Double Jeopardy, Autrefois Acquit and the Legal Ethics of the Rule Against Unreasonably Splitting a Case

Abstract

Section 75 of the Criminal Justice Act (CJA) of 2003 overturned the principle in English law that a person cannot be retried for an offense of which he has been acquitted, recognizing advances in forensic science that uses modern analysis of DNA in adducing in evidence. The special plea of autrefois acquit can be overturned based on finding of compelling evidence after a previous acquittal of a suspect who can now be tried again for the same offense. The double jeopardy arises only after a lawful acquittal or autrefois convict of the accused for the first offense and these principles have allowed exceptions to the rule against double jeopardy developed by the courts. There is an analogous rule in common law courts based on the unreasonable splitting of the case when there is a severing of indictments which overrides the bar on the accused being retried for the same offense. This paper examines the difficulty of trying a defendant fairly in the English courts when the defense has pleaded an abuse of process and there is no clear overall argument for trial. This question needs an appraisal of legal ethics in criminal courts because a retrial of the accused on the same charge breaches the autrefois acquit doctrine, and severing of an indictment can cause the fair trial process to be undermined.

Keywords:

• common law
• rule against double jeopardy
• Criminal Justice Act (CJA) 2003
• Section 75
• “new and compelling” evidence
• autrefois acquit
• autrefois convict
• Bill of Rights

Introduction

The rule against the double jeopardy of an accused is an important protection for individuals against the abuse of state power. It stops police and prosecutors from repeatedly investigating and prosecuting the same individual for the same crime without a compelling reason. The rule encourages them to prepare the case properly on the first occasion, and to accept the court's verdict after trial. Equally, when a person is found not guilty in court, they are aware that the case is concluded, and appeals are an exception and arise in certain circumstances only.¹ It is though necessary to consider when the circumstances arise for a case to be reopened and defendants to be recharged with the same crime in the English court. There are binding rules of professional integrity, ethics and compatibility within the European Convention of Human Rights Article 4 Protocol 7 (1).² This provision requires an examination of the history of the principle which is defined as double jeopardy, its rationale and its exceptions in common law courts to prevent the abuse of process by the prosecution.

The origins of the principle of not trying the accused for the same offense in a retrial can be traced to the Greek concept that consecrated the acquittal of the accused.³ It transferred into the history of Roman law concept of ne bis in idem principle in history (c. eighth century BCE–sixth century AD), when it emerged as a “primitive form of res judicata.”⁴ There is a close analogy between the manner the Roman law was formulated in the Digest of Justinian (533) which stated that “the governor should not permit the same person to be again accused of crimes of which he has been acquitted.”⁵ The principle has been assimilated into the common law both directly and through ecclesiastical law where it was generally recognized.⁶ The principle found expression in the “pervasive nature of Roman law expressed in common law of England.”⁷ This principle was encapsulated in the Latin maxim nemo debet bis puniri pro uno delicto—“no man ought to be twice punished for the same offense”—which is a source for the introduction of principle in the common law that reflects a close analogy between the evolution of Roman and English law.⁸

In medieval England the death penalty or mutilation was unavoidable upon a second conviction, and trial by ordeal was the regular process for criminal offenses prior to the Norman Conquest. The recidivist offenders were subjected to the “triple ordeal,” and the guilt determined as a consequence that subsequently led “to the removal of the hands, feet, or both, and following a third ordeal punishments included blinding, excision of the nose, ears and upper lip, or scalping.”⁹

The procedure for the determination of guilt was rudimentary and not uniform enough to be described as part of a machinery of justice.¹⁰ It was also manifest in the abrogation by Henry II (1154–89) in his Constitutions of Clarendon in 1164, which made the provision to retry religious clerks who had formerly been acquitted in the spiritual courts. The development of the principle emerged from the dispute between Archbishop Thomas Becket (Archbishop of Canterbury) and King Henry II, which concerned not merely every criminal charge but every cause of action against a member of clergy outside the jurisdiction of the temporal courts.¹¹

The Archbishop had intimated to Henry II that any further trial in the King's Courts would override the maxim nemo bis in idipsum. He objected firstly to the summoning of clerks before a secular justice at the initial stage of the King's procedure; secondly, that no secular punishment should follow the deposition of a guilty clerk since secular judges had no jurisdiction over clerks (who were under the jurisdiction of the ecclesiastical courts); thirdly, that deposition was itself the penalty for the crime in question, to which no secular punishment could be legitimately superimposed, for this would prescribe a double punishment.¹²

After the murder of Becket, this principle was promulgated into law in 1176, when the Monarch was obliged to proclaim that common law courts could not retry the clergy accused of committing crimes who had already been tried in the spiritual courts and the principle of double jeopardy was born.¹³ In the formative period of English law William Blackstone wrote in the Commentaries that “the plea of autrefois acquit … is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life, more than once, for the same offense.”¹⁴

The English law preserved the double jeopardy rule for over 800 years. The rule was partially abolished in England, Wales, and Northern Ireland by the Criminal Justice Act of 2003 (CJA). In certain very limited circumstances a person who was acquitted of a crime can now be investigated and put on trial one more time. The change was made because of the development of forensic quantification of DNA evidence, and the technical ability to match to a specific individual trace at a crime scene that can be admitted at the trial of the accused. The upshot has been that some accused who were convicted of crimes had their innocence proven by DNA evidence, while other defendants, who had been acquitted before, can now be arraigned for the second time. If there was compelling new evidence that they had committed a crime, it was of probative value and they could be indicted for the same offense twice.

