Double jeopardy
In jurisprudence, double jeopardy is a procedural defence that prevents an accused person from being tried again on the same or similar charges following an acquittal or conviction. Double jeopardy is a common concept in criminal law – in civil law, a similar concept is that of res judicata.
A variation in common law countries is the peremptory plea, which may take the specific forms of autrefois acquit or autrefois convict. These doctrines appear to have originated in ancient Roman law, in the broader principle non bis in idem.
Availability as a legal defence
If a double jeopardy issue is raised, evidence will be placed before the court, which will typically rule as a preliminary matter whether the plea is substantiated; if it is, the projected trial will be prevented from proceeding. In some countries, certain exemptions are permitted. In Scotland, a new trial can be initiated if, for example, the acquitted has made a credible admission of guilt. Part of English law for over 800 years, it was partially abolished in England, Wales and Northern Ireland by the Criminal Justice Act 2003 where, following demand for change, serious offences may be re-tried following an acquittal if new and compelling evidence is found, and if the trial is found to be in the public's interest. In some countries, including Canada, Mexico, and the United States, the guarantee against double jeopardy is a constitutional right. In other countries, the protection is afforded by statute.In common law countries, a defendant may enter a peremptory plea of autrefois acquit or autrefois convict, with the same effect.
Double jeopardy is not a principle of international law. It does not apply between different countries, unless having been contractually agreed on between those countries as, for example, in the European Union, and in various extradition treaties between two countries.
International Covenant on Civil and Political Rights
The 72 signatories and 166 parties to the International Covenant on Civil and Political Rights recognise, under Article 14 : "No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country." However, it does not apply to prosecutions by two different sovereigns.European Convention on Human Rights
All members of the Council of Europe have adopted the European Convention on Human Rights. The optional Protocol No. 7 to the convention, Article 4, protects against double jeopardy: "No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he or she has already been finally acquitted or convicted in accordance with the law and penal procedure of that State."All EU states ratified this optional protocol except for Germany, the United Kingdom, and the Netherlands. In those member states, national rules governing double jeopardy may or may not comply with the provision cited above.
Member states may, however, implement legislation which allows the reopening of a case if new evidence is found or if there was a fundamental defect in the previous proceedings:
In many European countries, the prosecution may appeal an acquittal to a higher court. This is not regarded as double jeopardy, but as a continuation of the same case. The European Convention on Human Rights permits this by using the phrase "finally acquitted or convicted" as the trigger for prohibiting subsequent prosecution.
By country
Australia
In contrast to other common law nations, Australian double jeopardy law has been held to further prevent the prosecution for perjury following a previous acquittal where a finding of perjury would controvert the acquittal. This was confirmed in the case of R v Carroll, where the police found new evidence convincingly disproving Carroll's sworn alibi two decades after he had been acquitted of murder charges in the death of Ipswich child Deidre Kennedy, and successfully prosecuted him for perjury. Public outcry following the overturn of his conviction by the High Court has led to widespread calls for reform of the law along the lines of the England and Wales legislation.During a Council of Australian Governments meeting of 2007, model legislation to rework double jeopardy laws was drafted, but there was no formal agreement for each state to introduce it. All states have now chosen to introduce legislation that mirrors COAG's recommendations on "fresh and compelling" evidence.
In New South Wales, retrials of serious cases with a minimum sentence of 20 years or more are now possible even if the original trial preceded the 2006 reform. On 17 October 2006, the New South Wales Parliament passed legislation abolishing the rule against double jeopardy in cases where:
- an acquittal of a "life sentence offence" is debunked by "fresh and compelling" evidence of guilt;
- an acquittal of a "15 years or more sentence offence" was tainted.
In Western Australia, amendments introduced on 8 September 2011 allow retrial if "new and compelling" evidence is found. It applies to serious offences where the penalty is life imprisonment or imprisonment for 14 years or more. Acquittal because of tainting also permits retrial.
In Tasmania, on 19 August 2008, amendments were introduced to allow retrial in serious cases if there is "fresh and compelling" evidence.
