THE DOUBLE JEOPARDY RULE
- Law Commission Consultation Paper No. 156
RESPONSE
From Shaun Spencer QC, 6 Park Square, Leeds
11 January 2000
Paragraph 29
1. I refer to Part XI - Prosecution Appeals. The report observes and I agree, that the existence of a prosecution right of appeal from an acquittal would involve no breach of Article 4 nor would it invoke any breach of the double jeopardy rule properly understood. The appeal would be part of the same process as the trial.
2. Surely then, (I address 11.3), to consider the double jeopardy rule (which involves the bringing of fresh proceedings) before considering the prosecution appeal issue is to place the cart well before the horse. I realise that this has been imposed by the Commission?s terms of reference.
Para 1.13
3. Nonetheless, matters should still be considered in the correct order. If there were to be a prosecution right to appeal, the need to:
(i) affirm; then,
(ii) fashion breaches in;
the double jeopardy rule may not arise.
4. By contrast, if upon consideration, there should be permitted no prosecution appeal, the case for a double jeopardy exception becomes itself so much the weaker. The former does less violence to principle, after all. If that were not permitted, the case against breaching the double jeopardy rule is a fortiori.
5. A prosecution appeal would be a novel thing. The common law has set its face against it. See Lord Halsbury in Cox v Hakes:
As
Your Lordships are here determining a question which goes very far beyond the merits of any particular case. It is the right of personal freedom in this country which is in debate; and I for one should be very slow to believe, except it was done by express legislation, that the policy of centuries has been suddenly reversed and that the right of personal freedom is no longer to be determined summarily and finally, but is to be subject to the delay and uncertainty of ordinary litigation so that the final determination upon that question may only be arrived at by the last count of appeal@.
[1890] 15 App Cas 506, 522. I make due allowance for the fact that this case predates 1907 (and therefore any statutory Defence appeal). The case was, however, cited with approval by the House of Lords in Benson v Northern Ireland Road Transport Board [1942] AC 520.
6. The stress which Lord Halsbury lays on personal freedom is no less relevant or apposite today than when his words were uttered over a century ago. The contrast between a principle and the Amerits of any particular case@ is also worth noting.
7. If there were to be a right of appeal granted to the Crown it would (in the context of this consultation document) be one founded on the appearance of new or fresh evidence. This could only be in the context of seeking a re-trial. The appeal would usually be out of time and leave would be required.
8. The concept of fresh evidence in an appeal is not a novel area. In the civil sphere the principles are as in Ladd v Marshall. In the criminal sphere the provisions are as set out in the Criminal Appeal Act 1968, Section 23.
9. The provision for a right to appeal where new evidence is discovered could be formulated, with modifications, from the Criminal Appeal Act. The evidence would need to be:
(i) credible; and
(ii) relevant.
Given the different burdens of proof it would not suffice that the new evidence might have affected the outcome before ordering a re-trial. I would suggest that the Court of Appeal would need to be satisfied Ato a high degree of probability@ that the new evidence would have produced a different outcome.
10. The Legal Aid/CDS position would need closely looking at. Take a murder case : over recent years legal aid on appeal is usually restricted to the junior who appeared at trial. To preserve the appearance of fairness, on a prosecution application for leave to appeal the Defence representation, if available, should be as at the trial.
SUMMARY
11. Consideration of the double jeopardy rule, before consideration of what the final trial process (including possible appeals) should be, puts the cart before the horse.
12. The foregoing is made clear by the paragraphs 1 and 2 of Article 4 of the 7th Protocol. Re-opening of a case should not arise until after Afinal@ acquittal or conviction.
13. I do not suggest in fact that there should be a prosecution right of appeal on the basis of new evidence. The overall principle is more important than the individual merits of particular cases.
14. If there were to be such a right it should be modelled around Section 23 of the Criminal Appeal Act, with appropriate amendments.
15. If the Crown did have a right to appeal the scope of which was as above, it is difficult to see circumstances in which a case could be made out for breaching the double jeopardy rule.
Paras 2 and 3
16. I endorse the main provisional proposal that the rule against double jeopardy should be retained. The rule is of respectable antiquity. It is adhered to by the major common law and Roman Law jurisdictions.
17. I agree with the justifications, so far as they go - in paragraphs 4.4 to 4.11 of the Report, namely:
(i) that a re-trial increases the risks of a wrongful conviction;
(ii) duplication of distress/anxiety of the trial process;
(iii) the need for finality;
(iv) the need to encourage efficient investigation.
18. It must not be ignored that there is a public financial interest in finality; not merely a Defendant=s interest in the finality of an acquittal. The resources of the police and the CPS are not small but they are finite. The cost of presenting the best available case - once - represents the amount for which the public as paying party can reasonably expect to be called upon. That together with the legal aid/CDS bill necessitated by the trial.
19. The point made - para 4.5 - is that successive re-trials would cause no financial difficulties for Defendants given the availability of legal aid. This must be viewed in the light of proposed legal aid changes from the LCD. The aim of the changes is to reduce the efficacy of Defence representation. Under the present dispensation Queens Counsel may and often will be authorised for eg:
Attempt murder
Conspiracy to murder
Incitement to murder
Rape (single or serial rapes)
Child abuse
viz just the sort of serious cases that would come within the scope of the proposed double jeopardy exception.
A reduced level of representation would be available on one of these proposed re-trials, compared with the original.
20. The effect of media influence must be considered. The possibility of re-opening acquittals raises the spectre of high profile campaigns to have acquittals challenged in particular cases. The history of the Lawrence case itself is most in point. Hence the reference to the Commission. The publicity generated by a campaign would be increased if a re-trial was ordered. The publicity would be prejudicial to the Defendant in a re-trial.
21. With all respect, the case for an exception to the rule is intellectually inconsistent. If the reasons for the rule are valid (the report so acknowledges) they are the same reasons that brook of no exceptions.
22. The proposition (para 5.23) that the public will be outraged if an acquitted Defendant cannot be re-tried where there is Athe emergence of cogent new evidence of an offence@, is doubtful.
23. I am concerned with the use of the expression Aemergence@ of new evidence (in para 5.23). Evidence does not usually Aemerge@ like green shoots in Spring. Someone normally goes looking for it or requisitions it, e.g. scientific investigations.
With the finality that the un-breached double jeopardy rule confers, there would be little point in seeking further evidence. The evidence would not be put to any use.
24. The double jeopardy rule has existed for a long time. In its history I have no doubt that matters will have come to light on a number of occasions indicating the existence of an acquitted Defendant=s guilt. It has not caused outrage. I have no doubt that the public has always accepted (i) the validity of the finality rule and (ii) the fact that it may produce the occasional hard case. The implication (para 14) that the existence of the rule undermines public confidence in the criminal justice system is ill-founded. By analogy, juries have always been able to accept the example of it being better that some guilty men escape rather than 1 innocent man be convicted. That is the price willingly paid for the law relating to burden and standard of proof.
25. Given the rarity of the occasions on which it is contemplated that the exception would be invoked, I would suggest the rarity itself makes the exception not worth the candle. Why do violence to principle for something, which will happen so infrequently?
SUMMARY
26. The self-same reasons which justify the double jeopardy rule dictate that it be maintained entire; not emasculated in the case of new evidence.