The impetus for a change in the law was subsequent to the Stephen Lawrence homicide in 1993, when the original police investigation of this racist killing did not result in criminal charges. When the family brought a private prosecution of three suspects, all three were acquitted of the crime. The Macpherson Report on the police investigation deemed it to be seriously flawed, and recommended that the double jeopardy rule should be abolished to allow a further prosecution if new evidence emerged that could link any of the defendants to the crime.¹⁵ The CJA facilitated the process and one of those suspects, Gary Dobson, who was originally charged, was convicted of the murder in 2012.¹⁶

The small number of cases that have led to a second prosecution of the same criminal charge have passed the demanding legal tests which must be met in double jeopardy cases, part of the process that must be followed before a retrial. Firstly, the rule has only been reformed for the most serious crimes under the CJA, and there is no second trial after being acquitted of a misdemeanor, no matter how strong the new evidence against the accused.¹⁷ Secondly, the CJA removed the guarantee of protection from the double jeopardy rule by allowing it retrospective effect.¹⁸

If the accused is being indicted for the same offense on more than one occasion, the basic principle is that there is a bar to jurisdiction, namely autrefois acquit (previous acquittal) and autrefois convict (previous conviction), that prevents repeated prosecutions.¹⁹ The defense plea of autrefois acquit is available to the accused in a criminal case, which implies that he has been acquitted previously for the same offense and should be discharged. The process of autrefois convict discharges an accused, as he has been convicted previously for the same offense. The double jeopardy rule only allows one retrial, and if the defendant is acquitted again, they cannot be prosecuted for that crime in the future, even if more evidence emerges.²⁰

The rule in common law courts is that an accused person should be protected from re-prosecution not only in respect of the same crime, but in respect of crimes which should have been litigated, the general rule being that it is ethically relevant that all charges arising out of the same incident should be brought together whenever possible. There is a rule against the unreasonable splitting of the case that applies when separate charges would be inappropriate against the accused. This is premised on the notion that an original charge was later discovered to be one aspect of a larger and more significant crime.²¹

This paper is structured as follows: Part A considers the impact of CJA 2003 Section 75, and the exceptions to the rule against double jeopardy and the autrefois doctrine and the abuse of process of the court; Part B considers the unreasonable splitting of the case that stems from the same offense but takes the form of several indictments in English criminal law; and Part C examines the comparative common law courts rulings and the provisions of the U.S. Bill of Rights and procedural justice that include the right to a due process. The goal of this article is to illustrate that legal ethics are a fundamental consideration in double jeopardy in English courts, and that the common law courts have an obligation to ensure that if there is a second trial, that it is in the interests of justice to conduct it in the criminal courts.

Exceptions to Rule Against Double Jeopardy

Under Section 75 of CJA there is a two-stage test that has to be considered before a second trial is allowed of the accused. The first is the strength of the evidence which has to be “new and compelling.”²² Section 78 sets out the evidential test, which is that it must be “reliable, substantial, and highly probative against the Defendant.” If the prosecution believes that a legal test can be met, they have to obtain the consent of the Director of Public Prosecution (DPP) to make an application to the Court of Appeal. They must then persuade the Court to quash the original acquittal and order a retrial, and prior to making such an order, they will examine not only the evidence but also the public interest in the case.²³

The public interest element for a new trial will not be a substitute for incompetence in the original prosecution, nor for a case so distant in memory that a fair trial is no longer possible. The test for the interests of justice is set out in Section 79 of the 2003 Act which has to consider a number of matters including, but not limited to

the extent of adverse publicity about the case; the length of time since the alleged offence was committed; and whether the police and prosecution acted with due diligence and expedition in relation to both the original trial and any new evidence. The Court may take into account any other issues it considers relevant in determining whether a retrial will be in the interests of justice.²⁴

There is also the requirement that the new evidence for which the accused is being retried has to be compelling, and this is a test that has to be satisfied before the indictment is framed again. Part 10 of the CJA 2003 sets out a statutory framework, which enables retrial of a defendant who has secured a dubious acquittal at trial. The process is available only for the so-called qualifying offenses, i.e. the offenses listed in Part 1 of Schedule 5 to the Act.²⁵ Section 75 of the Act applies to the category of these offenses that may be retried, and section 76 provides for the procedure for making the application to the Court of Appeal. Under section 76, the prosecutor may apply to the court for quashing a person's acquittal for a qualifying offense and ordering him to be retried.

Such an application must be pursued only with the leave of the DPP, who must issue a written consent. The DPP may give consent if he is satisfied that there is new and compelling evidence against an acquitted person in relation to the qualifying offense.²⁶ Section 78 of the Act considers the expression “new and compelling evidence.” Accordingly, evidence is new if it was not adduced in the proceedings in which the person was acquitted (not, if those were appeal proceedings to which the charge related).

The autrefois doctrine applies where a defendant is tried for the same offense in law and in fact, for which he was previously convicted (autrefois convict) or acquitted (autrefois acquit). This is a test that has been established in case law, and the removal of the guarantee of protection from the double jeopardy rule has to be set against the principles which are central to legal ethics. The law regarding the second prosecution is implicit, that it must not be motivated by the “oppressive or improper conduct” on the part of the prosecution before the indictment is reissued.

In Connelly v. DPP²⁷ the Crown had charged the accused and three other defendants with two indictments, one for murder and one for robbery. These indictments arose out of an offense of robbery in which an employee had been killed. Initially, the Crown proceeded on the murder indictment alone, in which the defendant was found guilty. He appealed to the Court of Criminal Appeal which quashed Connelly's conviction and directed a verdict of acquittal.

