UK Law Articles
These articles are reproduced from old newspapers. Whether you are looking for old articles about the Lord Chancellor's Department, or trying to find stories on solicitors, judges or courts, the law teacher article database is here to help you. You will find these articles useful for writing your law essays, law dissertations and law coursework.
The Times
May 23 2000
David Pannick QC
Let's leave politics out of double jeopardy debate
The plea by William Hague and Ann Widdecombe on behalf of the Conservative Party for urgent reform of the double jeopardy rule fails to recognise the difficulty of the issue, and the need to await the report of the Law Commission. "If at first you don't succeed, try, try again" is not a slogan that any responsible observer of the legal system would adopt, however attractive it may sound to some voters.
The double jeopardy rule has been part of the common law since the 12th century, preventing the State from seeking to retry a defendant who has already been acquitted of the offence. In the United States Supreme Court in 1957, Mr Justice Black explained that the justification for the principle is that the State, "with all its resources and power", should not be allowed to make repeated attempts to convict an individual, "thereby subjecting him to embarrassment, expense and ordeal, and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty".
The possibility of reform was raised in February 1999 in the report of the Macpherson inquiry into the murder of Stephen Lawrence. The report suggested that "perhaps in modern conditions" the absolute principle "may sometimes lead to injustice", and that this should be reconsidered, possibly by the Law Commission.
Last July Jack Straw, the Home Secretary, asked the Law Commission to examine the matter. In October the Law Commission issued a detailed consultation paper setting out provisional proposals for reform of the law to allow for carefully defined exceptions to the double jeopardy rule. Ministers are sensibly awaiting the final report of the Law Commission before deciding what action should be taken.
The consultation paper rightly recognises that the considerations which justify the double jeopardy rule cannot outweigh competing factors in all circumstances. There are other values at stake, in particular the wish to ensure that guilty people do not escape punishment. Indeed, our law already recognises this principle in the Criminal Procedure and Investigations Act 1996, which allows for the reopening of an acquittal where it appears to be tainted by intimidation of a witness or juror.
An absolute double jeopardy rule is not required by fundamental human rights. Article 4 of the Seventh Protocol to the European Convention on Human Rights allows for a person to be tried for an offence for which he or she was previously acquitted "if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings which could affect the outcome of the case".
It is a difficult task to identify the circumstances in which a retrial should be possible after an acquittal. Addressing the Sunday morning viewers of GMTV or giving a political speech to the Police Federation do not impose the same rigorous standards of precision and balance as the drafting of legislation. There are a number of problems to be addressed.
First, what offences should be covered? The Law Commission's consultation paper proposed that the exception to double jeopardy should apply only to a "serious offence" for which the sentence was likely to be at least three years' imprisonment. A better view, I would suggest, is to allow for exceptions to double jeopardy only in relation to specific grave offences such as murder, manslaughter and rape.
Secondly, in what circumstances should double jeopardy be overridden? The consultation paper proposed that there would need to be new evidence which satisfied the court either that it was highly probable that a jury would convict, or made the court sure that a jury would convict. The latter option states an unrealistically high test. The Law Commission rightly added that its view was that new evidence should be considered only where it could not, with due diligence, have been adduced at the first trial.
More controversially, the Law Commission also suggested that the concept of new evidence should cover material which was not admissible at the first trial but has become admissible because of a change in the law. Such retrospective effect would be fundamentally unfair.
There are other matters to be considered, such as whether there should be a time limit on retrials (probably not, because abuse of process arguments would protect the defendant) and whose permission should be sought before a retrial may be held. (The consultation paper sensibly suggested the High Court, with a right of appeal to the Court of Appeal.)
These are complex issues. The Government is right to wait for the Law Commission's report. The debate illustrates yet again what lawyers refer to as the Michael Howard principle of criminal justice: law reform is too important to be left to Conservative politicians concerned about the double jeopardy of losing votes at by-elections and in the next general election.
- The author is a practising barrister and a Fellow of All Souls College, Oxford.
