Rule Against Double Jeopardy - Report Example

Rule against Double Jeopardy Introduction Double jeopardy is the act of ing someone to the court proceedings for a matterthat has been concluded for a second time1. The matter may have been closed through dismissal or conclusion though judgment. This also applies to where a person is given two punishments for the same offense. The main objective of the law against double jeopardy is to prevent the state from dealing with accused persons the way they want, and also to strengthen investigations because once the accused has been acquitted, the law would not allow the same to be brought back. According to the social contract, which led to the development of the state, and the laws, all persons are equal before the law and even the state is portrayed to be in an almost similar bargaining power. However, the state and the people are not on an equal bargaining power because the state has the resources and the ability to influence the course of the criminal proceedings. Finally, the double jeopardy is meant to give a credible finality in criminal proceedings and to keep the acquitted or the convicted persons at peace that it is finally over. However, it is appreciated that there are some offenses that are very well planned.2 The prosecution’s office is an office that is meant to be on the lookout and prosecute those who go against the law. The prosecution is to investigate and deliver evidence in court that should be strong enough to achieve a conviction of the accused person. However, if the crime was well planned, the prosecutor may find it hard to get the right evidence that will lead to a conviction. However, with time the prosecution may come across the evidence it requires to secure a conviction of the accused person. This is the basis in which the Part 10 of the Criminal Justice Act 2003 was enacted3. Overview of Part 10 of the Criminal Justice Act 2003 Part 10 of the Criminal Justice Act 2003 is a provision that was introduced into the criminal justice Act to deal with cases that had been previously closed, but new evidence and change of circumstances have occurred necessitating that they be retried. The part is very clear on the conditions that apply before a retrial, and this is because it is a fight against, the common law concept of, autrefois acquit and autrefois convict. The new evidence that is to be used in the retrial phase should be very compelling and strong such that the evidence can sustain a conviction. The consent to retry has to be sought from the DPP in person and not on any one even if the person is acting for the DPP. The consent to be sought should also include the consent to apply to the court of appeal for a retrial. The application will be considered by both the DPP and the court of appeal on whether to reopen the prosecution and if both are of the opinion that it is good for the public interest then the retrial will be done. The application to the court of appeal is also to facilitate the setting aside of the prior judgment before the new trial is started. It should be noted that this is a testing point because the court can allow the re-open the case or not depending on the circumstances surrounding the application for retrial. Path to the Part 10 of the Criminal Justice Act 2003 The path to the enactment of the Part 10 of the Criminal Justice Act 2003, was not a very clear path, but it was a path nonetheless that most agreed that there was a need to revive closed prosecution cased. The murder of Stephen Lawrence and the subsequent investigation into his murder, and the acquittal of the accused persons shed light on the need for a retrial. In that case, when Stephen Lawrence was murdered, three suspects were identified and tried for the commission of the offense. However, the evidence of the prosecution’s main identifying witness was not very clear such that the matter was closed and the accused persons were acquitted. After the acquittal, the Sir William Macpherson inquiry came up with considerations of the matter and their suggestions into the way forward. In their report, the inquiry noted that the very provision of criminal process against double jeopardy, which seeks to alleviate injustice from the accused persons, would indeed lead to injustice because it leads to the permanent acquittal of criminals. The inquiry gave an exception to the case, noting that if fresh and compelling evidence were to be received, the state would be out of options because of the double jeopardy rule. The committee made an exception in the case that if fresh evidence into the murder were to be received, and then the court would be in a position by application to set aside the acquittal and allow for a retrial. This can be said to be the first step in the direction of a retrial. The second point at which the need for the double jeopardy provisions were appreciated, was a consultation paper that was written by the Law commission in 19994. The consultation paper was on double jeopardy and it considered the provisions of the European Convention of Human Rights, Article 4 Protocol 7. This protocol of the European Convention on Human Rights provides for a retrial when there is new evidence that has been received for he closed matter, and when the first trial was very defective5. The convention provides for situations where the rule against double jeopardy can be used, and it also provides that the rule against double jeopardy can only be invoked once. The other requirements are that there must be compelling evidence, and this evidence should have been unavailable during the first trial. The new evidence should also be compelling and the prosecution should have a chance of success in the second trial6. This was an admission that the access of justice is a fundamental human right, and even those that have been wronged are entitled to justice even when a case has been brought into a conclusion. The fact that the new evidence is to be considered at length before the rule can be invoked, goes to show that there are enough checks in place to ensure that the