Sometime later, however, the prosecution tried and convicted Connelly on the second indictment for robbery. He appealed his robbery conviction to the House of Lords, which had to consider the principle of that splitting the indictment for different charges where there was a plea of autrefois acquit, and the defendant appealed against the second trial as an abuse of process. The Lords held that double jeopardy protection is afforded not only by the pleas in bar, but also by the judicial discretion to stay proceedings as an abuse of process. Lord Morris and Lord Devlin gave concurring opinions in the case, both holding that the “pleas of autrefois acquit and autrefois convict had become firmly embedded principles of the English common law and the rule against double jeopardy is a fundamental principle of law.”²⁸

Lord Morris noted that “the appellant could not on the first indictment have been found guilty of the offense of robbery with aggravation.”²⁹ Therefore, while the appellant could “validly assert that he had been acquitted of the charge of murder-with the consequential result that he had also been acquitted of manslaughter,” the issues posed by the robbery had not been resolved.³⁰ Lord Morris also observed that, when considering the issue of judicial discretion, “once an indictment is before the court the accused must be arraigned and tried thereon.”³¹ Furthermore, “a court must enjoy sufficient powers to suppress any abuses of its process.³² While the proceedings in the present case ‘could not … be characterized as an abuse of the process of the court,’ other situations would allow a court to stay ‘obnoxious proceedings.’”³³

Lord Devlin gave a more circumspect ruling, and offered a more objective rule for double jeopardy to be waived and the defendant retried for the same offense. Devlin stated that “for the doctrine of autrefois to apply it is necessary that the accused should have been put in peril of conviction for the same offense as that with which he is then charged.”³⁴ He held that autrefois requires one to be charged with the “same offense,” not “substantially” the same offense.³⁵ The offense included “both the facts which constitute the crime and the legal characteristics which make it an offense.”³⁶ The court would consider “for the doctrine to apply [that] it must be the same offense both in fact and in law.”³⁷

Lord Devlin stated that Lord Morris “extend[ed] the doctrine,” and expressed issue with “the idea that an offense may be substantially the same as another.”³⁸ Lord Devlin's interpretation held that “legal characteristics are precise things and are either the same or not.”³⁹ He gave a narrower view and held that, “If I felt that the doctrine of autrefois was the only form of relief available to an accused who has been prosecuted on substantially the same facts, I should be tempted to stretch the doctrine as far as it would go.”⁴⁰ Devlin clarified that the burden is on the prosecution to “demonstrate special circumstances and that to proceed when it is not an abuse of process. The special circumstances existed when P (Prosecution) moved from misconceived charges to correct charges.”⁴¹

Lord Devlin declined to attempt “a comprehensive definition” of what constitutes special circumstances, but gave as an example a case where the prosecution considers that two charges should be charged separately, and prefers two indictments accordingly. Devlin stated that “if the defense accepts the choice without complaint and avails itself of any advantage that may flow from it, I should regard that as a special circumstance.”⁴²

The powers vested in a court include the power to stay proceedings in cases where the pleas of not guilty cannot be relied on, and the consideration whether the second prosecution amounts to oppressive or an improper trial process. The legal ethics are present in the doctrine of autrefois because it is necessary that the accused should only have been put in peril of conviction for the same offense as that with which he was previously charged, if the test is met of a fair trial. The offense for which he is then charged includes both the facts which constitute the crime and the legal characteristics which make it an offense. For this to be applicable it must be the same offense both in fact and in law for the indictment to be reasonable and proportionate.

This reasoning was confirmed by the House of Lords in DPP v. Humphrys,⁴³ in which Lord Salmon stated the scope of the “abuse of process discretion” in the following terms:

A judge has not and should not appear to have any responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene.⁴⁴

Lord Salmon ruled that the inherent jurisdiction of a criminal court is “to prevent an abuse of process and that it should be distinguished from a reserved power of the trial judge to refuse to allow a prosecution to proceed to trial.”⁴⁵ This is on the mere consideration that it was a matter of policy, that the prosecution should not have been brought, or that it should not continue. There is an inference that the separation of a trial to establish guilt should be exercisable if there is likely to be a mistrial or the trial's conduct is affected.

In deciding whether a plea of autrefois is available, the courts have affirmed the position that the offense must be the same in facts and law. In R v. Beedie (Thomas Sim),⁴⁶ a defendant had been charged with offenses under Health and Safety Act (HSA), under Section 3(2) and Section 33, after the death of a tenant from carbon monoxide poisoning. He pleaded guilty and was sentenced. At an inquest the defendant gave evidence, believing that he was immune from another charge but then he was prosecuted, this time for manslaughter by gross negligence. The jury returned a verdict of unlawful killing and the defendant appealed that he was entitled to rely on the doctrine of autrefois in the severance of an indictment. This conviction was overturned by the Court of Appeal because the court ruled that the indictment ought to have been stayed as an abuse of process. There were no compelling or exceptional circumstances to justify the second prosecution.⁴⁷

In the above case the defense also relied on a further principle to stay the proceedings, derived from the R v. Elrington,⁴⁸ where at the committal stage the Magistrates had dismissed the charge of assault against the defendant, and he was then indicted for causing grievous bodily harm on the basis of the same assault. Lord Cockburn CJ stated as a principle of general application that “whether a party accused of a minor offense is acquitted or convicted, he shall not be charged again on the same facts in a more aggravated form.”⁴⁹ Thus a person convicted of an assault can be charged with murder or manslaughter if the victim subsequently dies from the injuries sustained.

