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You are here: BAILII >> Databases >> The Law Commission >> Double Jeopardy and Prosecution Appeals Part V [2001] EWLC 267(5) (15 March 2001) URL: http://www.bailii.org/ew/other/EWLC/2001/267(5).html Cite as: [2001] EWLC 267(5) |
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The objects of the interference or intimidation
5.2 At present, an acquittal can be set aside only where it was secured by interference with or intimidation of a witness or a juror. In CP 156 we provisionally proposed that the procedure should be extended so as to allow retrials after an administration of justice offence against a judge or magistrate.[3] Nearly all the respondents agreed. 5.3 We also believe (though we did not raise this possibility in CP 156) that if judges and magistrates are to be included it would be inconsistent to exclude magistrates' clerks. Their role, at least when assisting lay justices, is somewhat analogous to that of the judge in the Crown Court. We believe that it would be wrong if an acquittal by magistrates could not be reopened where it was based on bad advice deliberately and improperly given by the clerk, and a prosecution appeal would be out of time. 5.4 We have considered extending the category to include anyone involved in the trial process in any capacity. It is arguable, for example, that an acquittal should be liable to be set aside if it resulted from deliberate sabotage of the prosecution's case by the prosecution advocate, those instructing that advocate, or the police. However, we believe that this would be going too far, and that (with the exception of witnesses, who are already included and must clearly continue to be) the line should be drawn at those who are directly involved in the court's decision, as distinct from the investigation and presentation of the case. 5.5 We recommend that the tainted acquittal procedure should be extended so as to apply where the administration of justice offence involves interference with or intimidation of a judge, magistrate or magistrates' clerk.(Recommendation 10)
The definition of "administration of justice offence"
5.6 In CP 156 we invited views on whether the definition of an administration of justice offence should be extended.[4] Our main query was whether perjury in the first trial (as distinct from aiding, abetting, counselling, procuring, suborning or inciting perjury by another) should be sufficient; and we provisionally thought that it should not. Respondents overwhelmingly supported this view. 5.7 Nearly all respondents thought that no other offences needed to be brought within the definition either. However, the Society of Public Teachers of Law suggested that the definition might usefully be extended to include conspiracy to commit one of the offences already included. In theory this might catch a case where the conspiracy did not reach fruition, and so there could not have been any effect on the integrity of the trial. In such a case, however, it would be impossible to satisfy the separate requirement that, but for the offence, the jury would probably have convicted. The practical point is that, where the conspiracy did lead to actual interference or intimidation, one or more convictions for the conspiracy (as distinct from the full offences) would suffice to trigger the procedure. We accept this suggestion. 5.8 Given our conclusion that judges, magistrates and magistrates' clerks should be included as possible objects of interference or intimidation, there is also a case for including offences of corruption.[5] This would in turn suggest the inclusion of the common law offence of bribery.[6] A judge or magistrate who accepted a bribe would also be guilty of the common law offence of misconduct in public office;[7] but the briber would probably be charged with corruption rather than as a party to the misconduct offence, so it may not be necessary to cater for this possibility. 5.9 We recommend that, for the purposes of the tainted acquittal procedure, the definition of an "administration of justice offence" should be extended to include(1) offences under the Prevention of Corruption Acts 1889–1916, and the common law offence of bribery (or, if and when the recommendations in our report on corruption are implemented, the offences there proposed); and
(2) conspiracy to commit any administration of justice offence.
