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Retrying the Acquitted in England, Part
I: The Exception to the Rule Against
Double Jeopardy for "New and
Compelling Evidence"
DAVID S. RUDSTEIN*
TABLE OF CONTENTS
1. IN TRO DUCT IO N .................................................................................................. (^) 3 8 8 I1. THE CRIM INAL JUSTICE A CT 2003 ..................................................................... 392 I11. THE DOUBLE JEOPARDY PRINCIPLE .................................................................... 398 A. H istory ..................................................................................................... 3 9 8 B. Policies Underlying the Rule Prohibitinga Retrial Following an A cquittal ............................................................................ 403 1. Preservingthe Finalityof Judgments ............................................... 405 2. M inimizing PersonalStrain .............................................................. 408 3. Reducing the Risk of an Erroneous Conviction ................................. 411 4. Protectingthe Power of the Jury to Acquit Against the E vidence ......................................................................... 4 14 5. EncouragingEfficient Investigation and Prosecution ...................... 415 6. ConservingScarce ProsecutorialandJudicial Resources ................ 416 7. PreventingH arassment ..................................................................... 4 16 8. Maintainingthe Public's Respect and Confidence in the L egal System ............................................................................... 4 17
- Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology;
B.S., University of Illinois, 1968; J.D., Northwestern University, 1971; LL.M., University of Illinois, 1975. I would like to thank my colleagues at the Oxford Round Table in Criminal Law, held in March of 2006 at Pembroke College, Oxford, England, for their valuable comments on an earlier draft of this article.
IV. THE EXCEPTION FOR "NEW AND COMPELLING EVIDENCE ........................ 418 A. The P roblem ............................................................................................ (^) 4 18 B. Will the Exception for "New and Compelling" Evidence Lead (^) to More Accurate Outcomes or to Convictingthe Innocent? ................................................................................................. 430 C. The Exceptionfor "New and Compelling Evidence" and the Remaining Policies Underlying the Rule Prohibitinga RetrialFollowing (^) an Acquittal .......................................... 442 V. C ON CLUSION ............................................................ 456
I. INTRODUCTION
More than 240 years ago, Sir William Blackstone, perhaps the most important commentator on the English common law, wrote that "when a man is once fairly found not guilty upon any indictment, or other prosecution, before any court having competent (^) jurisdiction of the offence, he may plead such acquittal in bar of any subsequent (^) accusation for the same crime."' This plea of autrefois (^) acquit (a former acquittal), Blackstone (^) explained, is based upon the principle that "no man is to be brought into^ jeopardy^ of^ his^ life,^ more^ than^ once^ for^ the^ same^ offence,",
2
which he called a^ "universal^ maxim^ of^ the^ common^ law^ of^ England.",
3
Yet, notwithstanding this long-established principle 4 barring "double
- WILLIAM (^) BLACKSTONE, 4 COMMENTARIES ON THE LAW OF ENGLAND *335. Today, in practice, such second prosecutions are not brought and so do not reach court. SELECT COMMITTEE ON HOME AFFAIRS, THIRD REPORT, THE DOUBLE JEOPARDY (^) RULE, 2000, H.C., 6 (Eng.) [hereinafter SELECT COMMITTEE ON HOME AFFAIRS, THIRD REPORT]. At the time Blackstone wrote his monumental treatise on the common law, a statute existed allowing the wife or male heir of a homicide victim to bring a private prosecution, known as an "appeal," against the alleged killer despite that individual's previous acquittal in a prosecution (^) brought by the King for the same killing. [1487] 3 Hen. 7, c. 1 (Eng.). The statute was of little practical significance, however, because by the early part of the eighteenth century prosecution by appeal was "all but practically obsolete." I JAMES FITZJAMES STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 247 (London, MacMillan 1883); (^) see also BLACKSTONE, supra, at *312 (stating that prosecution by appeal is "very little in use"). Parliament formally abolished prosecution by appeal in 1819. [1819] 59 Geo. 3, c. 46 (Eng.).
- 4 BLACKSTONE, supra note 1, at *335. Blackstone used the alternative spelling autrefoits acquit. In this article, I will use that spelling only when quoting from material using that spelling.
- Id. Blackstone also wrote that "the plea of autrefoits convict, or a former conviction for the same identical crime ... depends upon the same principle as the [plea of autrefoits acquit], that no man ought to be twice brought into danger of his life for one and the same crime." Id. at *336.
- The first recorded mention in English law of a person raising a plea of a former acquittal (^) to bar his prosecution for the same offense appears to have occurred in 1201. Sumerset (1201), in 2 PLEAS BEFORE THE KING OR His JUSTICES, 1198-1202, pl. 737 (Doris Mary Stenton ed., Selden Soc'y 1952) (holding null Goscelin's appeal, i.e., a private suit seeking punishment, against Adam de Rupe for killing Goscelin's brother
so, the statute creates a "revolutionary" new power in the Court of Appeal" and "extinguishes the centuries old common-law rule against double jeopardy,"' 2 hereby rescinding (^) "[p]erhaps the most fundamental rule in the history of double jeopardy jurisprudence." 3 In this article, I will discuss the wisdom of the statute in light of the policies underlying the protection against double jeopardy.1^4 The issue is an important one
"new (^) and compelling evidence" (^) exception created by the (^) statute. I intend to discuss the right of the government to appeal a directed verdict of acquittal in a subsequent article. The Criminal Justice (^) Act 2003 is the second recent statute enacted by Parliament allowing the retrial of a person for the same offense for which he previously was acquitted. In 1996, Parliament passed a statute permitting a second trial when the acquittal in the first trial was "tainted," that is, when it resulted from interference (^) with, or intimidation of, a juror, (^) witness, or potential witness. Criminal Procedure and Investigations Act, 1996, c. 25, §§ 54-57 (Eng.). I previously have written about the double jeopardy issue raised under the Fifth Amendment to the United States Constitution by allowing the retrial of an individual whose acquittal was obtained through fraud. See David S. Rudstein, Double Jeopardy and the Fraudulently-ObtainedAcquittal, 60 Mo. (^) L. REv. 607 (1995). I intend to focus on the English statute in a subsequent article.