There is a presumption in favor of a stay that is even more compelling where the second charge does not merely arise out of the same facts but is an aggravated form of the first charge.⁵⁰ The exception to the Elrington principle exists when a person who has been convicted of an offense can be prosecuted for an aggravated form of the same offense if the facts constituting the aggravated offense were not in existence at the time of the conviction. In Beedie, the Court of Appeal had considered the principle stated by Lord Devlin in Connelly as a factor relevant to the judge's decision whether to stay the proceedings.⁵¹

The inference is that there is a relatively narrow application for the rule, applicable to cases where the defense has not objected to the separation of the trial. The discovery of new evidence may amount to a special circumstance for the purposes of the Connelly principle and this must be all the more convincing where, at the time of the first trial, the prosecution has no reason to suppose that evidence of another offense may become available. The issue is whether the prosecution was aware at the time of dismissing the first charges that further incontrovertible evidence will later be discovered which is a matter for legal ethics.

In R v. Antoine, the defendant was convicted of two firearms offenses, including possession of a firearm without a certificate contrary to section 1(1)(a) Firearms Act 1968, and received four months’ imprisonment.⁵² The prosecution unsuccessfully sought to reopen his sentence and the defendant was subsequently charged with the more serious offense of possession of a firearm, contrary to section 5(1)(aba) of the Firearms Act of 1968, based on the same facts as the first prosecution. The Court of Appeal found there was nothing abusive about this second prosecution, holding that:

no one with the responsibility for prosecuting the case correctly applied their minds to the appropriate charges and how they should be prosecuted. This was not an escalation from minor charges to more serious charges […] but a move from misconceived charges to correct charges.⁵³

The court justified the second prosecution on the basis that the initial sentence of four months’ imprisonment was an “unexpected, astonishing and undeserved windfall.”⁵⁴ The reasoning is questionable when applied to the Connelly test that “special circumstances” to reopen a charge and in this instance this was an escalation from minor charges to more serious charges, and in the context that more serious charges were a reaction by the prosecution to its unsuccessful attempt to reopen sentence on the minor charges. This decision establishes the rule that special circumstances may exist where a previous conviction is founded on a prosecutorial charging mistake and or led to a lenient sentence. The court has the power in permitting a second trial to correct what it regards as flaws in a previous prosecution to ensure that conception of justice is not precluded.

In R v. Wangige (Joseph Karumba), there was a death of a victim in a road traffic incident in which the CPS, having initially examined the circumstances, concluded that an indictment for the driver to be charged for the death of the victim would not be reasonable.⁵⁵ The forensic collision investigator reached a different conclusion over the driving speed, and further evidence was submitted which led to a charge of causing death by dangerous driving two years after the sentence in the magistrates court for dangerous driving. The issue was autrefois convict, preventing a second conviction on the same facts of causing death by the driving of the accused.

The court sought to distinguish the case of Beedie, and conveyed the special circumstance which related to the circumstances that happened before and after the collision and the gravity of the offense. This was deemed fresh evidence and invoked Elrington, such that “whether a party accused of a minor offense is acquitted or convicted, he shall not be charged again on the same facts in a more aggravated form” (68). The Court also compared R v. Dwyer, where further new evidential materials were relied upon in the second prosecution and ruled, “In our judgment, the words ‘the same or substantially the same facts’ or ‘the same incident’ refer to the relevant state of affairs as they existed to the knowledge of the prosecutor at the date the proceedings were concluded” (25).⁵⁶ The Court stated that on a proper application of the principles in the previous case the “only proper course was to stay the second set of proceedings. It was oppressive and unfair for the appellant to have to face a second prosecution.”⁵⁷ The oppressiveness implied that the accused would have to face a second trial, which would be harsh on him and unfairness would mean that he had already been found not guilty of the offense in the previous trial. This was decided on the basis that the case was substantially reliant on the same facts, and no “special circumstances could be relied upon and in regard to the Crowns suggestion of a mistake and the issue of the fresh evidence correcting it.”⁵⁸ The Court concluded that in obtaining “fresh expert evidence” to “correct an error or oversight or omission relevant to a first charging decision can never sufficiently constitute a special circumstance.” This was a matter that depended on the facts of each case and its emphasis is on the “very close scrutiny” prior to any decision by the court for “a second prosecution that may fairly proceed.”⁵⁹

This case is in a sequence of cases which established that on the issue where autrefois convict prevents a second conviction on the same facts of causing death by driving of the accused, care needs to be taken that examination of the evidence is verifiable at the outset of proceedings. This is in order to maintain the principle of legal ethics and the court’s concern to prevent the delay in the finality of the judgment either from the Crown or from the defense witness.

Splitting of Indictments and Issue Estoppel

The principle of abuse of process in double jeopardy is a factor that the court will consider in proceeding where there is an indictment against the defendant. It is in the discretion of the court to consider that the defendant will receive a fair trial, and cases in which, although the defendant could be fairly tried, it is unfair to put him or her on trial.⁶⁰ In the first category are cases in which there has been a delay between the commission of the offense and the trial, where potential evidence has been lost or destroyed.⁶¹

The second category includes cases in which the prosecution has gone back on promises not to prosecute or to discontinue proceedings,⁶² and where the defendant has been brought within the jurisdiction in unlawful or unconscionable ways.⁶³ The formal burden of proof (on the balance of probabilities)⁶⁴ rests on the defendant, who normally has to show that there is “something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all other respects a regular proceeding.”⁶⁵

The most significant objection occurs in the circumstances where the prosecution wants to unreasonably split the indictment and bring a separate charge later based on the same offense. This must have been for the same crime, depending on the same evidence, and not for what is factually another crime, though having a semblance of connection with the offense originally charged.

The implication is that a second trial is permissible only when particular circumstances demand and the criteria would include acquiescence by the defendant to separate trials of two indictments. These cases are in the category where a subsequent event occurred in relation to the first trial such as the accidental fall to death of an assault victim of which the defendant has already been convicted for the offense of assault.