(Recommendation 11)
The necessity for a conviction of an administration of justice offence
5.10 At present, the acquittal cannot be set aside unless the person alleged to have interfered with the course of justice has been convicted of doing so. In CP 156, we queried whether this requirement might be relaxed. We posited three options. Option 1 was to retain the present position. Under option 2, the court hearing the application to quash the acquittal would have to be satisfied (to the criminal standard of proof) that someone had in fact committed an administration of justice offence, but it would not be necessary that that person should actually have been convicted. Option 3 was to retain the need for a conviction except where it would be impossible to try the person alleged to be guilty of the administration of justice offence (for example because that person was dead, overseas or untraceable), in which case the High Court could quash the conviction if satisfied to the criminal standard that the offence had been committed. We expressed a preference for option 2.[8] 5.11 In the responses, although there was substantial support for option 2, the argument most often adduced in its favour was that it might be impossible to try the alleged culprit. That argument could equally be met by option 3. Some respondents said they would be content with either option. ACPO, however, took up a firmer position in favour of option 2. It argued that the hurdle of a conviction led to significant delays in arranging, applying for and subsequently conducting any retrial of the individual acquitted, and that, given the desirability of ensuring best evidence from witnesses' recollections within a short time scale, and to protect the public, the procedure should not be held up by such a bureaucratic preamble. These considerations might, in certain circumstances, justify reopening the original acquittal even where, given time, a conviction for the administration of justice offence might be obtainable. On the other hand it would still be necessary, under option 2, to satisfy the court hearing the application, to the criminal standard, that an administration of justice offence had been committed. This would inevitably involve a delay, which implicitly is regarded as acceptable. Although the delay involved in satisfying a jury might be a bit longer, the question is whether that additional delay is justified by the enhanced legitimacy gained by requiring a conviction as a trigger for the application, where such a course is feasible, and by avoiding a multiplicity of occasions when the interfered-with witness would have to give evidence on the matter. 5.12 Some respondents argued strongly against option 2. Professor David Feldman thought that it would infringe Article 14(7) of the International Covenant on Civil and Political Rights,[9] and so favoured option 3. The CPS argued that option 2 would involve a full dress rehearsal of a trial of the interferer, which would place great strain on the juror, witness or magistrate, who would have to give evidence twice. Liberty adopted a similar argument, but from the perspective of the tainted acquittal defendant, for whom the variety of proceedings would constitute a heavy and oppressive burden. This was because the defendant would be subject to the original trial, would have to prepare a third party defence to the application to quash the acquittal, and then a second Crown Court trial. There is a serious danger that the defendant's ability to defend against the charge would be eroded in the same way as can happen through hours and hours of police questioning, the sheer persistence of the state's power sapping resistance. The London Criminal Courts Solicitors' Association described option 2 as ill-conceived, time-consuming, expensive and likely to cause delay. The Association noted that our proposals would involve a lengthy trial process in the High Court to decide a question of fact as to whether a person had committed a serious criminal offence, and that such questions of fact are properly decided by a jury at the Crown Court. It felt that the only possible justifications for changing this would be time and cost, but that option 2 would only make things worse in those areas. Peter Mirfield expressed concern that the judge would have an extraordinarily difficult decision. He was also unsure as to certain procedural questions, and whether the criminal rules of evidence would apply. 5.13 There is a further concern relating to procedure if the conviction requirement is abandoned. English justice is very much based upon adversarial procedures which are not easy to place within the tainted acquittal hearing. The prosecution would be on one side and, in effect, the tainted acquittal defendant would be on the other. The question of interference with the course of justice might in some cases relate to incidents of which that defendant might have no direct knowledge[10] and on which that defendant could give no specific instructions. The alleged interferer might not be present, would not be represented and, being liable to no direct legal consequences from the court's ruling, might have little incentive to refute the allegations. The danger in the lack of a proper adversary for the Crown's application is twofold: it may be unjust, and it may make it very difficult for the court to assess the evidence and arguments and to decide the matter. 5.14 Option 2 raises the spectre of the conviction of the tainted acquittal defendant at the retrial, followed by a later acquittal of the alleged interferer. The tainted acquittal defendant would, absent impropriety in obtaining the tainted acquittal ruling, be most unlikely to have grounds for appeal on the basis that the retrial should not have taken place at all. It is an unattractive possibility that we could see the court's finding that an administration of justice offence had been committed contradicted by a jury, but, nonetheless, a tainted acquittal defendant being convicted as a result of that court's ruling. 5.15 It is conceivable that police and/or prosecutors might be tempted not to pursue those who tamper with the administration of justice where a conviction has already been obtained under the tainted acquittal procedure, for fear of the embarrassment were they to be acquitted. This might occasionally arise under option 3 where circumstances had changed and a person had become available to be charged who was thought to be unavailable at the time of the tainted acquittal application. In truth there is no conceptual reason why there should be any embarrassment. Different courts can, legitimately and without embarrassment, come to different conclusions where the parties are different and having heard different evidence. It is, however, important for public confidence in the system that the opportunities for such apparent anomalies to arise be kept to the minimum. 5.16 Another difficult situation would arise if an alleged interferer was acquitted and the Crown later applied to the court to quash an acquittal on the grounds of interference. No doubt, if the interference were exactly the same as that which the jury had considered, the court would decline to quash the acquittal, but there might be other evidence of interference that had not been adduced at the trial of the alleged interferer. There is something worrying about creating potential for inconsistent findings on such sensitive matters as criminal offences. 5.17 We have therefore concluded that option 2 should be rejected. 5.18 Option 3 has two difficulties. The first is that it requires a prosecution to be impossible. This is too exacting a test, and in our view a more realistic but still exacting test is one which utilises the requirement of reasonable practicability. The second is that the reasons for it being impossible to try the alleged interferer are open-ended. In our view this is too permissive. Acquitted defendants ought in principle to know exactly what circumstances will and will not be regarded as sufficient to enable the prosecution to apply to reopen their acquittal without a prior conviction for an administration of justice offence. We have therefore concluded that, in the absence of a conviction for an administration of justice offence, the procedure should be available only in certain specified circumstances. The intention is that these circumstances should reflect all the reasons why, in practice, a conviction for the administration of justice offence is likely not to be reasonably practicable. 5.19 We recommend that the tainted acquittal procedure should be available not only where a person has been convicted of the administration of justice offence, but also where the court hearing the application(1) is satisfied, to the criminal standard of proof, that an administration of justice offence has been committed, and
(2) is satisfied that
(a) the person who committed it is dead;
(b) it is not reasonably practicable to apprehend that person;
(c) that person is overseas, and it is not reasonably practicable to bring that person within the jurisdiction within a reasonable time; or
(d) it is not reasonably practicable to identify that person.
