in a nutshell
technicalities of Double Jeopardy
the human element
questions to ask a Double Jeopardy defender
abolish retro or pro?
recommittal without prejudice
is Double Jeopardy a fundamental human right?
St Thomas à Becket
R v Carroll saga
 

In a nutshell

Double Jeopardy is one of those “get off on a technicality” laws that prevents a repeat prosecution for someone acquitted in a criminal trial by either the jury, the judge or appeal court judges.

It has come to prominence and, depending on the viewpoint, a certain level of notoriety in modern times due to the combination of the increasing crime solving abilities of modern forensic science, with that of the (primarily commercial) media responding to a public demand for more exposure on law and order issues.

The two main alleged justifications for this law are in a few words, that:

1. There must be a protection against prosecutors who might, spitefully and maliciously, abuse their authority and repeatedly bring to trial someone via whom they were humiliated at the first trial by not being able to convict.
2. An important aspect of the legal process is that, for reasons of respect for the judicial process and to give participants “closure”, there must be adopted the principle of finality and absoluteness to court decisions.

Criticism of these arguments have been that:

1. Prosecutors in fact don’t have the arbitrary power to make a suspect stand trial. This at present in Australia can only be authorised by an independent Committal Hearing Magistrate. If the law on Double Jeopardy were to change then the traditional indicting system of the Grand Jury (as still practiced in some American states) could be utilised to allow an even more independent method to decide if one were to again stand trial.
2. A principle is only a principle when applied to all relevant situations. Finality, in point of fact, just does not exist. Every guilty verdict is subject to an appeal. Rape, robbery and assault victims can never be sure they will not be called again to give evidence at a new trial. The loved ones of a murder victim have no reason to feel confidant that when the perpetuator is given life he or she will serve a significant part of that sentence.

The result of this has been that many in the community have been asking how we can just settle for a situation where our criminal justice system allows those, of whom there is good reason to suspect criminal behaviour, to walk freely amongst us.
 

“…there are cases where the certainty of justice prevails over the possibility of truth ... and these are cases where the law insists on finality."       
                             Lord Wilberforce in The Ampthill Peerage     [1977] AC 547 at 569.

Technicalities of Double Jeopardy

Double Jeopardy, legally know as Autrefois Acquit (previously acquitted) or Autrefois Convict, is the ancient common law legal principle that no person can be tried for the same alleged crime twice.

Even though it does allow repeat prosecutions for two distinct actions that occurred in the same situation, for example robbery and murder, it does not allow (at least in Commonwealth Common Law countries) in essence the same conduct, such as causing the death of a person, to be prosecuted consecutively as dissimilar crimes such as murder, manslaughter or denial of civil rights.

It prevents a repeat prosecution after someone has been found not guilty, or even after someone has been found guilty if the subsequent prosecution were to be for a more serious charge than the original. Ie A person found guilty of petty theft cannot then be charged with grand larceny if it relates to the same object stolen.

Also, for an accused to call upon this law, he has to be at least first convicted/acquitted by a jury or acquitted by a court (appellate or original jurisdiction) rather than just a court case coming to an end. An accused is considered to have been acquitted if the jury declares a ‘not guilty’ verdict; if during the trial, the judge should declare the accused has ‘no case to answer’ and direct the jury to bring in a verdict of not guilty; or if after a guilty verdict has been brought in, an appellate court should overrule the verdict and acquit the accused. Double Jeopardy is not available merely where a jury cannot arrive at a verdict or where adverse circumstances, such as the death of the judge, might warrant the cessation of the trial.

Apart from some recent relaxation of the law in the UK, and Queensland and New South Wales, Australia, the law is absolute and there are no exceptions to the above. If it is reasonable to believe that the accused in a criminal trial was acquitted because he committed perjury; suborned perjury; threatened a witness; bribed members of the jury; arranged to have family members of the judge held hostage for the duration of the court proceedings^#, then this would still have no effect upon the legitimacy of his acquittal.

Once acquitted, a person can never be retried despite:

• Evidence
• New compelling evidence such as DNA
• Admission of guilt by the accused
• Error of Law
• Judges giving an incorrect or improper summation to the jury
• Judges incorrectly denying the admission of evidence
• Corruption of Process
• Jury tampering
• Threatening or bribing of witnesses

“...double jeopardy unequivocally prohibits a second trial following an acquittal, [as the] public interest in the finality of criminal judgements is so strong that an acquitted defendant may not be tried even though the acquittal was based on an egregiously erroneous foundation...”∞

Ω ABC News 7^th August 2007
§  Queensland Press Forum Luncheon,  9th April 2003
¥  cited in ‘Justice at last: killer pleads guilty in Britain's first double jeopardy trial’, The Guardian, 12th Sep 2006
‡  ‘21 reasons you won't get justice from the adversarial court system’ 7th April 2003, http://www.onlineopinion.com.au/view.asp?article=268

# Normally Double Jeopardy would not prevent prosecutions for the aforementioned separate and distinct crimes committed by the accused in his attempt to evade a possible more serious conviction, but with the High Court decision of R v Carroll even this is now in doubt.

* The inclusion of the above cartoon is not to be interpreted that either Peter Nicholson (www.nicholsoncartoons.com.au) or the newspaper The Australian necessarily endorse all the criticisms or suggestions for reform of the law known as Double Jeopardy as mentioned on this site.

∞ Rodrigues v. Hawaii, 469 U.S. 1078, at 1079 (1984)