There is another rule which is derived from the case of Sambasivam v. Public Prosecutor, Federation of Malaya,⁶⁶ where the defendant Sambasivam was originally charged on two counts of possessing a firearm and possessing ammunition. It was alleged that he had made a statement which was a confession to both charges, but he denied making this statement. He was acquitted on the ammunition charge, but the firearm charge had to be retried. At the retrial, the confession was adduced in evidence, without reference to the acquittal, and the accused was convicted. The Privy Council, which heard appeals from the colony of Malaya, before its independence in 1957, held that this conviction should be set aside because it had not been made clear that, as regards the ammunition offense, the confession must be taken to be untrue. Lord MacDermott PC held that

The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offense. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim “Res judicata pro veritate accipitur” is no less applicable to criminal than to civil proceedings.⁶⁷

The impact of the rule is that an acquittal cannot subsequently be challenged in other proceedings against the same defendant by adducing evidence that he or she has in fact pleaded guilty of the offense of which he or she was acquitted. This principle was applied in R v. Hay where the accused signed a confession relating to charges of arson and burglary.⁶⁸ He was tried first for arson, and a redacted confession, removing all reference to the burglary, was put before the jury. He was acquitted after arguing that he had been tricked into signing the confession but was then charged with burglary, and the defense insisted that the entire confession should go before the jury in order that the previous acquittal could be relied upon to prove that at least some of the confession was false. The trial judge refused to allow this at the second trial. The Court of Appeal overturned the conviction. LJ O’Connell stated:

The jury ought to have been told of the acquittal and directed that it was conclusive evidence that the appellant was not guilty of arson, and that his confession to that offense was untrue. The jury should also have been directed that in deciding the contest between the appellant and the police officers as to the part of the statement referring to the burglary, they should keep in mind the first part must be regarded as untrue.⁶⁹

The case is similar to Sambasivam, which had reached a similar conclusion, that the confession must be taken to be untrue in so far as it related to the offense of which the defendant had been acquitted. It made no difference that it was the defense, rather than the prosecution, who sought to adduce it. The rule is not in accordance with DPP v. Humphrys, where the defendant was stopped by a police officer for speeding and charged with riding a motorcycle whilst disqualified.⁷⁰ He testified that it was a case of mistaken identity, as he had not ridden his motorcycle during the period of his disqualification, and was acquitted. Subsequent inquiries revealed that he had been riding his motorcycle whilst disqualified, and he was tried for perjury. The police officer repeated his evidence, which was inconsistent with the previous acquittal, and the defendant was convicted. The defendant appealed on the ground that, under the doctrine of issue estoppel, it did not matter whether he was the rider stopped by the police officer, which had already been finally settled in his favor. The House of Lords held that the doctrine of issue estoppel was confined to the civil law.⁷¹ The officer's evidence was therefore admissible.

A maze of principles needs to be discerned and navigated in the House of Lords rulings even if there is no issue estoppel in criminal trials. This rule is not applied because it would have barred the prosecution from asserting that the defendant Humphrys was guilty of the charge on which he had previously been acquitted. Sambasivam was distinguished on the ground that the rule was concerned with the binding nature of a previous acquittal rather than with the determination of any particular issue at the previous trial.⁷² However, this distinction is not sustainable because the police officer's evidence at the trial for perjury effectively contradicted the verdict at the previous trial, since the only issue in that trial was the rider's identity.⁷³

In Hunter v. Chief Constable of the West Midlands Police, the House of Lords observed that it had the inherent power, which a court of justice must possess, to prevent misuse of its procedure and in order to maintain the administration of justice.⁷⁴ Their Lordships dismissed the appeal, based on the fact that,

[where a] final decision had been made by a criminal court of competent jurisdiction it was a general rule of public policy that the use of a civil action to initiate a collateral attack on that decision was an abuse of the process of the court; and that such fresh evidence as the plaintiff sought to adduce in his civil action fell far short of satisfying the test to be applied in considering whether an exception to that general rule of public policy should be made, which, in the case of a collateral attack in a court of coordinate jurisdiction, was whether the fresh evidence entirely changed the aspect of the case.⁷⁵

The abuse of process in English courts this case identifies has been challenged in the civil courts for the purpose of mounting a collateral attack by the plaintiff made by a criminal court upon a decision he did not have a full opportunity of contesting in the court.⁷⁶ In the above case the decision the plaintiff sought to challenge was a ruling of a criminal court whose essence was that there is no issue estoppel in the criminal law. It is an area of law where the principles have to be discerned through the rulings of the courts and ethics have to be judged objectively because of separate jurisdictions of the two courts.

In integrating the rule derived from Sambasivam and the doctrine of autrefois acquit, the nonexistence of the issue estoppel in the criminal law has to be balanced with the Connelly principle on the exceptions to the rule against double jeopardy. Where an acquittal is quashed under an exception to the Sambasivam rule, thus enabling the defendant to be tried again for the same offense, the defense might argue that some or all of the prosecution evidence should be excluded under this rule. This is because it purports to contradict the previous acquittal, but such an argument may not be successful, because once the previous acquittal has been quashed the justification that might have existed for excluding evidence that would contradict the acquittal in the first trial is not pertinent in the second trial.⁷⁷ It is therefore most unlikely that the rule in Sambasivam could be invoked after an acquittal has been overridden under the notion that it had been tainted and against the ethical standards of criminal justice.

