Criminal Law: Double Jeopardy

Following the shocking allegation made by the cell mate of murdered Rachel Manning's boyfriend, I realised we might have a double jeopardy case on our hands. For those of you who aren't up to speed with the case, this article might help: http://www.bbc.co.uk/news/uk-england-beds-bucks-herts-23850307

Below I've posted an extract from my own dissertation which discusses some of the central issues surrounding double jeopardy. Feel free to give me your views!

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Double jeopardy ‘can be traced back many centuries, even to Roman times’.[1] It is the corner stone of justice in the UK that a person cannot be tried twice for the same offence; or as 1760s Blackstone stated, it is the ‘universal maxim of the common law of England that no man is brought into jeopardy of his life or limb more than once for the same offence.’[2]

Double jeopardy was previously the most blatant example of excessive defendant’s rights leading to adverse effects for victims and society at large. The law has traditionally operated asymmetrically: allowing the defendant to challenge a conviction on appeal or post-appeal, but repudiating any challenge of an acquittal by the prosecution.[3] It may be argued that finality is important to encourage both the police and prosecutors to reach the right decision first time around,[4] however, with the exceedingly high criminal standard of proof - based on the due process belief that it is better to wrongly acquit a guilty man than risk convicting an innocent one – it is no wonder that so many cases fall through the net.

For centuries the courts have dismissed cases, despite good evidence, simply because the suspected criminal in question had already been acquitted; this has led to some abhorrent results. Among the biggest cases in this area are the murders of Stephen Lawrence and Julie Hogg. Indeed, it is the murder of Julie Hogg and the ensuing litigation that prompted reform of the double jeopardy rules.

Evidence of Julie’s keys and other personal items were discovered under Dunlop’s floorboards; the court also heard evidence of Dunlop’s semen found on the blanket her body was wrapped in, however, the unconvinced jury failed to reach a verdict and Dunlop was acquitted. Aware of the protection created by the double jeopardy rule, Dunlop later confessed the murder to a police officer. Written evidence was produced in family proceedings and Dunlop was charged with perjury – namely, giving false evidence at both murder trials and failing to admit his guilt - which entailed a 6 year sentence; an obviously deeply unsatisfactory result, although arguably better than no conviction at all.

The enactment of Part 10 Criminal Justice Act 2003 finally brought Dunlop to justice. Following the satisfaction of the s.78[5] conditions, the consent of the Director of Public Prosecutions (DPP) was given, Dunlop was brought to retrial and sentenced to life imprisonment.[6]

The new requirements under s.78 are that the evidence being brought for retrial must be ‘new and compelling’, defined in subsections 2 and 3. ‘The most commonly cited example of “new and compelling evidence” of guilt is DNA evidence’.[7] The advancement of technology has made it possible to reveal errors that have been made previously, and to review evidence which was unhelpful in the ‘pre-DNA era’[8] but which now provides damning proof of culpability.

For example, the murder of Stephen Lawrence, for which Gary Dobson and David Norris were originally acquitted but the later discovery of blood and hair on the defendants’ clothing provided sufficient grounds for retrial. Lord Chief Justice directed that although the DNA evidence could not prove it was Dobson who wielded the knife, any party to the killing would be guilty of murder or manslaughter.[9] Thus the DNA evidence provided the key to conviction nearly two decades after Lawrence’s murder.

Additionally, there appear to be cases, including Julie Hogg’s murder, in which confessions are also used at retrial. The credibility of a confession must be questioned,[10] as defendants may admit fault for any number of reasons; but nevertheless, they have generally proven helpful in bringing cases to justice. It may be fair to predict the decline in future post-acquittal confessions as the new exception to double jeopardy receives more publicity.

Both old and new evidence has the ability to fall within the “new and compelling” requirement; indeed, a knife-point rape which occurred in McDonald’s in 1988 was recently brought to justice as DNA evidence, leading to a confession, was brought before the court.[11] Hamer also points out that evidence will be “new” and “fresh” where it was inadmissible at the time of the trial but is presently admissible due to a change in evidence law.[12] However, it’s probably true to say that brand new evidence will have better chances at success, as the quality of older evidence may be questioned and may not be viewed as compelling.[13] Indeed, ‘the defence may argue that the loss and deterioration of evidence means that any conviction would be unsafe’.[14]

The reforms to double jeopardy, although contentious due to the brave step away from due process, have made the appeal system more symmetrical. The UK’s long history of litigation imbalance was outdated and in need of modernisation, which is exactly what the New Labour era ensured. The exception to double jeopardy provided by Part 10[15] has demonstrated that it has the ability to be successful: indeed, as regards the 12 applications by the DPP to the Court of Appeal to date, all involving murder or rape, 7 have resulted in quashing the acquittal and ordering a retrial.[16] However, criticism may still be given, particularly as regards the willingness to embrace the exception to double jeopardy, the finality of litigation, and the scope of the provisions.