(Recommendation 12)
The admissibility of a finding by the court that an administration of justice offence had occurred
5.20 In CP 156 we proposed that, if the procedure were to be made available despite the absence of a conviction for the administration of justice offence, a finding by the court that such an offence had been committed should not be admissible in any subsequent trial of a person for that offence (or an offence arising out of the same or substantially the same facts as that offence).[11] There was no real opposition to this proposal, and several respondents thought it an essential corollary of any relaxation of the need for a conviction of the administration of justice offence as a precondition of the tainted acquittal procedure. Indeed we think that in principle it should extend to subsequent proceedings for any offence, thus including the case where the alleged administration of justice offence is adduced as "similar fact" evidence on a charge of another offence. We recommend that, where an acquittal is quashed on the grounds that it is tainted although no-one has been convicted of an administration of justice offence in relation to it, the court's finding that an administration of justice offence has been committed should be inadmissible as evidence of that fact in subsequent criminal proceedings for any offence.(Recommendation 13)
The requirement that the acquittal be secured by the interference or intimidation
5.21 At present the High Court cannot set aside the acquittal unless it "appears … likely that, but for the interference or intimidation, the acquitted person would not have been acquitted". In CP 156 we pointed out that the word "likely" is open to a range of interpretations, and put forward various options for clarifying the degree of probability required.[12] 5.22 There was some support among respondents for a requirement that the court should be satisfied to the criminal standard of proof (that is, satisfied so that it is sure, or "beyond reasonable doubt"). In our view it would scarcely ever be possible for the court to determine with this degree of certainty the purely hypothetical question of what the outcome would have been if the trial had taken a different course. This is much too strict a test. 5.23 There was also some support for retaining the existing test. More respondents, however, were in favour of changing the test to the civil standard, namely the balance of probabilities. We believe that this is the right test, and that if this is what is intended then the existing test is inadequate to convey it without ambiguity. We recommend that the tainted acquittal procedure should be available only where it appears to the court hearing the application that, but for the interference or intimidation, the trial would have been more likely to result in a conviction than in an acquittal.(Recommendation 14)
The interests of justice test
5.24 At present one of the conditions that must be satisfied before the High Court can quash an acquittal is that "it does not appear to the court that, because of lapse of time or for any other reason, it would be contrary to the interests of justice to take proceedings against the acquitted person for the offence of which he was acquitted".[13] In CP 156 we proposed that the interests of justice test should be the same as the one we had formulated for the new evidence exception which we were proposing, and which we now recommend.[14] The only difference this would make would be to emphasise that the onus is on the prosecution to satisfy the court that a retrial would be in the interests of justice, not on the defence to show that it would not. All the respondents agreed with this proposal. 5.25 We recommend that an acquittal should be liable to be quashed on the grounds that it is tainted only where the court is satisfied that, in all the circumstances of the case, this is in the interests of justice; and that, in determining whether it is so satisfied, the court should be required to have regard to(1) whether a fair trial is likely to be possible;
(2) whether the prosecution has acted with reasonable despatch since evidence of the administration of justice offence was discovered (or would, with due diligence, have been discovered); and
(3) the time that has elapsed since the alleged offence, together with any other considerations which appear to the court to be relevant.