Rationale for the Rule in Common Law Courts

The common law courts have made the principle of the rule against double jeopardy a major plank of its laws because it has a nexus with legal ethics. The intention in the law should be to preserve the sanctity of the courts and not to undermine confidence in them by retrying offenders who have been tried once before for the same offense. It would reflect incompetency of the courts if they were unable to convict the offender in the first opportunity and thereby cause the accused to be placed in jeopardy to be retried, the prosecution or defense lawyers would be undermined along with their professional integrity as officers of the court.⁷⁸

The rationale has been defined in the U.S., which also follows the common law double jeopardy rule, and reinforced by the 5th Amendment of the Bill of Rights of the U.S. Constitution. Its underlying principles are included in the public policy considerations of the courts that protect the right of the accused to be not tried twice for an offense. These were formulated by the Supreme Court in a judgment in which the defense raised the issue of double jeopardy of the accused.⁷⁹ The Double Jeopardy Clause in the Fifth Amendment to the U.S. Constitution prohibits anyone from being prosecuted twice for substantially the same crime.

The relevant part of the Fifth Amendment states that “no person shall … be subject for the same offense to be twice put in jeopardy of life or limb.” The scope of the double jeopardy rule implies that not every sanction qualifies under the double jeopardy rule. Typically, only sanctions which can be considered as “punishment” would qualify under the rule, and the courts do not allow every sanction to qualify under the double jeopardy rule. The sanctions which can be considered as “punishment” would qualify under the rule. In principle, this encompasses the same elements of the U.K. doctrine; however, the U.S. case law, which has sought to define “same offense,” differs significantly from the U.K. law because of its restrictive approach.

In Blockburger v. United States there was a single transaction sale of illegal drugs by the defendant whom the jury sentenced to punishment under two different sections of the Narcotics Act.⁸⁰ The first section of the Act prohibited “selling any of the forbidden drugs except in or from the original stamped package,” while the second section prohibited selling any of the forbidden drugs “not in pursuance of a written order of the person to whom the drug is sold.”⁸¹ The Supreme Court ruled that the statute created two distinct offenses because “each of the offenses created requires proof of a different element.”⁸² The reasoning was that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”⁸³

The case was defined as the “same evidence test” because under this test a conviction or acquittal of one crime bars a later prosecution for a lesser-included offense.⁸⁴ For example, an acquittal for murder would bar prosecution for manslaughter, and more controversially, after an acquittal for manslaughter bar a later prosecution for murder.⁸⁵ This can also be interpreted as the “additional elements” test that is far more restrictive in its scope as it merely requires one additional element of an offense to be present for double jeopardy not to apply.

These criteria were temporarily expanded to resemble the “same acts” test in the U.K. in Grady v. Corbin;⁸⁶ however this change was much criticized.⁸⁷ It was eventually overruled by the Supreme Court in United States v. Dixon just a few years later.⁸⁸ The survival of the Blockburger test is based on a conceptual distinction between the U.K. approach and the U.S., where due process is that it is a clause defending the fundamental rights of the accused. This is how the primacy of place has been given to policy concerns in considering the Double Jeopardy Clause. Due to the nature of the U. S. Constitution, the historic development of judicial opinions, and a host of other cultural factors on both sides of the Atlantic, policy plays a far less prominent role in U.K. cases.⁸⁹

The second principle in American law which illustrates this point is the recognition in federal law of the collateral estoppel rule not accepted in English criminal law.⁹⁰ In Ashe v. Swenson,⁹¹ the U.S. Supreme Court recognized criminal collateral estoppel as an expansion of the common law double jeopardy rule.⁹² There were four defendants indicted for the armed robbery of a six-person poker game. Though they were initially charged with one count of armed robbery for each poker player, the petitioner went to trial only on the charge of robbing Donald Knight.⁹³ However, despite testimony from four of the poker players, “the State's evidence that the petitioner had been one of the robbers was weak.”⁹⁴

The jury returned a verdict of “not guilty due to insufficient evidence,” and was “not instructed to elaborate upon its verdict.”⁹⁵ Six weeks later the petitioner was tried again for the robbery of a different poker player. In the second trial, the government's “testimony was substantially stronger on the issue of the petitioner's identity.”⁹⁶ The witnesses, previously unable to identify the petitioner, now testified against him.⁹⁷ Moreover, the “State further refined its case at the second trial by declining to call one of the participants in the poker game whose identification testimony at the first trial had been conspicuously negative.”⁹⁸ The jury found the petitioner guilty of armed robbery and sentenced him to thirty-five years in prison.

Justice Stewart elucidated the reasoning of the court, and stated that while collateral estoppel was “first developed in civil litigation … ‘it cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt.’” As such, criminal collateral estoppel “is embodied in the Fifth Amendment guarantee against double jeopardy.”⁹⁹ He elaborated:

Though most acquittals are based upon a general verdict, courts must nonetheless examine the record of a prior proceeding … and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to fore-close.¹⁰⁰

After examining the evidence Stewart held that “the record is utterly devoid of any indication that the first jury could rationally have found that an armed robbery had not occurred, or that Knight had not been a victim of that robbery.”¹⁰¹ Therefore they must have found the defendant not guilty on the issue of identity.¹⁰² Since the prior jury decided that petitioner was not one of the men who held up the poker game, the same fact could not be relitigated in a subsequent trial.

The Blockburger test of same “same offense evidence” and the Ashe doctrine of collateral estoppel have liberalized the doctrine of double jeopardy in order to facilitate the policies underlying the Fifth Amendment. The most important is the protection of the individual against the power of the state and the strengthening of the due process clause. The American courts gradually broadened the protections afforded by the Fifth Amendment's Double Jeopardy Clause beyond the substantive law definition of crimes and placed emphasis on due process. This vast increase of the principle against double jeopardy in American law sets a different benchmark that of the CJA in the U.K. with its standard of compelling evidence as sufficient for a prosecution to be raised for the same offense for which the person had been previously charged.