11. In re D, [2006] EWCA (Crim) 828 [4] (Eng.), [2006] 2 Crim. App. 286, 289 (Eng.).
- Id.
- United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977). In the United States, such a statute would violate the Fifth Amendment's protection against double jeopardy, see infra text accompanying note 59. E.g., Smith v. Massachusetts, 543 U.S. 462, 467 (2005) ("[T]he Double Jeopardy Clause of the Fifth Amendment prohibits reexamination of a court-decreed acquittal to the same extent it prohibits reexamination of an acquittal by jury verdict."); Tibbs v. Florida, 457 U.S. 31, 41 (1982) (^) ("A verdict of not guilty, whether rendered by the jury or directed by the trial judge, absolutely shields the defendant from retrial.") (emphasis added); Bullington v. Missouri, 451 U.S. 430, 445 (1981) ("A verdict of acquittal on the issue of guilt or innocence is, of course, absolutely final.") (emphasis added); United States v. DiFrancesco, 449 U.S. 117, 129 (1980) ("'The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal'....") (emphasis added) (quoting Fong Foo v. United States, 369 U.S. 141, 143 (1962)); Sanabria v. United States, 437 U.S. 54, 75 (1978) ([T]here (^) is no exception permitting retrial once the defendant has been acquitted, (^) no matter how 'egregiously erroneous' the legal rulings leading (^) to that judgment might be.") (emphasis added) (quoting Fong Foo at 143 (per curiam); Burks v. United States, 437 U.S. 1, 16 (1978) ("[W]e necessarily afford absolute finality to a jury's verdict of acquittal-no matter how erroneous its decision .... ) (emphasis added and emphasis deleted); see generally DAVID S. RUDSTEIN, DOUBLE JEOPARDY: A REFERENCE (^) GUIDE TO THE UNITED STATES CONSTITUTION 103-32 (2004).
- The government relied upon the statute for the first time in late 2005 when it sought to retry William "Billy" Dunlop for the (^1989) murder of Julie Hogg, a crime for which he was acquitted in 1991. Press Release, Crown Prosecution Service, DPPRefers William Dunlop Case to Court of Appeal as First Under Double JeopardyLaw, Nov. 10, 2005, http://www.cps.gov.uk/news/pressreleases/archive/2005/158_05.html [hereinafter Crown Prosecution Service, Press Release 1] (announcing that the (^) Director of Public Prosecutions gave his consent for the Crown Prosecution Service to refer the case of William Dunlop to the Court of Appeal to decide whether Dunlop should be retried for the 1989 murder of Julie Hogg). Julie Hogg, a pizza delivery girl, disappeared from her home in Billingham, Teeside, England, on November 16, 1989. Nearly three months later, Ms. Hogg's dead body was discovered behind a bath panel in her home by her husband and mother. William "Billy" Dunlop, a local laborer and Ms. Hogg's former
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because there is movement in some other common law jurisdictions to
follow the lead of England and create a similar exception to traditional
double jeopardy^ principles.'^
5
boyfriend, was charged with Ms. Hogg's murder. Although fibers matching (^) a rugby shirt worn by Dunlop on the night of November 16 were found (^) on the blanket in which Ms. Hogg's dead body was (^) wrapped, and keys and a fob that belonged to Ms. Hogg and that bore Dunlop's (^) fingerprints were discovered concealed beneath the floorboards of Dunlop's home, two different juries failed to reach a verdict in the case. After (^) the second jury was discharged in 1991, the government formally offered no evidence and a judge acquitted Dunlop of the (^) murder. See R v. Dunlop, [2006] EWCA (Crim) 1354 [2], [9] (Eng.); R v. Dunlop, [2001] 2 Crim. App. (S) 133, 134-35 (2000) (Eng.); Crown Prosecution Service, Press Release /, supra; Adam Fresco, Murderer Makes Legal History in Double Jeopardy Case, TIMES (^) ONLINE, Sept. 11, 2006, http://www. timesonline.co.uk/article/0,,2-2352963,00.html. See also SPRACK, supra note 10, (^) § 21.38, at 373 ("In practice, if two juries have disagreed, the prosecution offer no evidence at the start of what would otherwise be the third trial, (^) and the judge enters a verdict of not guilty."). In 1999, while imprisoned for assaulting another former girlfriend and her new boyfriend, Dunlop confessed to a prison officer that he had killed Julie Hogg, admitting that to avoid conviction he had lied in his two trials. Dunlop, [2001] 2 Crim. App. (S) at 135; see also Dunlop, [2006] EWCA (Crim) 1354 at [10], [36]. He referred to the fact that he had confessed his guilt in letters he sent to a male friend, an ex-girlfriend, and to a nurse who had taken care of him in hospital, and in a statement (^) that had been prepared for use in family proceedings. Id. at [10], [36]-[39]; see also Dunlop, [2001] 2 Crim. App. (S) at 135. Police arrested Dunlop in October of 1999 on suspicion of perjury, and in an interview, he admitted that he had killed Ms. Hogg. Dunlop, [2006] EWCA (Crim) 1354 at [11], [31], [35], [39]. On April (^) 14, 2000, Dunlop pleaded guilty (^) to two counts of perjury based upon his testimony at his two murder trials, (^) and he was sentenced to two concurrent terms of six years' imprisonment to run consecutively to a seven-year sentence imposed in 1998 for assault. Dunlop, [2001] 2 Crim. App. (S) at 134-36; see also Dunlop, [2006] EWCA (Crim) 1354 at [12]. On November 10, 2005, the Director of Public Prosecutions, acting pursuant to the provisions of the Criminal Justice Act 2003, Criminal Justice Act, 2003, c. 44, § 76(4) (Eng.), gave his consent for the Crown Prosecution Service to refer Dunlop's case to the Court of Appeal to decide whether Dunlop should be retried for Ms. Hogg's murder. Crown (^) Prosecution Service, Press Release 1, supra; see also Dunlop, [2006] EWCA (Crim) 1354 at [2]; D, [2006] EWCA (Crim) 733 at [1]. Following a hearing, the Court of Appeal, on May 17, 2006, Crown Prosecution Service, Press Release 3, supra (^) note 6, quashed Dunlop's previous acquittal and held that he could be retried for Ms. Hogg's murder. Dunlop, [2006] EWCA (Crim) 1354 at [1]. On September 11, 2006, Dunlop pleaded guilty to Ms. Hogg's murder, Crown Prosecution Service, Press Release 3, supra note 6, and on October 6, 2006, a judge sentenced him to life imprisonment, (^) Press Release, Crown Prosecution Service, William Dunlop Sentenced in First Double Jeopardy Case, Oct. 6, 2006, http://www.cps.gov.uk/news/pressreleases/archive/2006/ 155 06.html [hereinafter Crown Prosecution Service, Press Release 4].
