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Abstract
Section 75 of the Criminal Justice Act (CJA) of 2003 overturned the principle in English law that a person cannot be retried for an offense of which he has been acquitted, recognizing advances in forensic science that uses modern analysis of DNA in adducing in evidence. The special plea of autrefois acquit can be overturned based on finding of compelling evidence after a previous acquittal of a suspect who can now be tried again for the same offense. The double jeopardy arises only after a lawful acquittal or autrefois convict of the accused for the first offense and these principles have allowed exceptions to the rule against double jeopardy developed by the courts. There is an analogous rule in common law courts based on the unreasonable splitting of the case when there is a severing of indictments which overrides the bar on the accused being retried for the same offense. This paper examines the difficulty of trying a defendant fairly in the English courts when the defense has pleaded an abuse of process and there is no clear overall argument for trial. This question needs an appraisal of legal ethics in criminal courts because a retrial of the accused on the same charge breaches the autrefois acquit doctrine, and severing of an indictment can cause the fair trial process to be undermined.
Notes
[Disclosure Statement: No potential conflict of interest was reported by the author(s).]
1 Part 9 of the Criminal Justice Act 2003 gives the prosecution a right of appeal in circumstances where a judge makes either a ruling in relation to a trial on indictment, as a result of which the prosecution is terminated, either by way of an acquittal, or by reason of a stay, or by an order that the charge be “left on the file.” CJA 2003 Sections 58 and 74 (definition of “ruling”). Criminal Appeal Act 1968, Section 31.
2 Article 4, Protocol 7 (1): “No one shall be held guilty of any criminal offense on account of any act or omission which did not constitute a criminal offense under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offense was committed. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations” (2).
3 Ancient Greco-Roman precepts can be traced to one of the earliest known references: “The law of Athens was that once tried, a person could not be re-prosecuted on the same charge.” Demosthenes, 569.
4 Coffey, “A History of the Common Law,” 256.
5 Digest of Justinian, XV11.
6 Friedland, Double Jeopardy, 6.
7 Scott, The Civil Law, 17.
8 Stephen, A History of English Criminal Law, 49.
9 Thorpe. Ancient Laws and Institutes of England, 393–5.
10 Holdsworth, A History of English Law, 108–10.
11 Pollock and Maitland, The History of English Law, 446.
12 Duggan, “The Becket Dispute and the Criminous Clerks,” 4.
13 Pollack and Maitland, The History of English Law, 448.
14 Blackstone, Commentaries on the Laws, 329.
15 The Stephen Lawrence Inquiry, Para 38.
16 R v. Dobson and Norris (2011) EWCA Crim 1256.
17 There are a set of Qualifying offenses under Section 75, listed in Part 1 of Schedule 5 to the CJA.
18 White Paper Justice for All, Home Office, CM 5663. This report preceding the CJA stated “It was to apply to acquittals which took place before the law was changed, as well as those that happened afterwards.” Paragraph 4.66.
19 “First, the plea of autrefois acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life for more than once for the same offense and hence it is allowed as a consequence that when a man is once fairly found not guilty upon any indictment or other prosecution, before any court having competent jurisdiction of the offense he may plead such acquittal in bar of any subsequent accusation for the same crime.” Blackstone, Commentaries, 335, excerpted by Lawrence Newman, “Double Jeopardy and the Problem,” 252.
20 Section 76 of CJA.
21 The Crown cannot circumvent the rule by “describing the same facts in a different manner.” Reid and Miller, A Mixed Legal System in Transition, 164.
22 The rule against double jeopardy is only lifted once in respect of each qualifying offense: even if there is a subsequent discovery of new evidence, the prosecution may not apply for an order quashing the acquittal and seeking a retrial section 75(3).
23 Prior to the CJA there were three circumstances in which an apparently valid conviction or acquittal may be followed by a further trial for the same offense: prosecution appeal, retrial following appeal against conviction, and tainted acquittals.
24 Criminal Justice Act 2003, Section 79, Explanatory Notes, Interests of Justice, Para 322. Available at https://www.legislation.gov.uk/ukpga/2003/44/notes/division/4/10/5.
25 Schedule 5 of Section 75 of the CJA 2003 allows for a retrial following the Defendant's acquittal, in cases following accusations of Murder and Attempted Murder; Manslaughter; Kidnapping; and Arson, Endangering life or property.
26 Part 10, Section 41.
27 [1964] AC 1254.
28 Lord Morris, 1306.
29 Ibid., 1298.
30 Ibid., 1298–9.
31 Ibid., 1300–1.
32 Ibid., 1301.
33 Ibid.
34 Ibid., 1339.
35 Ibid., 1339–40.
36 Ibid.
37 Ibid.
38 Ibid., 1340.
39 Ibid.
40 Ibid.
41 Ibid., 1351.
42 Ibid., 1360.
43 [1977] AC 1.
44 Ibid., 46.
45 Ibid.
46 [1997] EWCA Crim 714.
47 Ibid., 366 E.
48 [1861] 1 B & S 688; 121 ER 170.
