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The Times
October 12 1999
Stephen Silber QC
Why the double jeopardy rule should be retained
After the murder of Stephen Lawrence, five men were charged with murder. The case against them failed. An inquest was held later and its jury returned a verdict that Stephen Lawrence was "unlawfully killed in a completely unprovoked racist attack by five white youths".
Jack Straw, the Home Secretary, set up an inquiry, and one of the matters considered by the inquiry team was whether a second prosecution could be brought against those who had been previously charged with Stephen's murder. The report of the inquiry contained a recommendation that consideration should be given to the Court of Appeal being "given power to permit prosecution after acquittal where fresh and viable evidence is presented".
In July 1999 the Home Secretary asked the Law Commission to consider the rules of double jeopardy after acquittal in the light of this recommendation. Our task was to look at this as a matter of law reform, and not to comment on the facts of the Stephen Lawrence case itself or whether there should be a second prosecution of those accused of murdering him.
The double jeopardy rule prevents a person being tried a second time when they have already been acquitted or convicted of the same offence in relation to the same facts. It dates back to the time when, after the murder of Thomas à Becket, the king finally agreed that clergymen could not be prosecuted in the king's courts if they had already been tried in the ecclesiastical courts.
Times have changed since then, but our provisional proposal in our consultation paper published today (Double Jeopardy - Law Commission Consultation Paper 156) is that the rule against double jeopardy should be retained. It ensures finality for those facing criminal charges, and so protects defendants from the further serious distress that would be caused by a second trial. The rule also encourages efficiency in the investigation and prosecution of offences, while avoiding the danger that repeated trials might make wrongful convictions more likely.
There are already a number of exceptions to the rule, such as that a retrial can be ordered after a conviction has been set aside because of a misdirection by a trial judge.
We focused our attention on whether it should be possible to reopen an acquittal in a case of very strong new evidence. For example, a defendant to a rape charge puts forward an alibi and is acquitted. Before the first trial, some body fluid had been found which unquestionably comes from the rapist but is too small to permit DNA analysis. After the trial a new DNA test becomes available which makes it possible to analyse much smaller quantities of biological material than had formerly been the case. This technique is used to identify the rapist's body fluid as coming from the defendant.
Our provisional view is that it should be possible to reopen an acquittal in such a case provided that four requirements are satisfied. First, the new evidence should make the prosecution's case substantially stronger than it was at the first trial and, overall, there should be at least a very high probability of a conviction at the retrial. Second, if the defendant were convicted of the offence alleged, the sentence on a plea of not guilty would be a minimum of three years' imprisonment. Third, the new evidence could not, with reasonable diligence, have been adduced at the first trial. Finally, the court has to be satisfied in all the circumstances of the case that it would be in the interests of justice to allow a retrial.
This new exception would contain many safeguards for defendants. We also believe that the decision whether to allow retrial on grounds of new evidence should be taken by the High Court with a right of appeal to the Criminal Division of the Court of Appeal.
The other situation in which we would propose that there could be a new trial after an acquittal is after there has been an interference with the course of justice in the first trial. There already exists an exception to the double jeopardy rule where a subsequent conviction for perverting the course of justice or another administration of justice offence indicates that an acquittal was "tainted" by interference with, or intimidation of, witnesses or jurors. Our provisional view is that this exception should be extended to cover judges or magistrates.
More importantly, we also take the view that, before permission is given for a new trial, the court should have to be satisfied that an administration of justice offence has been committed but there should be no need for an actual conviction; so, if, for example, the person responsible for the interference or intimidation has died, this should not prevent a second trial if the evidence of interference is strong.
Again, we believe that there should be safeguards for defendants, such as the requirement of a hearing to determine whether there should be a second trial, held in open court with both sides represented.
We would be grateful for views on our consultation paper and they should be sent to this Commission by January 31, 2000. The consultation paper is available on the Law Commission website at: www.open.gov.uk/lawcomm/homepage.htm (UPDATE 07/02/08 - this site no longer exists) or through The Stationery Office at £24.
- The author is a member of the Law Commission.