- (^) For example, in Australia, the Model Criminal Code Officers' Committee of the Standing Committee of Attomeys-General canvassed (^) a number of options for reform of the rule against double jeopardy, including (^) a procedure to allow the government to retry a previously-acquitted individual for the same, or a similar offense, when (^) fresh evidence arises. See Model (^) Criminal Code Officers' Committee of the Standing Committee of the Attorneys-General, Discussion Paper, MODEL CRIMINAL CODE, CHAPTER 2,
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attempted rape;
25 certain other sex offenses;2 6 certain drug offenses; 27
and arson endangering life. 28 The Court of Appeal can quash an acquittal
- Id. 3 ("An offence under section 4 of the Offences against the Person Act 1861 (c 100).").
- Id. 4.
- Id. 5.
- Id. 6 ("An offence under section (^1) of the Sexual Offences Act 1956 (c 69) or section 1 of the Sexual Offences Act 2003 (c 42).").
- Id. 7 ("An offence under section 1 of the Criminal Attempts Act 1981 of attempting to commit an offence under section 1 of the Sexual Offences Act 1956 or section 1 of the Sexual Offences Act 2003.").
- The offenses are: intercourse (^) with a girl under thirteen, id. 8 ("An offence under section 5 of the Sexual Offences Act 1956."); incest by a man with a girl under thirteen, id. 9 ("An offence under section 10 of the Sexual Offences Act 1956 alleged to have been committed with a girl under thirteen."); assault by penetration, id. 10 ("An offence under section 2 of the Sexual Offences Act 2003 (c 42)."); causing a person to engage in sexual activity without (^) consent, id. 11 ("An offence under section 4 of the Sexual Offences (^) Act 2003 where it is alleged that the activity caused involved penetration within subsection (4)(a) to (d) of that section."); rape (^) of a child under thirteen, id. 12 ("An offence under section 5 of the Sexual Offences Act 2003."); attempted rape of a child under thirteen, id. 13 ("An offence under section I of the Criminal Attempts Act 1981 (c 47) of attempting to commit an offence under section 5 of the Sexual Offences Act 2003."); assault of a child under thirteen by penetration, id. 14 ("An offence under section 6 of the Sexual Offences Act 2003."); causing a child under thirteen to engage in sexual activity, id. 15 ("An offence under section 8 of the Sexual Offences Act 2003 where it is alleged that an activity involving penetration within subsection (2)(a) to (d) of that section was caused."); (^) sexual activity with a person with a mental disorder impeding choice, id. 16 ("An offence under section 30 of the Sexual Offences Act (^2003) where it is alleged that the touching involved penetration within subsection (3)(a) to (d) of that section."); and causing a person with a mental disorder impeding choice to engage in sexual activity, id. 17 ("An offence under section 31 of the Sexual Offences Act 2003 where it is alleged that an activity involving penetration within subsection (3)(a) to (d) of that section was caused.").
- The offenses are: unlawful importation of a Class A drug, id. 18 ("An offence under section 50(2) of the Customs and Excise Management Act 1979 (c. 2) alleged to (^) have been committed in respect of a Class A drug (as defined by section 2 of the Misuse of Drugs Act 1971 (c 38))."); unlawful exportation of a Class A drug, id. 19 ("An offence under section 68(2) of the Customs and Excise Management Act 1979 alleged to have been committed in respect of (^) a Class A drug (as defined by section 2 of the Misuse (^) of Drugs Act 1971)."); fraudulent evasion in respect of a Class A drug, id. 20 ("An offence under section 170(1) or (2) of the Customs and Excise Management Act 1979 (c. 2) alleged to have been committed in respect of a Class A drug (as defined by section 2 of the Misuse of Drugs Act 1971 (c 38))."); and producing or being concerned in production of a Class A drug, id. 21 ("An offence under section 4(2) of the Misuse of Drugs Act 1971 alleged to have been committed in relation to a Class A drug (as defined by section 2 of that Act).").
- Id. 22 ("An offence under section 1(2) of the Criminal Damage Act 1971 (c
- alleged to have been committed by destroying or damaging property by fire."). Other qualifying offenses are: causing an explosion likely to endanger life or property, id. 23 ("An offence under section 2 of the Explosive Substances Act 1883 (c 3)."), and
and (^) order a new trial only upon the application of a prosecutor,^29 who must first obtain (^) written consent from the Director of Public Prosecutions. a° The Director of Public (^) Prosecutions may give such consent only if he or she is satisfied that there appears to be new and compelling evidence against the acquitted person with respect to the qualifying offense, 3 ' that it is in the public interest for the prosecutor to make the application, 2 and that (^) a new trial "would not be inconsistent with obligations of the United Kingdom under Article 31 or 34 of the Treaty (^) on European Union 33 relating to (^) the principle of ne bis in idem,"3 4^ that is, the legal
intent or conspiracy to cause such an explosion, id. 24 ("An offence (^) under section 3(1)(a) of the Explosive Substances (^) Act 1883."); genocide, crimes against humanity, and war crimes, id. 25 ("An offence under section 51 or 52 of the International Criminal Court Act 2001 (c 17)."); grave breaches of the Geneva Conventions, id. 26 ("An offence under section (^1) of the Geneva Conventions Act 1957 (c 52)."); directing a terrorist organization, id. 27 ("An offence (^) under section 56 of the Terrorism Act 2000 (c I 1)."); hostage-taking, id. 28 ("An offence under section 1 of the Taking of Hostages Act 1982 (c 28)."); and conspiracy to commit any of the (^) substantive qualifying offenses, id. 29 ("An offence (^) under section 1 of the Criminal Law Act 1977 (c 45) of conspiracy to commit an offence listed in this Part of this Schedule.").