(Recommendation 15)
Additional safeguards
5.26 In the context of a new evidence exception, CP 156 suggested certain limitations on the circumstances in which an acquittal could be reopened, over and above those relating directly to the grounds for the application (such as the strength of the evidence) and the "interests of justice" test. The proposed limitations were that the alleged offence would have to be of a certain minimum seriousness; that an acquittal could be quashed once only under the procedure; and that there might perhaps be a time limit, to render finite the period during which an acquitted defendant might fear the reopening of the acquittal. In relation to tainted acquittals, we tentatively suggested that the justifications for the double jeopardy rule were the same regardless of the basis of the exception, and so the same additional safeguards might be adopted. We invited views on whether the tainted acquittal procedure did require such additional safeguards.[15] There was a very wide variety of answers. Some respondents argued persuasively that the tainted acquittal procedure is different from a new evidence exception to the double jeopardy rule because the first proceedings were in truth a nullity;[16] that no-one should be able to profit from criminal acts intended to undermine the criminal justice system by striking at its very roots; and that additional safeguards are therefore unnecessary and undesirable. Nevertheless, we consider each possible safeguard in turn.A seriousness threshold
5.27 There were some responses in favour of a minimum severity of offence below which it would not be worthwhile to seek a reopening. However, more than one experienced judge pointed out that interference goes on at all levels of seriousness. Deliberate attacks on the integrity of the system should not profit anyone, even at the most minor level. If the trial was worth having the first time, but was on that occasion rendered a nullity, it will still be worth holding. The very purpose of the tainted acquittal procedure is to secure one fair trial.A time limit
5.28 The same reasoning applies again. There is no statute of limitations on crime, and no reason to create one.[17] The fact that the interference with the course of justice is not uncovered for many years should not, in our view, be an absolute bar to the reopening of the acquittal, though it may in certain circumstances be relevant to the interests of justice test. In any event, we have decided not to recommend a time limit for the new evidence exception, and the argument for having one in the case of the tainted acquittal procedure seems even weaker.A limit on the number of times the procedure can be used
5.29 We have recommended that it should only be possible to make one application for a retrial on grounds of new evidence, even if yet more new evidence subsequently emerges.[18] We must now consider whether there should be a similar prohibition on the making of successive applications under the tainted acquittal procedure, and/or on the making of an application under one exception following an application (successful or otherwise) under the other. 5.30 Where it is not suggested that the trial which resulted in the acquittal was not a proper trial, it would in our view be oppressive to subject the defendant to repeated applications to set the acquittal aside. At this point, the principle of the finality of criminal process should come to the fore. As we have already recommended, therefore, no further application on grounds of new evidence should be permitted where one unsuccessful application has already been made for an acquittal to be quashed on those grounds; nor where an acquittal is quashed on those grounds, and the defendant is acquitted again at the retrial. 5.31 This reasoning would also suggest that the prosecution should not be permitted to apply for a second retrial on grounds of new evidence where the defendant has been acquitted at a retrial held under the tainted acquittal procedure. However, we do not think that the defendant should be in a better position through being acquitted at a retrial, if the retrial was necessary only because the first acquittal was tainted. In this case we believe that the first (tainted) trial should be ignored, and that one further application on grounds of new evidence should therefore be permitted. Although the defendant will already have undergone three ordeals (the first trial, the application to quash the acquittal, and the retrial), only one of them will have been a properly constituted trial. It should therefore be open to the court to consider whether it would be in the interests of justice for there to be a further trial under the new evidence rubric, in the same way as for any application under this proposed exception to the double jeopardy rule. 5.32 Another case in which we believe that finality should prevail is that in which it is suggested that the trial was not a proper trial (that is, an application is made under the tainted acquittal procedure), but the court rejects that suggestion. We conclude that no further application should be permitted, under either exception, where an unsuccessful application has been made for an acquittal to be quashed on the grounds that it is tainted. The defendant has undergone two ordeals and been vindicated on each occasion. A third would be oppressive. 5.33 Where it can be shown that there has not yet been a proper trial at all, however, it is legitimate to ensure that one such trial should take place. This is so irrespective of how many tainted trials may have already taken place. Until there has been a fair trial without intimidation or interference, the Crown must be at liberty to carry on until such a trial has been possible. A further application should therefore be permitted where(1) an acquittal is quashed on the grounds that it was tainted, the defendant is acquitted again at the retrial, and the prosecution seeks another retrial on the grounds that the second acquittal was also tainted;
(2) an acquittal is quashed on grounds of new evidence, the defendant is acquitted again at the retrial, and the prosecution seeks another retrial on the grounds that the second acquittal was tainted; or
(3) an unsuccessful application is made for an acquittal to be quashed on grounds of new evidence, and the prosecution again seeks a retrial, but this time on the grounds that the acquittal was tainted.