Indeed, despite the considerable acclamation the new jurisdiction has received, many of those who hold more traditional views are yet to be convinced. The DPP has said: “the general feeling...among all practitioners, myself included, is that the principle of double jeopardy is a valid one, that the state should not, except in quite exceptional circumstances, be allowed to have a second go.”[17] Thus, although the new law might well exist, its failure to be embraced by members of the executive and judiciary mean that the likelihood of it being applied to its potential is somewhat limited and the real scope of the provision is questionable. At present, although Part 1 of Schedule 5 sets out that the exception to double jeopardy applies in respect of: murder, manslaughter, rape, kidnapping, various offences involving a Class A drug, arson endangering life, genocide, crimes against humanity and war crimes, directing a terrorist organisation, and conspiracy,[18] it has only been used in cases of murder and rape.

The hesitancy of the courts to apply the new provisions in respect of all of the examples above is perhaps based on the inherent due process nature of the UK’s justice system. It has been suggested that the reform was intended to be more symbolic[19] than anything else, although this is considerably objectionable as reforms generally occur for an extremely good reason, where there is defect in the law or the application of it.

A further objection to the new ruling is based on finality. Hamer has written: “if two trials are okay, why not three, or four, or....?”;[20] whilst Gale, in agreement, has suggested ‘finality is no longer a primary aim’[21] and that ‘this may be the thin end of a wedge, which will allow the prosecution successive bites of the cherry’.[22] It is not, by any means, clear cut as to the number of trials that should be permitted with any given case. However, it is certainly true to say that as regards conviction appeals, a case may go to court any number of times – being passed up the ladder from the High Court, to the Supreme Court, with scope to appeal to the European Courts in certain instances; thus if symmetry is truly to be achieved in the justice system, acquittal appeals must be treated with the same level of opportunity.

It is important that the law holds some level of finality, especially as regards maintaining consistency and reliability, however, for as long as appeals on conviction are permitted, this essay submits that acquittals should be served with the same hand, regardless of various counter-arguments based on opening the floodgates of litigation.

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[1] Keir Starmer, ‘Finality in criminal justice: when should the CPS reopen a case?’ [2012] Crim LR 531

[2] Blackstone, IV Commentaries pp.335-336, 1765-1769.

[3] David Hamer, ‘The expectation of incorrect acquittals and the “new and compelling evidence” exception to double jeopardy’ [2009] Crim LR 64

[4] Keir Starmer, ‘Finality in criminal justice: when should the CPS reopen a case?’ [2012] Crim LR 528

[5] Criminal Justice Act 2003, s.78

[6] R v Dunlop [2006] EWCA Crim 1354; [2007] 1 W.L.R. 1657

[7] David Hamer, ‘The expectation of incorrect acquittals and the “new and compelling evidence” exception to double jeopardy’ [2009] Crim LR 71

[8] David Hamer, ‘The expectation of incorrect acquittals and the “new and compelling evidence” exception to double jeopardy’ [2009] Crim LR 72

[9] Tom Whitehead & Mark Hughes, ‘Stephen Lawrence murder: change in double jeopardy law allowed Gary Dobson prosecution’ (2012) The Telegraph

[10] David Hamer, ‘The expectation of incorrect acquittals and the “new and compelling evidence” exception to double jeopardy’ [2009] Crim LR 72

[11] Keir Starmer, ‘Finality in criminal justice: when should the CPS reopen a case?’ [2012] Crim LR 533

[12] David Hamer, ‘The expectation of incorrect acquittals and the “new and compelling evidence” exception to double jeopardy’ [2009] Crim LR 74

[13] R v Carroll [2001] Q.C.A. 394

[14] David Hamer, ‘The expectation of incorrect acquittals and the “new and compelling evidence” exception to double jeopardy’ [2009] Crim LR 77

[15] Criminal Justice Act 2003, Part 10

[16] Keir Starmer, ‘Finality in criminal justice: when should the CPS reopen a case?’ [2012] Crim LR 533

[17] Andrew Ashworth & Mike Redmayne, The Criminal Process (3^rd edn, OUP 2005) 368

[18] Criminal Justice Act 2003, Schedule 5 Part 1

[19] Ian Dennis, ‘Prosecution Appeals and Retrial for Serious Offences’ [2004] Crim LR 619 637

[20] David Hamer, ‘The expectation of incorrect acquittals and the “new and compelling evidence” exception to double jeopardy’ [2009] Crim LR 68

[21] Christopher Gale, ‘Case Comment: Double Jeopardy’ [2007] J Crim L 9

[22] Christopher Gale, ‘Case Comment: Double Jeopardy’ [2007] J Crim L 9