- Criminal Justice Act, 2003, c. 44, § 77(l)(a) (Eng.). See also id § 77(3)(a) (with respect to acquittal rendered elsewhere than in the United Kingdom). Only one application may (^) be made in relation to an acquittal. Id. § 76(5). A prosecutor desiring to make an application to quash an acquittal must give notice of the application (^) to the Court of Appeal, id. § 80(1), and must serve notice on the person to whom (^) the application relates, charging the person with the offense to which it relates or, if the person already has been (^) charged in accordance with another section of the statute, stating that the person has been so charged, id. § 80(2). A prosecutor may apply for a determination whether an acquittal rendered outside the United Kingdom (^) bars the acquitted person from being tried in England and Wales for the "qualifying (^) offence" and, if it does, for "an order that the acquittal is not to be a bar." (^) Id.
§ 76(2).
- Id. § 76(3).
- (^) Id. § 76(4)(a).
- Id. § 76(4)(b).
- Consolidated Version (^) of the Treaty on European Union, December 24, 2002, 2002 O.J. (C 325) (^5) [hereinafter TEU], provides, inter alia, that "the Union's objective shall be to provide citizens with a high level of safety within an area of freedom, security and justice by developing common (^) action among the Member States in the fields of police and judicial cooperation (^) in criminal matters... " TEU art. 29. Article 31 of the Treaty provides: I. Common action on judicial cooperation (^) in criminal matters shall include: (a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States, including, where appropriate, cooperation through Eurojust [the European Judicial Cooperation Unit], in relation to proceedings and the enforcement of decisions; (b) facilitating extradition between Member (^) States; (c) ensuring compatibility (^) in rules in the Member States, as may be necessary to improve such cooperation; (d) preventing conflicts of jurisdiction (^) between Member States [as may be necessary to improve such cooperation];
Moreover, the Court of Appeal can quash an acquittal and order (^) a new trial only when, following (^) a hearing, 37 it is satisfied, first, that "there is new and compelling evidence (^) against the acquitted person in relation to the qualifying offence,, 38 and second, (^) that under the totality of the circumstances "it is in the interests of justice" to quash the acquittal and order a new trial. 39 For purposes of the statute, "[e]vidence is new if (^) it was not adduced in the proceedings in which the (^) person was acquitted"4^0 ; it is "compelling" (^) if it is "reliable,' "substantial, ' 2^ and "in the context of
as the double jeopardy principle "forbidding more than one trial for the same thing"). See generally Oehler, supra note 35, at 613-18. Article (^4) of Protocol 7 of the European Convention on Human Rights provides:
- No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction (^) of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of the (^) State.
- The provisions of the preceding paragraph shall not prevent the re-opening (^) of the case in accordance with the law and (^) penal procedure of the State concerned, 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... Protocol 7 to the Convention for the Protection (^) of Human Rights and Fundamental Freedoms, (^) art. 4, Nov. 22, 1984. European law thus expressly permits an appellate court to reopen a case in accordance (^) with the provisions of domestic law "if there is evidence of new or newly discovered facts." Although the United Kingdom has signed the protocol, (^) it has not yet ratified it. Nevertheless, the existence of the protocol shows that there (^) is no conflict between the Criminal Justice Act 2003 and European law. See R v. Dunlop, [2006] EWCA (Crim) 1354, [15] (Eng.). For a discussion (^) of the scope of Article 4, see LAW COMMISSION, REPORT NO. 267, supra, 3.10-3.21.
- Criminal Justice Act, 2003, c. 44, § 80(4) (Eng.). The person to whom the application relates has the right to be present at (^) the hearing, even though she may be in custody, unless she is in custody somewhere (^) other than in England, Wales, or Northern Ireland. Id. § 80(5)(a). In addition, the person has a right to be represented at the hearing, even if she is not present. Id. § 80(5)(b).
- Id. § 78(1).
- Id. § 79(1). If the Court of Appeal concludes that the two requirements are met, it "must make the order." Id. § 77(1)(a) (emphasis added); see also id. § 77(3)(a) (with respect to an acquittal somewhere (^) other than in the United Kingdom that would otherwise bar the trial of the acquitted person for the "qualifying offence"); id. § 77(4) (with respect to an acquittal (^) elsewhere than in the United Kingdom, if the Court of Appeal determines that the acquittal does not bar the person from being tried for the "qualifying offence, it must make a declaration (^) to that effect"). On the other hand, if the Court of Appeal is not satisfied (^) that the two requirements are met, it "must dismiss the application." Id. § 77(l)(b) (emphasis added); see also (^) id. § 77(3)(b) (with respect to an acquittal elsewhere than in the United Kingdom that would otherwise bar the trial of the acquitted person for the "qualifying offence," (^) the Court of Appeal must declare that the acquittal bars the person from being tried for the offense).
- (^) Criminal Justice Act, 2003, c. 44, § 78(2) (Eng.). If the proceedings in which the person was acquitted were appeal proceedings, the evidence also must not have been adduced "in earlier proceedings to which the appeal related." Id.
- Id. (^) § 78(3)(a).
- Id. § 78(3)(b).
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the outstanding issues,^43 it appears (^) highly probative of the case against the acquitted person."' aa^ In determining whether "it (^) is in the interests of
justice, 4 1 to quash the acquittal and order a new trial, the Court of
Appeal must pay particular regard to factors such as "whether existing circumstances make a fair trial unlikely"; 46 "the length of (^) time since the qualifying offence was allegedly committed";^4 7 "whether it is likely that the new evidence would have been adduced in the earlier proceedings against the acquitted person but for a failure by an officer or by a prosecutor 8 to act with due diligence or expedition ';^4 9 and (^) "whether, since those proceedings ... any (^) officer or prosecutor has failed to act with due diligence or expedition. 50 °^ With the leave of the Court of Appeal or the House of Lords, either the acquitted person or the prosecutor may (^) appeal a Court of Appeal^ decision^ to^ the^ House^ of^ Lords.
(^5 )
- "Outstanding issues" are those issues that were "in dispute in the proceedings in which the person was acquitted." Id. § 78(4). If those proceedings were appeal proceedings, they also include "any other issues remaining in (^) dispute from earlier proceedings to which the appeal related." Id. (footnote added).