rule against double jeopardy is not misused. The fact also that such a rule exists in the European Convection on Human Rights means that there is a universally accepted principle and interest that justice should be achieved even long after the commission of the crime. The Home Affairs Committee also in consideration for the rule against double jeopardy appreciated that the world is advancing technologically, and that scientific methods such as DNA testing is able to get more reliable evidence than it did in the 1980s. The availability of accurate evidence would ensure that the accused person is convicted for the offense he had committed and this would not be a case of trial and error. The committee also appreciated that for a consideration of the rule against double jeopardy, some serious crimes of public importance should be the only ones that are considered and that the rule should not be available for use against all offenses. After long deliberations, the crimes of murder, rape, manslaughter were added to the list of the offenses that the rule could apply. Application of the Part 10 of the Criminal Justice Act 2003 In the case of R v Dunlop7, the concept of Part 10 of the Criminal Justice Act 2003 was tried in depth and it succeeded. In that case, the accused person had been accused, prosecuted and acquitted of a murder charge. The acquittal came about because the jury could not find any compelling evidence with which to convict the accused of the alleged crime. It should be noted at this point that the standard of prove in criminal cases is very high because the court require a proof beyond reasonable doubt. Therefore, when the evidence on record is not strong enough to allow for a conviction, the jury will pass a no guilty verdict and the accused is acquitted. In this case, after the acquittal of the accused person, there was new evidence when the accused person confessed to have committed the offense and admitted the commission of perjury. On application to the court, the court found that the new evidence was compelling enough and it ordered for a retrial. Of importance on this case, is that the accused person was admitting to perjury but he did not know that the admission that he had lied about his plea would mean that he had lied that he had not committed murder and thus lead to a retrial. Therefore, it is irrelevant what the accused person believes, and eve whether he knows that he will be retried. What is of importance is that he admits the commission of the offense, or he acts in such a way that new compelling evidence is achieved. In yet another case of R v Miell8, the circumstances were different because even though the accused confessed to the commission of the offense, the court refused to lift the acquittal and order for a retrial because the evidence was not compelling enough. In that case, he accused had been charged and acquitted on a count of murder because there was no enough evidence to warrant a conviction. Later, the accused was convicted on unrelated offenses later on and he confessed to the murder offense while he was in prison. On application to the court for the setting aside of the acquittal judgment, the court refused on the account that the new evidence was not credible. The court held that the accused had confessed to so many offenses that the court is at cross roads on what to make out of the confessions. From this case, is clear that the intentions of the court are very clear when ordering for a retrial and the same is based on the achievement of justice. The interests of the accused person are considered vis a vis the public interest and if it is discovered that the evidence is not credible enough, the court refuses to grant a retrial. Way forward From the above analysis, it is noted that the rule against double jeopardy was effected after a series of considerations. The main reasons why the rule was effected was to safeguard justice to the public when new evidence has been discovered. It is noted that the main objective of criminal law is to safeguard justice by punishing offenders. Therefore, giving a leeway to offenders because of insufficient evidence is not of public interest and it only serves to benefit the offenders. The progression of technological methods also mean that there are better ways of evidence analysis such as DNA, finger prints analysis and even blood spatter analysis9. Therefore, the main objective of criminal law should be the identification of the right criminals, and the time frame should not be of concern. It is also appreciated that the dignity and integrity of criminal justice system will be achieved if the law is made to constantly follow technological advancement. As the world advances and new technological inventions are achieved, it is good to ensure that the law also grows so that instances where the law is humiliated are eliminated. It is also appreciated that the rule against double jeopardy is strictly applied by the court according to the Act, and not any offense can be retried. Even before a retrial, the court has to be convinced that the evidence is probable. This is to ensure that the prosecution is kept on its toes during investigation so as to qualify for the rule against double jeopardy10. Therefore, part 10 of the Criminal Justice Act 2003, should not be repealed because it serves the core objective of the criminal justice system. Bibliography 1. Bradley, A. (2013). Constitutional and Administrative Law. London: Longman Publishers 2. Double Jeopardy : Law Commission Consultation Paper no 156 3. Criminal Justice Act 2003 4. Eliot, M. (2013). Public Law. Oxford: Oxford University Press 5. Herring, J. (2013). Criminal Law: Text, Cases, and Materials. Oxford: Oxford University Press 6. Law Commission report no 267 7. Lyle, D. P. (2012). Bloodstain pattern tell the story. Forensic Guide for writers. Writer’s Digest Books, Cincinnati. Pp 285-302. 8. R v Dunlop [2006] EWCA Crim 1354 9. R v Miell [2007] EWCA Crim 3130 10. Safestein, R. (2014). Criminalistics: Introduction to Forensic Science. NJ: Pearson Education 11. Read More