Conclusion

The principle of the rule against double jeopardy in common law courts engages the legal ethics that are part of the due process of criminal trial. This is because if the accused is being indicted for the same offense on more than one occasion the basic principle is that there is a bar to jurisdiction, namely autrefois acquit and autrefois convict, that prevents repeated prosecutions. The defense plea of autrefois acquits signposts that if the accused in a criminal case has been acquitted previously for the same offense, then he should be discharged. The process of autrefois convict disbars the prosecution because the accused has been convicted previously for the same offense.

In English law, the CJA 2003 has changed the rule that a defendant cannot be tried for the same offense twice and this has engaged the legal ethics that are necessary part of the due process in a criminal trial. Section 75 covers a list of qualifying offenses and these can be retried once the permission is obtained from the DPP for them to be re prosecuted. The new prosecution, in order to proceed on a distinct factual basis, cannot logically rely on the same or similar facts as a previous prosecution. The court under the Connelly test, in assessing whether the evidence in a new prosecution discloses a distinct factual basis, does not always apply a formula but needs to identify the “special circumstances” that would make it “just and convenient” for the individual to be prosecuted again.

In the U.S. jurisdiction the courts have extended the protection of the rule against double jeopardy because the Bill of Rights and public policy not to allow the state additional power to usurp the autonomy of the individual. The Fifth Amendment's Double Jeopardy Clause applies beyond the strict definition of crimes required by the common law pleas that are framed on indictment. They have also allowed for the development of the criminal collateral estoppel and acknowledged the principle of double jeopardy as fundamental to the U.S. criminal justice system.

The protection against double jeopardy in common law courts is not only afforded by the advocates at the bar, because integral to legal ethics, but also by the judicial discretion to stay proceedings as an abuse of process. There is difficulty in trying a defendant fairly when the jury knows that senior judges have found the evidence “compelling,” but there is no clear overall argument for trial. In these circumstances, a retrial of the accused on the same charge breaches the autrefois doctrine, and severing of an indictment can lead to an abuse of the fair trial process.

Additional information

Notes on contributors

Zia Akhtar

Zia Akhtar holds a Master’s degree in law from London University. He is a member of Gray’s Inn, and a Ph.D. candidate at Coventry University specializing in criminal law and legal ethics.

Notes

[Disclosure Statement: No potential conflict of interest was reported by the author(s).]

1 Part 9 of the Criminal Justice Act 2003 gives the prosecution a right of appeal in circumstances where a judge makes either a ruling in relation to a trial on indictment, as a result of which the prosecution is terminated, either by way of an acquittal, or by reason of a stay, or by an order that the charge be “left on the file.” CJA 2003 Sections 58 and 74 (definition of “ruling”). Criminal Appeal Act 1968, Section 31.

2 Article 4, Protocol 7 (1): “No one shall be held guilty of any criminal offense on account of any act or omission which did not constitute a criminal offense under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offense was committed. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations” (2).

3 Ancient Greco-Roman precepts can be traced to one of the earliest known references: “The law of Athens was that once tried, a person could not be re-prosecuted on the same charge.” Demosthenes, 569.

4 Coffey, “A History of the Common Law,” 256.

5 Digest of Justinian, XV11.

6 Friedland, Double Jeopardy, 6.

7 Scott, The Civil Law, 17.

8 Stephen, A History of English Criminal Law, 49.

9 Thorpe. Ancient Laws and Institutes of England, 393–5.

10 Holdsworth, A History of English Law, 108–10.

11 Pollock and Maitland, The History of English Law, 446.

12 Duggan, “The Becket Dispute and the Criminous Clerks,” 4.

13 Pollack and Maitland, The History of English Law, 448.

14 Blackstone, Commentaries on the Laws, 329.

15 The Stephen Lawrence Inquiry, Para 38.

16 R v. Dobson and Norris (2011) EWCA Crim 1256.

17 There are a set of Qualifying offenses under Section 75, listed in Part 1 of Schedule 5 to the CJA.

18 White Paper Justice for All, Home Office, CM 5663. This report preceding the CJA stated “It was to apply to acquittals which took place before the law was changed, as well as those that happened afterwards.” Paragraph 4.66.

19 “First, the plea of autrefois acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life for more than once for the same offense and hence it is allowed as a consequence that when a man is once fairly found not guilty upon any indictment or other prosecution, before any court having competent jurisdiction of the offense he may plead such acquittal in bar of any subsequent accusation for the same crime.” Blackstone, Commentaries, 335, excerpted by Lawrence Newman, “Double Jeopardy and the Problem,” 252.

20 Section 76 of CJA.

21 The Crown cannot circumvent the rule by “describing the same facts in a different manner.” Reid and Miller, A Mixed Legal System in Transition, 164.

22 The rule against double jeopardy is only lifted once in respect of each qualifying offense: even if there is a subsequent discovery of new evidence, the prosecution may not apply for an order quashing the acquittal and seeking a retrial section 75(3).

23 Prior to the CJA there were three circumstances in which an apparently valid conviction or acquittal may be followed by a further trial for the same offense: prosecution appeal, retrial following appeal against conviction, and tainted acquittals.

24 Criminal Justice Act 2003, Section 79, Explanatory Notes, Interests of Justice, Para 322. Available at https://www.legislation.gov.uk/ukpga/2003/44/notes/division/4/10/5.

25 Schedule 5 of Section 75 of the CJA 2003 allows for a retrial following the Defendant's acquittal, in cases following accusations of Murder and Attempted Murder; Manslaughter; Kidnapping; and Arson, Endangering life or property.