- Id. § 78(3)(c). It is irrelevant (^) whether the evidence would have been admissible in earlier proceedings (^) against the person who was acquitted. Id. § 78(5).
- Id. § 79(1).
- Id. § 79(2)(a).
- Id. § 79(2)(b).
- Id.§ 79(2)(c). "Officer" "means an officer of a police force or a customs and excise officer," while "'prosecutor' means an individual or body charged with duties to conduct criminal prosecutions." Id. § 95(1). The terms include "a person charged with corresponding duties under the law in force elsewhere than in England and Wales." Id. § 79(3) (footnote added).
- Id. § 79(2)(c). If a person other than a (^) prosecutor conducted the earlier prosecution, see Prosecution of Offences Act, 1985, c. 23, §§ 1, 6 (establishing a prosecuting service for England and Wales, but expressly reserving, with certain exceptions, the right of a private individual to institute and conduct criminal proceedings); WILLIAMS, supra note 5, at 5; e.g., Hayter v. L, [1998] W.L.R. 854, 859 (Q.B.D.), the Court of Appeal must also consider the question "in relation to that person as well as in relation to a prosecutor." Criminal Justice Act, 2003, c. 44, § 79(4) (Eng.).
- Criminal Justice Act, 2003, c. 44, § 79(2)(d) (Eng.). If the acquittal occurred prior to the commencement date of the (^) statute, April 4, 2005, see supra note 7, the question is whether, since that date, "any officer or prosecutor has failed to act with due diligence or (^) expedition." Criminal Justice Act, 2003, c. 44, § 79(2)(d) (Eng.).
- Criminal Appeal Act, 1968, c. 19, § 33 (Eng.).
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European countries recognize the principle of ne bis in idem^56 (sometimes
stated as non bis in idem^57 ), which provides that a person should not be
prosecuted more than once for the same offense.^58 In the United States,
plead autrefois acquit. Nor can an individual whose court-directed acquittal was reversed on appeal under the provisions of the Criminal Justice Act (^2003) granting the government the right to appeal certain rulings of a trial court, including a directed verdict of acquittal. See supra note (^) 10. In addition to the autrefois rule, a special application of the "abuse of process" rules provides protection against double jeopardy. Lord Devlin articulated the applicable principle in Connellv: As a general rule a judge should stay an indictment (that is, order that it remain on file not to be proceeded with) when he is satisfied that the charges therein are founded on the same facts as the charges in a previous (^) indictment on which the accused has been tried, or form (^) or are a part of a series of offences of the same or a similar character as the offences charged in the previous indictment. He will do this because as a general rule it is oppressive to an accused for the prosecution not to Uoin the charges for trial in a (^) single proceeding] where it can properly [do so]. But a second trial on the same or similar facts is not always and necessarily oppressive, and there may in a particular case be special circumstances which make it just and convenient in that case. The judge must then, in all the circumstances of the particular case, exercise his discretion as to whether or not he applies the general rule. Connelly, [1964] A.C. at 1359-60; e.g., R v. Beedie, [1998] Q.B. 356, 360-61, 366 (CA
- (holding that although a landlord who previously had pleaded guilty to summary offenses under the Health and Safety at Work Act 1974 arising from a defective gas fire on his premises that resulted in the death of a resident from carbon (^) monoxide poisoning could not plead autrefois convict in a subsequent prosecution for manslaughter, because the two offenses were not the same, the manslaughter prosecution should have been stayed); see generally LAW COMMISSION, REPORT No. 267, supra note 36, 2.14-2.19.
- Fletcher, supra note (^) 36, at 770 (asserting that the ne his in idem "rule is recognised (^) in some form within the domestic legal systems of all the European Economic Area Member States"); Oehler, supra note 35, at 613 (asserting that in Europe, (^) "every state founded on constitutional principles acknowledges the principle (^) of ne bis in idem as a national maxim"); see (^) generally id. at 613-18.
- United States v. (^) Rezaq, 134 F.3d 1121, 1131 (D.C. Cir. 1998); e.g., Bassiouni, supra note 54, at 288.
- Conway, supra note 54, at 217 (stating that the maxim ne his in idem expresses "[t]he principle that a person should not be prosecuted more than once for the same criminal conduct"); Fletcher, supra note 36, at 770 ("The ne bis in idem rule ... states that no-one shall be prosecuted or tried twice for the same acts and for the same criminal behaviour."); ENGLISH LAW COMMISSION, REPORT No. 267, supra note 36, 1.13 n. (translating ne (^) his in idem as: "A person may not be prosecuted twice for the same thing."); see also BLACK'S, supra note 36, at 1077(defining non bis in idem as "[n]ot twice for the same thing," and stating that the maxim usually refers "to (^) the law forbidding more than one trial for the same offense"). The maxim sometimes is translated as "nobody should (^) be punished more than once (^) for the same offense." E.g., Oehler, (^) supra
note 35, at 613. Conway explains that "[t]he phrase is derived from the Roman law maxim nemo bis vexari pro una at eadem causa (a man shall not be twice vexed or tried for the same cause)." Conway, supra note 54, at 217 n.1, 221; see also BLACK'S, supra note 36, at
the Fifth Amendment to the Constitution provides that "[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb."5 9^ The Canadian Charter of Rights and Freedoms provides: "Any person charged with an offence has the right ... if finally acquitted of the offence, not to (^) be tried for it again, and if finally found guilty and punished for the offence, not to be tried or punished for (^) it again.. .,"60 while New Zealand's Bill of Rights Act provides: "No one who has been finally acquitted (^) or convicted of, or pardoned for, an offence shall be tried or punished for it again.,' 6 ' And the South African Constitution guarantees that "[e]very accused person has the right to a fair trial, which includes the right not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted...
1736 (translating the maxim nemo debet bis vexari pro una at eadem causa as "No one ought to be twice troubled for one and the same cause.").
