARDY rule 30 The risk of wrongful conviction 30 The distress of the trial process 30 The need for finality 31 The need to encourage efficient investigation 32 Conclusions 32 The current law 32A statutory rule

5 33 PART V: NEW EVIDENCE 34 The issue 34 Can new evidence ever justify a retrial for the same offence? 35 The strongest case 36 The justifications for the rule 37 The risk of wrongful conviction 37 The distress of the trial process 37 The need for finality 38vParagraphPageThe need to encourage efficient investigation 38 Conclusion 39 The terms on which reopening might be permitted 39 The seriousness

6 Of the offence 39 The strength of the evidence 42 Two kinds of strength: reliability and relevance 42 Assessing the strength of the new evidence 42 Independent strength 42 Additional strength 43 Overall strength 44 Private prosecutions 45 Evidence not available for the first trial 46 The interests of justice 47A time limit 48

7 Successive retrials 50 The appropriate procedureThe nature of the hearing 50 The appropriate court 51A right of appeal 51 New evidence relating to a different offence 52 PART VI: FUNDAMENTAL DEFECT IN THEFIRST TRIAL 55 The nature of fundamental defect and tainted acquittals 55 The justification for the procedure 56 The scope of the exception 56 The objects of the interference or intimidation 56 The necessity for a conviction of an administrationof justice offence 57 The requirement that the acquittal be secured by theinterference or intimidation 58 The definition of

8 Administration of justice offence 59 The interests of justice test 60 Additional safeguards 60 The procedure 61 The absence of an oral hearing 62 Article 6 63 The application of Article 6 63 The requirements of Article 6 64 The alternative existing procedure and Article 6 65viParagraphPageProposals on the procedure 66 PART VII: THE ROLE OF JUDICIAL DISCRETION 67 The Connelly principle 67 Abuse of process 68 PART VIII.

9 THE RULE AGAINST CHALLENGINGA PREVIOUS ACQUITTAL 69 The rule 69 The basis of the rule 72 DOUBLE JEOPARDY cases 73 Sambasivam and autrefois acquit 73 Sambasivam and the Connelly principle 74 Cases not involving DOUBLE JEOPARDY 75 Justifications for the rule 76 The limitations of issue estoppel 78 Acquittals secured by fraud 79 New evidence 79 Issues and evidence 80 Conclusion 81 PART IX.

10 ACQUITTAL AND CONVICTION 83 Narrowing the concept of an acquittal or conviction 83 Delaying the point in proceedings at which the rule applies 83 Acquittal or conviction in another jurisdiction 85 Extending the concept of an acquittal or conviction 87 Outcomes which arguably should count as an acquittal 88 Outcomes which arguably should count as a conviction 88 Conclusion 89 PART X: RETROSPECTIVE EFFECT 90 The principle 90 Procedural change 91 The ECHR 91 English law 91 The desirability of retrospective effect 92viiParagraphPagePART XI: PROSECUTION APPEALS 94 PART XII: PROVISIONAL PROPOSALS ANDCONSULTATION ISSUES 95 APPENDIX A.