Double Jeopardy and Prosecution Appeals
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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 ii THE LAW COMMISSION DOUBLE JEOPARDY AND PROSECUTION APPEALS CONTENTS Paragraph Page PART I: INTRODUCTION 1 The reference on double jeopardy 1.1 1 The reference on prosecution appeals 1.7 3 The implications of human rights law 1.12 4 Our main recommendations 1.18 6 The timing of this report 1.22 6 PART II: THE PRESENT DOMESTIC LAW 8 The autrefois rule 2.2 8 Identity in law and fact 2.3 8 The need for a valid acquittal or conviction 2.6 9 The tainted acquittal procedure 2.9 10 Abuse of process The general principles 2.14 12 The Connelly principle 2.16 12 The Elrington principle 2.20 14 The rule against challenging a previous acquittal 2.22 15 Prosecution appeals 2.29 17 From the Crown Court Attorney-General’s references on a point of law 2.30 17 Appeals against rulings at preparatory hearings 2.32 18 Unduly lenient sentences 2.36 20 Judicial review 2.38 21 From magistrates’ courts Appeal to the Divisional Court 2.41 22 Appeal against a grant of bail 2.43 23 Customs and Excise cases 2.44 23 Appeals from appeals 2.45 24 iii Paragraph Page Retrials 2.46 24 Discharge of the jury 2.47 24 Discharge during the course of the trial 2.48 24 Discharge as a result of a failure to agree 2.51 26 Retrials ordered by the Court of Appeal, Criminal Division 2.52 26 PART III: THE IMPLICATIONS OF HUMAN RIGHTS LAW 28 The concept of res judicata 3.2 28 Article 14(7) of the ICCPR 3.4 29 Article 4 of Protocol 7 to the ECHR 3.7 29 The scope of Article 4(1) 3.10 30 The scope of Article 4(2) 3.19 33 PART IV: NEW EVIDENCE AND THE DOUBLE JEOPARDY RULE 35 Should there be an exception for new evidence? 4.2 35 The case for an exception 4.4 35 The response on consultation 4.6 36 The case against an exception 4.9 37 Finality as antidote to distress and anxiety 4.11 37 Finality and individual liberty 4.12 38 Harassment by state officials 4.14 38 Finality and third parties 4.16 39 Finality as wider social value 4.17 39 Implications of giving a higher value to finality 4.20 40 Defining the category of cases to which an exception might apply 4.23 41 Our approach 4.29 41 Manslaughter 4.37 44 Genocide 4.41 44 Retrospective effect 4.43 45 What new evidence will trigger the exception? 4.57 49 A substantially stronger case 4.58 49 The likelihood of conviction at a retrial 4.60 49 Whether the first jury would have convicted 4.61 50 The strength of the new evidence itself 4.62 50 Reliability 4.68 52 Private prosecutions 4.70 52 iv Paragraph Page The interests of justice 4.71 52 Due diligence in the original investigation 4.73 53 Reasonable despatch since the discovery of the new evidence 4.85 56 Lapse of time since the alleged offence 4.86 56 The appropriate court 4.91 57 Evidence which was inadmissible at the first trial 4.94 58 Successive retrials, and successive applications for retrials 4.95 59 Consent to the making of an application 4.98 60 Reporting restrictions 4.100 60 PART V: THE TAINTED ACQUITTAL PROCEDURE 63 The objects of the interference or intimidation 5.2 63 The definition of “administration of justice offence” 5.6 64 The necessity for a conviction of an administration of justice offence 5.10 65 The admissibility of a finding by the court that an administration of justice offence had occurred 5.20 68 The requirement that the acquittal be secured by the interference or intimidation 5.21 68 The interests of justice test 5.24 69 Additional safeguards 5.26 69 A seriousness threshold 5.27 70 A time limit 5.28 70 A limit on the number of times the procedure can be used 5.29 70 The procedure 5.35 72 The appropriate court 5.37 73 PART VI: CODIFYING THE DOUBLE JEOPARDY RULE 74 The concepts of acquittal and conviction 6.4 75 Postponing the point at which the prosecution can drop the case without losing the right to re-open it 6.5 75 Acquittal or conviction in another jurisdiction 6.9 76 Extending the concept of an acquittal 6.22 80 Conviction