Double Jeopardy

The rule against double jeopardy is a fundamental civil liberty recognised both in international human rights instruments including Article 14(7) of the International Covenant on Civil and Political Rights and Article 4 of the Seventh Protocol to the European Convention on Human Rights as well as the common law prior to the Criminal Justice Act 2003 (CJA 2003).

In 2001 the Law Commission produced a thorough report on the rule against double jeopardy and, after examining the issue in immense detail, concluded that the rule should be “subject to an exception in certain cases where new evidence is discovered after an acquittal, but only where the offence of which the defendant was acquitted was murder, genocide consisting in the killing of any person” and furthermore that the exception “should be available only where the court is satisfied that the new evidence: (a) appears to be reliable; and (b) when viewed in context, appears at that stage to be compelling”.

Despite this sensible and proportionate recommendation, the government went far further than necessary and, via Part 10 of the Criminal Justice Act 2003, introduced an exception to the double jeopardy rule which applied to no less than 50 different offences, and furthermore, defined “compelling” evidence as “highly probative of the case against the acquitted person” instead of the Law Commissions recommendation of “highly probable that the defendant is guilty”.

The exceptions against the double jeopardy rule by virtue of Part 10 of the CJA 2003 went far further than necessary and leaves many, many people acquitted of committing a crime liable to be called back for a second trial in the future. The law violates international human rights standards and steamrolled over an important principle of the common law with little benefit to victims and anxiety to those acquitted.

Part 10 of the CJA 2003 should be amended to bring it in line with the strict exception recommended by the Law Commission.

Why is this idea important?

Double jeopardy serves a basic purpose of ensuring that those who are acquitted of an offence are free to go about their lives in the future free from fear and anxiety. If people are permanently liable to be recalled to court to go on trial again for the same offence, their freedoms are limited and they may not be able to go about their lives the way they want to or without stress.

While there is a need for a limited exception to the double jeopardy rule in very exceptional cases, the current rules are far too broad and removing the ability of thousands of acquitted people to go about their lives freely.

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