- U.S. CONST. amend. V. This constitutional guarantee encompasses several protections: it bars a second prosecution for the same offense following an acquittal, e.g., Smith v. Massachusetts, 543 U.S. 462 (2005); Smalis v. Pennsylvania, 476 U.S. 140 (1986); it bars a second prosecution for the same offense following a conviction, e.g., United States v. Dixon, 509 U.S. 688 (1993); Harris v. Oklahoma, 433 U.S. 682 (1977) (per curiam); it forbids multiple punishments for the same offense in successive proceedings, Hudson v. United States, 522 U.S. 93, 99 (1997); Missouri v. Hunter, 459 U.S. 359, 366 (1983); and in some circumstances, it prohibits a second prosecution for the same offense following the premature termination of a trial because of the declaration of a mistrial, e.g., United States v. Jorn, 400 U.S. 470, 487 (1971) (plurality opinion); Downum v. United States, 372 U.S. 734 (1963), or the dismissal of the charge, see United States v. Scott, 437 U.S. 82, 99-100 (1978).
- Constitution Act, R.S.C., annexe B, part I, § 11(h)(1982).
- New Zealand Bill of Rights Act 1990, 1990 S.N.Z. No. 109.
- S. AFR. CONST. 1996 § 35(3)(m). For a discussion of the current law of double jeopardy in a variety of other countries, including Germany, Spain, and Italy, see LAW COMMISSION, CONSULTATION PAPER No. 156, supra note 54, App. B. The precise scope of the protection afforded an individual by the rule against double jeopardy may differ from country to country. For example, in the United States, a person is placed in "jeopardy" (i.e., jeopardy "attaches") at that point in a proceeding when he is "'put to trial before the (^) trier of facts,"' Serfass v. (^) United States, 420 U.S. 377, (^388) (1975) (quoting Jorn, 400 U.S. at 479) (plurality opinion)), so that under some circumstances the Double Jeopardy Clause prohibits a second trial of an individual for the same offense even if his first trial ended prematurely without a judgment of either conviction or acquittal, e.g., Jorn, 400 U.S. at 487 (plurality opinion) (concluding that the double jeopardy provision prohibited retrial following the trial judge's sua sponte declaration of a mistrial to allow several government witnesses the opportunity to consult with attorneys about their privilege against self-incrimination); Downum, 372 U.S. at 737-38 (holding that the double jeopardy provision prohibited retrial following the trial judge's declaration of a mistrial, at the prosecutor's request and over the defendant's objection, because of the absence of a key government witness); see generally RUDSTEIN, supra, note 13, at 43-73. In England, however, the protection afforded by the autrefois rule applies only following an acquittal or a conviction. Connelly v. DPP, [1964] A.C. 1254, 1305-06 (H.L.) (appeal taken from Eng.) (U.K.) (Lord Morris of Borth-y-Gest); ARCHBOLD, supra note 55, § 4-117; LAW COMMISSION, REPORT No. 267, supra note 36, 2.2, 2.47; WILLIAMS, supra note 5, at 164. On the other hand, a person charged with
against double jeopardy.^68 The principle apparently entered the English common law no later than the beginning of the thirteenth century,^69 perhaps from the Continent through either canon law or Roman law,^70 or perhaps as a result of the posthumous victory of Thomas A (^) Becket, the Archbishop of Canterbury, over King Henry II in the twelfth centur 7 power struggle between Henry and the Church. 7 I Regardless of its source, by the second half of the eighteenth century, the protection against double jeopardy, in the form of the pleas of autrefois acquit and autrefois convict, had become firmly entrenched in the common law.^73 In 1791, a guarantee against double jeopardy became part of the constitutions of both the United^ States
7 4^ and France. 75
- E.g., 5 LAS SIETE PARTIDAS 1309 (Samuel Parsons trans., Robert I. Bums ed.,
Univ. of Pa. Press 2001) ("Where a man has been acquitted, by a valid judgment, of
some offense of which he was accused, no one can afterwards charge him with the same
offense [except when he colluded in bringing the original charge and suppressed
evidence in order to obtain the acquittal]."); FUERO REAL, lib. iv, tit. xxi, 1. 13 (Azucena
Palacios Alcaine ed., PPU 1991) (1255) (^) ("Et si fidalgo lo fiziere a otro omne, o otro omne a fidalgo, o otros entre si que sean fijos dalgo non son por ent aleusos; si non si lo fizieren en tregua o en pleyto que ayan puesto uno con otro; ca el (^) pleyto de la amiztat antigua non fue fecho si non tan solamiente los fijos dalgo." (^) (translated in Kepner v. United States, 195 U.S. 100, 120 (1904), as: "After a man, accused of any crime, has been acquitted by the court, no one can afterwards accuse him of the same offense (except in certain specified (^) cases)."; accord Lebbeus R. Wilfley, Trial by Jury and "Double Jeopardy" in the Philippines, 13 YALE L.J. 421,424 (1904)).
- See supra note 4; see also Rudstein, (^) supra note 4, at 202-04. 70. See Rudstein, (^) supra note 4 at 205.
- See id. at 205-08. The (^) available evidence suggests that prior to Henry I1's capitulation in (^1176) the common law did not contain a protection against double jeopardy. Id. at 209-10. Even after Henry's capitulation, (^) it took hundreds of years for the protection to develop into its modern (^) form. Id. at 210-21.
- A third theory postulates (^) that the protection against double jeopardy "evolved from Anglo-Saxon criminal procedure as a practical and obvious procedural (^) assumption by the courts." Jill Hunter, The Development of the Rule Against Double (^) Jeopardy, 5 J. LEGAL HIST. 1, 3 (1984); see also Rudstein, supra (^) note 4, at 208-09.
73. 4 BLACKSTONE, supra note 1, at *335-36.
- U.S. CONST. amend. V, § 1 ("No person shall.., be subject for (^) the same offence to be twice put in jeopardy of life or limb."). For a discussion of the (^) protection against double jeopardy in America before the adoption of (^) the Fifth Amendment and the legislative events leading up to the ratification of the Double Jeopardy Clause of the Fifth Amendment, see Rudstein, supra note 4, at 221-32.