49 Ibid., 696.
50 Ibid.
51 Ibid., 366 E–F.
52 [2014] EWCA Crim 1971.
53 Para 25.
54 Ibid.
55 [2020] EWCA Crim 1319.
56 [2012] EWCA Crim 10.
57 Ibid., 60.
58 Ibid.
59 Ibid., 81.
60 R v. Beckford [1996] 1 Cr App R 94.
61 McNamara and McNamara [1998] Crim LR 278.
62 R v. Bloomfield [1997] 1 Cr App R 135; Townsend, Dearsley and Bretscher [1997] 2 Cr App R 540.
63 Regina v. Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42.
64 R v. Crown Court at Norwich, Ex parte Belsham [1992] 94 Cr App R 382; Gin (George Tan Soon) v. Cameron [1992] 2 AC 205, for a different result see R v. Telford JJ, ex parte Badhan [1991] 2QB 78.
65 R v. Hui Chi-Ming [1992] 1 AC 34, 57.
66 [1950] AC 458.
67 At 479.
68 [1983] 77 Cr App R 70.
69 R v. Hay [1860] 175 E.R. 933.
70 [1977] AC 1.
71 There is a limited exception in the case of an application for habeas corpus: Governor of Brixton Prison, Governor of Brixton Prison, ex p Osman [1991] 1 WLR 281.
72 Mirfield, “Shedding a Tear for Issue Estoppel,” 336. Also, see Andrews and Hirst, On Criminal Evidence, 761.
73 Hirst, “Contradicting Previous Acquittals,” argues that counsel for Humphrys did not rely on the rule in Sambasivam, because the House of Lords might have adopted a different approach, 510–525.
74 [1982] AC 529.
75 541H–542F, 544A–B, 545A, D–546A.
76 Hunter v. Chief Constable of the West Midlands Police [1982] AC 529. At 541 H.
77 Peter Mirfield bases his argument for the recognition of issue estoppel in criminal law on twin prerequisites: that of avoiding double jeopardy and that of finality. He argues “Estoppel, like other exclusionary rules, is an obstacle to the discovery of truth and therefore needs justification on grounds of policy”. “Shedding a Tear for Issue Estoppel”. CLR, 336 (1980): 336–37.
78 Several common law jurisdictions have followed the United Kingdom's lead. Since 2003 New South Wales, Queensland, and South Australia have passed some variant of the “new and compelling” evidence exception to the double jeopardy rule. These undertake to balance the rights of defence and prosecution, and to place the victim at the center of the criminal justice system. Hamer, “The Expectation of Incorrect Acquittals,” 63.
79 In Green v. United States (1957) 355 US 184. Black J. Held: “The underlying idea, one that is deeply ingrained in at least the Anglo-American systems of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, 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,” 187–8.
80 284 US 299 (1932).
81 Ibid., 303–4.
82 Ibid.
83 Ibid.
84 Cf. Harris v. Oklahoma, 433 U.S. (1977) (per curiam): “When … conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one,” 682.
85 Brown v. Ohio, 432 U.S. (1977): “Whatever the sequence may be, the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense,” 161, 169; see also McIntyre v. Caspari, 35 F.3d 338, 344 (8th Cir. 1994), holding that, as first-degree tampering was a lesser-included offense to stealing under Missouri law, a conviction for the formerly barred prosecution for the latter. The court established that the test whether the two charges against a defendant relate to the same offense is the “additional element test,” 344. The Supreme Court stated that after examining the nature of the two offenses, if it was clear that there was an additional element which had to be proved in relation to one of the charges, then the doctrine of double jeopardy did not apply as the charges related to different offenses and the individual could therefore be properly prosecuted in relation to both.
86 495 US 508 (1990).
87 Justice Brennen held that “a strict application of the Blockburger test is not the exclusive means of determining whether a subsequent prosecution violates the Double Jeopardy Clause,” 519–20.
88 509 US 688 (1993), 91–1231.
89 Coffin, “Double Take: Evaluating Double Jeopardy Reform,” 771–808.
90 DPP v. Humphrys, [1977] A.C. 1 (H.L. 1976). House of Lords rejected the doctrine of criminal collateral estoppel.
91 397 US 436 (1970).
92 Ibid., 442–5.
93 Ibid., 437–8.
94 Ibid., 438.
95 Ibid., 439.
96 Ibid., 440.
97 Ibid., 440. “For example, two witnesses who at the first trial had been wholly unable to identify the petitioner as one of the robbers, now testified that his features, size, and mannerisms matched those of one of their assailants. Another witness who before had identified the petitioner only by his size and actions now also remembered him by the unusual sound of his voice.”
98 Ibid.
99 Ibid., 444.
100 Ibid. quoting Mayers, Fletcher, and Yarbrough, “Bis Vexari,” 38–9.
101 Ibid., 445.
102 Ibid.
Additional information
Notes on contributors
Zia Akhtar
Zia Akhtar holds a Master’s degree in law from London University. He is a member of Gray’s Inn, and a Ph.D. candidate at Coventry University specializing in criminal law and legal ethics.