26 Part 10, Section 41.

27 [1964] AC 1254.

28 Lord Morris, 1306.

29 Ibid., 1298.

30 Ibid., 1298–9.

31 Ibid., 1300–1.

32 Ibid., 1301.

33 Ibid.

34 Ibid., 1339.

35 Ibid., 1339–40.

36 Ibid.

37 Ibid.

38 Ibid., 1340.

39 Ibid.

40 Ibid.

41 Ibid., 1351.

42 Ibid., 1360.

43 [1977] AC 1.

44 Ibid., 46.

45 Ibid.

46 [1997] EWCA Crim 714.

47 Ibid., 366 E.

48 [1861] 1 B & S 688; 121 ER 170.

49 Ibid., 696.

50 Ibid.

51 Ibid., 366 E–F.

52 [2014] EWCA Crim 1971.

53 Para 25.

54 Ibid.

55 [2020] EWCA Crim 1319.

56 [2012] EWCA Crim 10.

57 Ibid., 60.

58 Ibid.

59 Ibid., 81.

60 R v. Beckford [1996] 1 Cr App R 94.

61 McNamara and McNamara [1998] Crim LR 278.

62 R v. Bloomfield [1997] 1 Cr App R 135; Townsend, Dearsley and Bretscher [1997] 2 Cr App R 540.

63 Regina v. Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42.

64 R v. Crown Court at Norwich, Ex parte Belsham [1992] 94 Cr App R 382; Gin (George Tan Soon) v. Cameron [1992] 2 AC 205, for a different result see R v. Telford JJ, ex parte Badhan [1991] 2QB 78.

65 R v. Hui Chi-Ming [1992] 1 AC 34, 57.

66 [1950] AC 458.

67 At 479.

68 [1983] 77 Cr App R 70.

69 R v. Hay [1860] 175 E.R. 933.

70 [1977] AC 1.

71 There is a limited exception in the case of an application for habeas corpus: Governor of Brixton Prison, Governor of Brixton Prison, ex p Osman [1991] 1 WLR 281.

72 Mirfield, “Shedding a Tear for Issue Estoppel,” 336. Also, see Andrews and Hirst, On Criminal Evidence, 761.

73 Hirst, “Contradicting Previous Acquittals,” argues that counsel for Humphrys did not rely on the rule in Sambasivam, because the House of Lords might have adopted a different approach, 510–525.

74 [1982] AC 529.

75 541H–542F, 544A–B, 545A, D–546A.

76 Hunter v. Chief Constable of the West Midlands Police [1982] AC 529. At 541 H.

77 Peter Mirfield bases his argument for the recognition of issue estoppel in criminal law on twin prerequisites: that of avoiding double jeopardy and that of finality. He argues “Estoppel, like other exclusionary rules, is an obstacle to the discovery of truth and therefore needs justification on grounds of policy”. “Shedding a Tear for Issue Estoppel”. CLR, 336 (1980): 336–37.

78 Several common law jurisdictions have followed the United Kingdom's lead. Since 2003 New South Wales, Queensland, and South Australia have passed some variant of the “new and compelling” evidence exception to the double jeopardy rule. These undertake to balance the rights of defence and prosecution, and to place the victim at the center of the criminal justice system. Hamer, “The Expectation of Incorrect Acquittals,” 63.

79 In Green v. United States (1957) 355 US 184. Black J. Held: “The underlying idea, one that is deeply ingrained in at least the Anglo-American systems of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty,” 187–8.

80 284 US 299 (1932).

81 Ibid., 303–4.

82 Ibid.

83 Ibid.

84 Cf. Harris v. Oklahoma, 433 U.S. (1977) (per curiam): “When … conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one,” 682.

85 Brown v. Ohio, 432 U.S. (1977): “Whatever the sequence may be, the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense,” 161, 169; see also McIntyre v. Caspari, 35 F.3d 338, 344 (8th Cir. 1994), holding that, as first-degree tampering was a lesser-included offense to stealing under Missouri law, a conviction for the formerly barred prosecution for the latter. The court established that the test whether the two charges against a defendant relate to the same offense is the “additional element test,” 344. The Supreme Court stated that after examining the nature of the two offenses, if it was clear that there was an additional element which had to be proved in relation to one of the charges, then the doctrine of double jeopardy did not apply as the charges related to different offenses and the individual could therefore be properly prosecuted in relation to both.

86 495 US 508 (1990).

87 Justice Brennen held that “a strict application of the Blockburger test is not the exclusive means of determining whether a subsequent prosecution violates the Double Jeopardy Clause,” 519–20.

88 509 US 688 (1993), 91–1231.

89 Coffin, “Double Take: Evaluating Double Jeopardy Reform,” 771–808.

90 DPP v. Humphrys, [1977] A.C. 1 (H.L. 1976). House of Lords rejected the doctrine of criminal collateral estoppel.

91 397 US 436 (1970).

92 Ibid., 442–5.

93 Ibid., 437–8.

94 Ibid., 438.

95 Ibid., 439.

96 Ibid., 440.

97 Ibid., 440. “For example, two witnesses who at the first trial had been wholly unable to identify the petitioner as one of the robbers, now testified that his features, size, and mannerisms matched those of one of their assailants. Another witness who before had identified the petitioner only by his size and actions now also remembered him by the unusual sound of his voice.”

98 Ibid.

99 Ibid., 444.

100 Ibid. quoting Mayers, Fletcher, and Yarbrough, “Bis Vexari,” 38–9.

101 Ibid., 445.

102 Ibid.