There is a difference between the prosecution having to bring forward all its new evidence at the same time, or all its tainted acquittal evidence at the same time, and, in the interests of protecting the integrity of the system, giving the prosecution one chance to bring forward tainted acquittal material whether or not it has already tried to invoke the new evidence procedure. It appears that the tainted acquittal provisions already permit a further application in the first case above, and would permit it in the second and third cases if our recommendations for the new evidence exception were in force. We therefore make no separate recommendation for this purpose.
5.34 We recommend that(1) where an unsuccessful application has been made to quash an acquittal on the grounds that it is tainted, no further application to quash that acquittal (on any grounds) should be permissible; but
(2) where an unsuccessful application has been made to quash an acquittal on grounds of new evidence, it should be possible to make one further application to quash that acquittal on the grounds that it is tainted.
(Recommendation 16)
The procedure
5.35 We made it clear in CP 156 that there was a need for some procedural changes to the tainted acquittal mechanism in order to ensure that it was fair and compliant with the ECHR.[19] These proposals were widely supported. It was suggested that if (as we proposed) the hearing were in open court there might be prejudice to the retrial of the acquitted defendant (or to a subsequent trial of the interferer, though under our final recommendations no such trial would be likely to occur). However, reporting restrictions could be imposed if necessary. 5.36 We recommend that the legislation governing the tainted acquittal procedure be amended so as to provide for(1) a hearing of the question whether the acquittal should be quashed;
(2) the hearing to be in open court;
(3) the acquitted person to have a right to be present;
(4) both parties to be legally represented, and legal aid to be available for the acquitted person;
(5) witnesses to be heard and cross-examined on the question whether an administration of justice offence has been committed; and
(6) consideration of transcripts of the first trial, together with witnesses if necessary, in determining whether the acquitted person would not have been acquitted but for the interference or intimidation.
(Recommendation 17)
The appropriate court
5.37 We are now recommending that it should be the Court of Appeal (rather than the High Court) which has power to quash an acquittal on the grounds of new evidence.[20] It is arguable that the position should be the same in the case of the tainted acquittal procedure. Were we proposing the retention of the tainted acquittal procedure in its present form, we would not think that the argument for parity between the two procedures was particularly strong: they serve different purposes. However, under our recommendations in relation to the tainted acquittal procedure, the court hearing the application may hear evidence, and form a view on matters of fact, in the same way as the court hearing an application on grounds of new evidence. We think that this consideration does constitute a strong argument for parity. If our arguments for new evidence applications to be heard by the Court of Appeal are sound, then they should apply equally to the tainted acquittal jurisdiction too. We recommend that the court empowered to quash acquittals on the grounds that they are tainted should be the Criminal Division of the Court Appeal.(Recommendation 18)
Note 2 See also “Acquittal Following Perversion of the Course of Justice”, New Zealand Law Commission Preliminary Paper 42, September 2000. [Back] Note 5 See the Public Bodies Corrupt Practices Act 1889, and the Prevention of Corruption Acts 1906 and 1916. In Legislating the Criminal Code: Corruption (1998) Law Com No 248 we recommended the replacement of these offences with a more rational scheme. [Back] Note 6 The bribery of jurors is known as embracery: Pomfriet v Brownsal (1600) Cro Eliz 736; 78 ER 968. [Back] Note 7 Llewellyn-Jones [1968] 1 QB 429. [Back] Note 9 See para 3.5 above. Professor Feldman argues that the Human Rights Committee’s interpretation of this article would prohibit option 2. [Back] Note 10 There is no requirement that the acquitted defendant should be responsible for, or a party to, the administration of justice offence. [Back] Note 13 Criminal Procedure and Investigations Act 1996, s 55(2). [Back] Note 16 “Nullity” is used here in a non-technical sense. [Back] Note 17 Section 56 of the Criminal Procedure and Investigations Act 1996 already makes adequate provision in the tainted acquittal procedure for dealing with summary offences and others which must be prosecuted within a time limit. [Back]
