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The Law Commission

(LAW COM No 267))

DOUBLE JEOPARDY AND PROSECUTION APPEALS

Report on two references under section 3(1)(e) of the Law

Commissions Act 1965

Presented to the Parliament of the United Kingdom by the Lord High Chancellor
by Command of Her Majesty

March 2001

Cm 5048

The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law.

The Law Commissioners are:

The Honourable Mr Justice Carnwath CVO, Chairman

Professor Hugh Beale

Mr Charles Harpum

Professor Martin Partington

Judge Alan Wilkie, QC

The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ.

The terms of this report were agreed on 24 January 2001.

The text of this report is available on the Internet at:

http://www.lawcom.gov.uk

CONTENTS

	Paragraph
Executive Summary	Summary
PART I: INTRODUCTION
The reference on double jeopardy	1.1
The reference on prosecution appeals	1.7
The implications of human rights law	1.12
Our main recommendations	1.18
The timing of this report	1.22
PART II: THE PRESENT DOMESTIC LAW
The autrefois rule	2.2
Identity in law and fact	2.3
The need for a valid acquittal or conviction	2.6
The tainted acquittal procedure	2.9
Abuse of process
The general principles	2.14
The Connelly principle	2.16
The Elrington principle	2.20
The rule against challenging a previous acquittal	2.22
Prosecution appeals	2.29
From the Crown Court
Attorney-General's references on a point of law	2.30
Appeals against rulings at preparatory hearings	2.32
Unduly lenient sentences	2.36
Judicial review	2.38
From magistrates' courts
Appeal to the Divisional Court	2.41
Appeal against a grant of bail	2.43
Customs and Excise cases	2.44
Appeals from appeals	2.45
Retrials	2.46
Discharge of the jury	2.47
Discharge during the course of the trial	2.48
Discharge as a result of a failure to agree	2.51
Retrials ordered by the Court of Appeal, Criminal Division	2.52
PART III: THE IMPLICATIONS OF HUMAN RIGHTS LAW
The concept of res judicata	3.2
Article 14(7) of the ICCPR	3.4
Article 4 of Protocol 7 to the ECHR	3.7
The scope of Article 4(1)	3.10
The scope of Article 4(2)	3.19
PART IV: NEW EVIDENCE AND THE DOUBLE JEOPARDY RULE
Should there be an exception for new evidence?	4.2
The case for an exception	4.4
The response on consultation	4.6
The case against an exception	4.9
Finality as antidote to distress and anxiety	4.11
Finality and individual liberty	4.12
Harassment by state officials	4.14
Finality and third parties	4.16
Finality as wider social value	4.17
Implications of giving a higher value to finality	4.20
Defining the category of cases to which an exception might apply	4.23
Our approach	4.29
Manslaughter	4.37
Genocide	4.41
Retrospective effect	4.43
What new evidence will trigger the exception?	4.57
A substantially stronger case	4.58
The likelihood of conviction at a retrial	4.60
Whether the first jury would have convicted	4.61
The strength of the new evidence itself	4.62
Reliability	4.68
Private prosecutions	4.70
The interests of justice	4.71
Due diligence in the original investigation	4.73
Reasonable despatch since the discovery of the new evidence	4.85
Lapse of time since the alleged offence	4.86
The appropriate court	4.91
Evidence which was inadmissible at the first trial	4.94
Successive retrials, and successive applications for retrials	4.95
Consent to the making of an application	4.98
Reporting restrictions	4.100
PART V: THE TAINTED ACQUITTAL PROCEDURE
The objects of the interference or intimidation	5.2
The definition of "administration of justice offence"	5.6
The necessity for a conviction of an administration of justice offence	5.10
The admissibility of a finding by the court that an administration of justice offence had occurred	5.20
The requirement that the acquittal be secured by the interference or intimidation	5.21
The interests of justice test	5.24
Additional safeguards	5.26
A seriousness threshold	5.27
A time limit	5.28
A limit on the number of times the procedure can be used	5.29
The procedure	5.35
The appropriate court	5.37
PART VI: CODIFYING THE DOUBLE JEOPARDY RULE
The concepts of acquittal and conviction	6.4
Postponing the point at which the prosecution can drop the case without losing the right to re-open it	6.5
Acquittal or conviction in another jurisdiction	6.9
Extending the concept of an acquittal	6.22
Conviction without sentence	6.24
Offences taken into consideration	6.29
Foreign proceedings	6.34
The Connelly principle	6.35
PART VII: PROSECUTION APPEALS AGAINST
JUDGES' RULINGS
How much would prosecution appeals be used?	7.4
The principles affecting the availability of a prosecution appeal	7.12
Which rulings should give rise to a prosecution right of appeal?
Rulings made in advance of the trial
Our provisional proposals and the response on consultation	7.20
Our conclusions	7.29
Non-terminating rulings in the course of the trial	7.37
Terminating rulings during the prosecution case	7.40
Rulings of no case to answer	7.50
Our conclusions on appeals from rulings of no case to answer	7.61
Terminating rulings on disclosure after the close of the prosecution case	7.75
Misdirections to the jury	7.78
The offences to which the new right of appeal should apply	7.79
The criteria for the new right of appeal	7.86
The prosecutor's decision to treat the ruling as terminating	7.95
Leave and consent requirements	7.106
Time limits for applications for leave	7.108
Detention pending appeal	7.115
Custody time limits	7.126
Further time limits
A general time limit on the hearing of the appeal	7.130
A time limit for the start of the retrial	7.136
Reporting restrictions	7.140
PART VIII: OUR RECOMMENDATIONS	Recommendations
APPENDIX A: PERSONS AND ORGANISATIONS WHO COMMENTED ON CONSULTATION PAPER NO 156	Appendix A
APPENDIX B: PERSONS AND ORGANISATIONS WHO COMMENTED ON CONSULTATION PAPER NO 158	Appendix B

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