- 1791 CONST. tit. 1II, c. V, 9 ("No man acquitted by a legal jury can be taken or accused on account of the same act."), reprinted in CONSTITUTIONS AND OTHER SELECT DOCUMENTS ILLUSTRATIVE OF THE HISTORY OF FRANCE, 1789-1907, at 87 (Frank Maloy Anderson ed., 2d ed. 1908). The (^) principle continued to be recognized in the constitution of the year II1 (1795), 1795 CONST. tit. VIII, 253 ("No person acquitted by a legal jury can be re-arrested or accused of the same offence."), (^) reprinted in CONSTITUTIONS AND OTHER SELECT DOCUMENTS ILLUSTRATIVE OF THE HISTORY OF FRANCE, 1789-1907, supra, at 242; in the code of 3 Brumaire, year IV (1796), see Wilfley, supra note 68, at 424; and in the 1808 Napoleonic Code of Criminal Instruction (code d'instruction (^) criminalle),see id. Article 360 of the Napoleonic Code provided: "No person legally acquitted can be a second time arrested or accused by reason of the same act." Id.
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B. Policies^ Underlying^ the^ Rule^ Prohibitinga^ Retrial
Following an^ Acquittal
7 6
Prohibiting the government
7 7 from reprosecuting an individual for the
same offense following^ his^ trial^ and^ acquittal^
7 serves a number of related
- See generally RUDSTEIN, supra note^ 13,^ at^ 37-43.
- For the sake of convenience, I^ will^ discuss^ the^ rule^ against^ double^ jeopardy in terms of a limitation upon the government. I recognize that in England,^ a^ private individual can bring^ a^ prosecution,^ see^ supra^ note^ 49,^ and^ that^ the^ autrefois^ doctrine applies to such private prosecutions, e.g., SIR WILLIAM MACPHERSON^ OF^ CLUNY,^ THE STEPHEN LAWRENCE INQUIRY 2.3 (1999) ("Three of the prime suspects [in^ the^ unlawful killing of Stephen Lawrence] were taken to trial in 1996 in a private prosecution [for murder] which failed because of the absence of any firm and sustainable evidence. The trial resulted in the acquittal of all three accused. They^ can^ never^ be^ tried^ again^ in^ any circumstances in the present^ state^ of^ the^ law.")^ (emphasis^ deleted)^ [hereinafter MACPHERSON REPORT]; id. 43.47 ("The result of the unsuccessful [private] prosecution was that the three men who were acquitted can never be tried again .... ); see also 4 BLACKSTONE, supra note 1, at *335 (stating that "an acquittal on appeal [a form of private prosecution] is a good bar to an^ indictment^ on the^ same^ offence.^ And^ so^ also^ was an acquittal on an indictment a good bar to an appeal, by the common law").^ Such prosecutions are relatively rare, however. In the United^ States,^ private^ prosecutions^ are permissible in some states, but only for minor offenses. E.g., State v. Martineau, 808 A.2d 51, 53-54 (N.H. 2002) (concluding that^ private prosecutions^ are^ permissible^ only for offenses not punishable by imprisonment); In re Grand Jury Appearance Request^ by Loigman, 870 A.2d 249, 253 (N.J. 2005) (noting^ that^ private^ prosecutions^ are permissible in municipal court,^ but^ also^ stating^ that^ they^ are^ not^ favored);^ Cronan^ ex^ rel. State v. Cronan, 774 A.2d 866, 871-72^ (R.I. 2001)^ (holding^ that^ private^ prosecutions^ are permissible in misdemeanor cases). Although the United States Supreme Court in United States v.^ Halper,^^490 U.S.^ 435,^450 (1989),^ method^ of^ analysis^ disavowed^ by Hudson v. United States, 522 U.S. 93, 96 (1997), stated that "[t]he protections of the Double Jeopardy Clause are not triggered by litigation between private parties," it did so immediately following its statement that "nothing in [its] opinion precludes a^ private party fromfiling a civil suit seeking damages for conduct that^ previously was^ the subject of criminal prosecution and punishment," id. (emphasis added). The Court thereby indicated that^ its^ statement^ that^ the^ double^ jeopardy^ provision^ does^ not^ apply^ in "litigation between private parties" was limited to^ civil^ actions^ for^ damages,^ as^ opposed to criminal prosecutions brought^ by^ a^ private^ individual.^ Certainly^ that^ is^ the^ correct result. For, as one court stated, "the^ complainant^ in^ a^ private^ ...^ prosecution^ stands^ in^ a qualitatively different relationship to the defendant than in a civil action." Cronan,^774 A.2d at 866 n.1 (in amending the caption of the case to reflect "the criminal nature of [the] case"). More importantly, though, because the defendant in^ such^ an^ action^ faces "the risk that is traditionally associated with a^ criminal prosecution,"^ Breed^ v.^ Jones,^421 U.S. 519, 528 (1975), he must be deemed to be placed in "jeopardy" for purposes of^ the Double Jeopardy Clause once he is "'put to trial before the trier of facts, whether the trier be a jury or a judge,"' Serfass v. United States, 420 U.S. 377,^388 (1975)^ (quoting United States v. Join, 400 U.S. 470, 479 (1971) (plurality opinion)).
- In the United States, a trial judge's ostensible^ "acquittal"^ of^ an^ individual^ does not necessarily constitute an^ acquittal^ for^ purposes^ of^ the Fifth^ Amendment's^ guarantee against double jeopardy. For^ what constitutes^ an^ acquittal^ for^ purposes^ of^ the^ double jeopardy provision is not controlled by^ the^ form^ of^ the^ judge's^ action.^ United^ States^ v.
[VOL. 8: 387, 2007] Retrying the Acquitted in England
SAN DIEGO INT'L (^) L.J.
has been tried and (^) acquitted. 88 Finally, it helps to ensure that the legal
system commands the respect (^) and confidence of the public.^89
1. Preserving the Finality of Judgments
As stated by the English Law Commission,^9 " "the public interest
requires finality in litigation, including criminal litigation,... so that life
can move on." 9 1 The rule against double jeopardy is intended to serve
this purpose. 92 By precluding the government from prosecuting an
individual a second time for the same offense following his previous
acquittal, it maintains the finality of judgments 93 and protects the "integrity"
of those judgments.9 4^ Once the fact finder in a trial acquits an individual
of a particular offense, the government must respect that judgment in the
future. Even though it might disagree with the result reached by the fact
finder, it cannot bring a second prosecution against the same individual
- See infra text accompanying notes (^) 148-50.
- See (^) infra text accompanying notes 151-55.