without sentence 6.24 81 Offences taken into consideration 6.29 82 Foreign proceedings 6.34 84 The Connelly principle 6.35 84 v Paragraph Page PART VII: PROSECUTION APPEALS AGAINST JUDGES’ RULINGS 90 How much would prosecution appeals be used? 7.4 90 The principles affecting the availability of a prosecution appeal 7.12 93 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 96 Our conclusions 7.29 98 Non-terminating rulings in the course of the trial 7.37 100 Terminating rulings during the prosecution case 7.40 101 Rulings of no case to answer 7.50 103 Our conclusions on appeals from rulings of no case to answer 7.61 106 Terminating rulings on disclosure after the close of the prosecution case 7.75 108 Misdirections to the jury 7.78 109 The offences to which the new right of appeal should apply 7.79 110 The criteria for the new right of appeal 7.86 111 The prosecutor’s decision to treat the ruling as terminating 7.95 114 Leave and consent requirements 7.106 118 Time limits for applications for leave 7.108 118 Detention pending appeal 7.115 120 Custody time limits 7.126 122 Further time limits A general time limit on the hearing of the appeal 7.130 123 A time limit for the start of the retrial 7.136 125 Reporting restrictions 7.140 126 PART VIII: OUR RECOMMENDATIONS 127 APPENDIX A: PERSONS AND ORGANISATIONS WHO COMMENTED ON CONSULTATION PAPER NO 156 137 APPENDIX B: PERSONS AND ORGANISATIONS WHO COMMENTED ON CONSULTATION PAPER NO 158 140 vi THE LAW COMMISSION Report on two references under section 3(1)(e) of the Law Commissions Act 1965 DOUBLE JEOPARDY AND PROSECUTION APPEALS To the Right Honourable the Lord Irvine of Lairg, Lord High Chancellor of Great Britain PART I INTRODUCTION THE REFERENCE ON DOUBLE JEOPARDY 1.1 On 2 July 1999 the Home Secretary made a reference to this Commission in the following terms: To consider the law of England and Wales relating to double jeopardy (after acquittal), taking into account: recommendation 38 of the Macpherson Report on the Stephen Lawrence Inquiry that consideration should be given to permit prosecution after acquittal where fresh and viable evidence is presented; the powers of the prosecution to re-instate criminal proceedings; and also the United Kingdom’s international obligations; and to make recommendations. 1.2 The reference arose out of the Macpherson inquiry into the Stephen Lawrence case.1 There was great public dissatisfaction about the way in which the police investigation into the murder of Stephen Lawrence had been conducted, and the Home Secretary set up a Committee of Inquiry. In that case, a private prosecution had been brought unsuccessfully against youths who were accused of the murder. The prosecution failed because the judge ruled that the identification evidence of the prosecution’s main witness was too unreliable to be admitted. One of the points considered in the inquiry was the impossibility of bringing a fresh prosecution against those who were allegedly responsible for Stephen Lawrence’s death but had been acquitted of it, and it was recommended that “consideration should be given to the Court of Appeal being given power to permit prosecution after acquittal where fresh and viable evidence is presented”.2 The report explains: 1 The Stephen Lawrence Inquiry – Report of an Inquiry by Sir William Macpherson of Cluny (1999) Cm 4262. 2 Recommendation 38. The inquiry’s terms of reference required it “to identify the lessons to be learned for the investigation and prosecution of racially motivated crimes”, but our understanding is that this recommendation was not intended to be confined to such crimes. In any event, we see no reason for the rules on double jeopardy to be different in the case of racist crime from those applicable to other kinds of crime. 1 Both we and others … have considered, in the context of this case, whether the law which absolutely protects those who have been acquitted from any further prosecution for the same or a closely allied offence should prevail.