Double jeopardy

In the wake of the Stephen Lawrence case convictions, this article explores ‘double jeopardy’.

Double jeopardy means that you can not be tried twice for the same offence. There are good reasons for this, some of which are listed below:

It may be considered manifestly unfair to the alleged victim who is presumed innocent until proven guilty, the test usually being beyond all reasonable doubt;

It may be considered an abuse of process to re-consider or introduce new evidence, when Authoritative or Regulatory bodies should, frankly, have got their act together, and their evidence in place with one proverbial bite at the cherry being the Trial;

It may be considered an abuse of administration of justice where high costs are spent, and Court time has been taken up. Moreover the victim and the victim’s family should expect the Prosecution to have all evidence in place;

Natural Laws of Justice ought to apply. Justice must be seen to be done. Certainty and clarity should be what in Law we strive for. Without it, we have potential despair, and possible chaos looming;

A fair trial may be impossible given previous publicity, and length of time since the first offence;

The Criminal Justice Act 2003 (‘the 2003 Act’), changed the double jeopardy rule.

Section 75 of the 2003 Act allowed for a retrial following the Defendant’s acquittal, which includes the following offences:

  • Murder and Attempted Murder;
  • Manslaughter;
  • Kidnapping;
  • Arson, endangering life or property

The Prosecution must in the first instance apply to the Court of Appeal seeking an Order quashing acquittal of the Defendant, and providing for the Defendant to be retried for that particular offence.

The Director of Public Prosecutions must consent to such an application.

There are 2 tests to be met in order to prosecute a defendant for a second time:

There must be ‘new and compelling’ evidence: The evidential test, Section 78 of the 2003 Act. That new evidence should not have been adduced when the Defendant was acquitted, and that evidence must be reliable, substantial, and highly probative against the Defendant.

The second test relates to the interests of justice, which is set out at Section 79 of the 2003 Act. The Court of Appeal has to consider a number of matters including, but not limited to:

  • The nature and seriousness of the offence;
  • The heinousness of the alleged crime committed;
  • Whether a fair trial is likely;
  • The length of time passed since the offence was allegedly committed;
  • Whether new evidence could have been adduced at the initial Trial;
  • Whether the Police or the Prosecution failed to act with due diligence or expedition;

As we well know, the quality, methods, and procedure of obtaining evidence, and investigating objects and articles forensically, has significantly evolved and developed particularly since the Lawrence case.

The writer believes that exceptions to the rule of double-jeopardy is necessary, but it has to be weighed carefully against the rights of an acquitted Defendant as against the seriousness of the crime and impact to the victim and their family.

The fact that in the Stephen Lawrence case those who have since been convicted, gloated and boasted generally about committing racist crimes, eased the consciousness of right-thinking society to vilify them. I wonder if such evidence had not been adduced, whether polite society would have been so amenable to convictions based on forensic evidence found, which had not been previously discovered because forensics had yet to evolve, or alternatively they were simply missed, rather than evidence over the years may have become contaminated.

No doubt there will be an Appeal which will hopefully further clarify the exceptions to double-jeopardy.

David Rosen is a Solicitor-Advocate, Partner and head of Litigation at Darlingtons Solicitors, and a visiting associate Professor of Law at Brunel University.