In Victoria on 21 December 2011, legislation was passed allowing new trials where there is "fresh and compelling DNA evidence, where the person acquitted subsequently admits to the crime, or where it becomes clear that key witnesses have given false evidence". However, retrial applications could only be made for serious offences such as murder, manslaughter, arson causing death, serious drug offences and aggravated forms of rape and armed robbery.
In Queensland on 18 October 2007, the double jeopardy laws were modified to allow a retrial where fresh and compelling evidence becomes available after an acquittal for murder or a "tainted acquittal" for a crime carrying a 25-year or more sentence. A "tainted acquittal" requires a conviction for an administration of justice offence, such as perjury, that led to the original acquittal.
Canada
The Canadian Charter of Rights and Freedoms includes provisions such as section 11 prohibiting double jeopardy. However, the prohibition only applies after an accused person has been "finally" convicted or acquitted. Canadian law allows the prosecution to appeal an acquittal based on legal errors. In rare circumstances, when a trial judge made all the factual findings necessary for a finding of guilt but misapplied the law, a court of appeal might also directly substitute an acquittal for a conviction. These cases are not considered double jeopardy because the appeal and the subsequent conviction are deemed to be a continuation of the original trial.For an appeal from an acquittal to be successful, the Supreme Court of Canada requires the Crown prosecutor to show that an error in law was made during the trial and that it contributed to the verdict. It has been argued that this test is unfairly beneficial to the prosecution. For instance, in his book My Life in Crime and Other Academic Adventures, Martin Friedland contends that the rule should be changed so that a retrial is granted only when the error is shown to be responsible for the verdict, not just a factor.
Though the charter permits appeals of acquittals, there are still constitutional limits imposed on the scope of these appeals. In Corp. Professionnelle des Médecins v. Thibault, the Supreme Court struck down a provision of Quebec law that allowed appellate courts to conduct a de novo review of both legal and factual findings. In doing so, it held that the scope of an appeal may not extend to challenging findings of fact where no legal error has been made. At this point, the court reasoned, the process ceases to be an appeal and instead becomes a new trial disguised as one.
A notable example cited by critics of Canada's appeal system is the case of Guy Paul Morin, who was wrongfully convicted in his second trial after the acquittal in his first trial was vacated by the Supreme Court. Another notable use of the system occurred in the case of child murderer Guy Turcotte, the Quebec Court of Appeal overturned the initial verdict of not criminally responsible by reason of mental disorder and ordered a second trial after it found that the judge had erroneously instructed the jury. Turcotte was later convicted of second-degree murder in the second trial. Another well-known example is Henry Morgentaler, whose repeated acquittals by juries were overturned on appeal in multiple provinces.
France
Once all appeals have been exhausted on a case, the judgement is final and the action of the prosecution is closed, except if the final ruling was forged. Prosecution for a crime already judged is impossible even if incriminating evidence has been found. However, a person who has been convicted may request another trial on the grounds of new exculpating evidence through a procedure known as révision.French law allows the prosecution to appeal an acquittal.
Germany
The Basic Law for the Federal Republic of Germany protects against double jeopardy if a final verdict is pronounced. A verdict is final if nobody appeals against it.However, each trial party can appeal against a verdict in the first instance. The prosecution or the defendants can appeal against a judgement if they disagree with it. In this case, the trial starts again in the second instance, the court of appeal, which reconsiders the facts and reasons and delivers a final judgement.
If one of the parties disagrees with the second instance's judgement, they can appeal it only for formal judicial reasons. The case will be checked in the third instance to see whether all laws were correctly applied.
The rule applies to the whole "historical event, which is usually considered a single historical course of actions the separation of which would seem unnatural". This is true even if new facts come to light that indicate other crimes.
The Penal Procedural Code permits a retrial, if it is in favour of the defendant or if the following events have happened:
In the case of an order of summary punishment, which can be issued by the court without a trial for lesser misdemeanours, there is a further exception:
In Germany, a felony is defined by § 12 StGB as a crime that has a minimum of one year of imprisonment.