- The Law Commission is a body of five Commissioners appointed (^) by the Lord Chancellor. Law Commissions Act, 1965, (^) c. 22, § l(1) (Eng.). Parliament established the Law Commission in 1965 "[f]or the purpose of promoting the reform of the law [of England (^) and Wales]." Id. The Law Commission is charged with: tak[ing] and keep[ing] under review all the law ... with a view (^) to its systematic development and reform, including in particular the codification of such law, the elimination (^) of anomalies, the repeal of obsolete and unnecessary enactments, (^) the reduction of the number of separate enactments and generally the simplification (^) and modernisation of the law... Id. § **3(1).
- LAW COMMISSION, CONSULTATION PAPER** (^) No. 156, supra note 54, 4. (footnote omitted) (also stating that "there is virtue (^) in putting a line under emotive and contentious (^) events..."). 92. The doctrine of resjudicata serves this purpose in civil cases. That doctrine provides that a final judgment based upon the merits of a claim precludes the plaintiff from instituting a second action against the same (^) defendant for the same claim and, conversely, (^) bars the defendant from subsequently raising a new defense to seek to defeat the enforcement of a judgment rendered against him in the action. See generally JACK H. FRIEDENTHAL, MARY KAY KANE & ARTHUR R. MILLER, CIVIL PROCEDURE §§ 14.1-14.8, 14.13 (4th ed. 2005). 93. United States v. DiFrancesco, (^449) U.S. 117, 128 (1980); Crist v. Bretz, 437 U.S. 28, 33 (1978); Arizona v. Washington, (^434) U.S. 497, 503 (1978); Brown v. Ohio, 432 U.S. 161, 165 (1977); United States v. Jorn, (^400) U.S. 470, 479 (1971) (plurality opinion); see also Poland (^) v. Arizona, 476 U.S. 147, 156 (1986); United States v. Wilson, (^420) U.S. 332, 352 (1975); LAW COMMISSION, CONSULTATION PAPER No. 156, supra note 54, 4.8-4.10.
- United States v. Scott, 437 U.S. 82, 92 (1978).
for the same offense. 95 An acquitted defendant, and his family and
dependents, 96 therefore need not suffer the anxiety and distress that
would be constantly present if, despite the acquittal, the government
could subsequently haul him into court a second time and compel him to
defend against the same charge.^97 Without such a limitation, an acquitted
defendant could never be sure that he was effectively acquitted, no
matter how many times a trier of fact found him not guilty, for the
- In the United States, the Double Jeopardy Clause (^) also bars the government from appealing or otherwise seeking review (^) of an acquittal when reversal of the acquittal would require either "a second (^) trial... [or] further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged." Smalis v. Pennsylvania, (^476) U.S. 140, 145-46 (1986) (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 570 (1977) (quoting United States v. Jenkins, 420 U.S. 358, 370 (1975), overruledon other grounds by Scott, 437 U.S. 82) (internal quotation marks omitted); accord Sanabria v. United States, 437 U.S. 54, 63-64 (1978); Wilson, 420 U.S. at 352-53; United States v. Sisson, 399 U.S. 267, 289 (1970); Fong Foo v. United States, 369 U.S. 141, 143 (1962) (per curiam); United States v. Ball, 163 U.S. 662, 671 (1896); see also Smith v. Massachusetts, 543 U.S. 462, 473 (2005) (holding that in a jury trial the judge cannot reconsider his midtrial (^) final acquittal of the defendant); Kepner v. United States, 195 U.S. 100, 133-34 (1904) (precluding the government from trying the defendant a second time on the merits in an appellate court). In England, the government can appeal an acquittal rendered in a magistrate's court by way of case stated. Such an appeal, however, (^) is limited to a claim that the verdict was either "wrong in law" or "in excess of jurisdiction." Magistrates' Courts Act, 1980, c. 43, § I1(1) (Eng.); (^) e.g., DPP v. Milton, [2006] EWHC (Admin) 242, [51], [55], [65] (Eng.) (allowing the government's appeal of a police officer's (^) acquittal for driving dangerously and remitting the case to the Magistrate's Court for a rehearing by a differently constituted tribunal) available at http://www.bailii.org/ew/cases/EWHC/ Admin/2006/242.html. (^) Under the Criminal Justice Act 2003, in a trial on an indictment, the government can appeal to the Court of Appeal a trial court's (^) ruling, entered at the end of the prosecution's case, that "there is no case to answer," i.e., a directed verdict of acquittal, see SPRACK, supra note 10, § 20.48, (^) and if the Court of Appeal reverses the ruling, it can order the proceedings (^) for the offense to be resumed or that a new trial take place. Criminal Justice (^) Act, 2003, c. 44, §§ 57-61, 67-74 (Eng.). In addition, in a case in which an individual was tried on an indictment and acquitted, (^) the Attorney General can appeal by referring a point of law to the Court of Appeal, Criminal Justice Act, 1972, c. 71, § 36(1) (Eng.), but such a reference (^) does "not affect the trial in relation to which the reference is made or (^) any acquittal in that trial," id. § 36(7). See generally ENGLISH LAW COMMISSION, CONSULTATION PAPER No. 158: PROSECUTION (^) APPEALS AGAINST JUDGES' RULINGS 2.2, 2.13, (^) 2.14 (2000).
- LAW COMMISSION, REPORT No. 267, supra note 36, 4.16 ("[T]here is some value in protecting certain third party interests by finality of criminal proceedings .... (^) [ such as] the emotional (^) and financial interests of an acquitted person's family and dependants.").
- Green v. United States, 355 U.S. 184, (^187) (1957) (stating that allowing repeated prosecutions for the same offense would compel an individual "to live in (^) a continuing state of anxiety and insecurity"); LAW COMMISSION, REPORT No. 267, supra note 36, 4.11 (quoting a "very senior judge" as stating that it is "important to preserve the principle that a defendant acquitted by a jury need not worry that he may have to undergo the trial process all over again."); LAW COMMISSION, CONSULTATION PAPER No. 156, supra note 54, 4.9 ("In a serious case the prospect of going through the trial process at some future date is likely to cause great anxiety .... At least some acquitted defendants will be prey to a constant and persisting sense of doubt.").
