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In
jurisprudence Jurisprudence, or legal theory, is the theoretical study of the propriety of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and they also seek to achieve a deeper understanding of legal reasoning ...
, double jeopardy is a procedural defence (primarily in
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
jurisdictions) that prevents an accused person from being
tried In law, a trial is a coming together of parties to a dispute, to present information (in the form of evidence) in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court. The tribunal, ...
again on the same (or similar) charges following an
acquittal In common law jurisdictions, an acquittal certifies that the accused is free from the charge of an offense, as far as criminal law is concerned. The finality of an acquittal is dependent on the jurisdiction. In some countries, such as the ...
or conviction and in rare cases prosecutorial and/or judge misconduct in the same
jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. J ...
. Double jeopardy is a common concept in
criminal law Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law ...
. In civil law, a similar concept is that of . Variation in
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
countries is the peremptory plea, which may take the specific forms of ('previously acquitted') or ('previously convicted'). These doctrines appear to have originated in ancient
Roman law Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the '' Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
, in the broader principle ('not twice against the same').


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 being "twice put in jeopardy" is a constitutional right. In other countries, the protection is afforded by
statute A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by ...
. In
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
countries, a defendant may enter a peremptory plea of ('previously acquitted') or ('previously convicted'), with the same effect. Double jeopardy is not a principle of
international law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
. It does not apply between different countries, unless having been contractually agreed on between those countries as, for example, in the
European Union The European Union (EU) is a supranational union, supranational political union, political and economic union of Member state of the European Union, member states that are located primarily in Europe, Europe. The union has a total area of ...
(Art. 54 Schengen Convention), 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 The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, fre ...
recognise, under Article 14 (7): "No one shall be liable to be tried or punished again for an offence for which he has already been finally
convicted In law, a conviction is the verdict reached by a court of law finding a defendant guilty of a crime. The opposite of a conviction is an acquittal (that is, "not guilty"). In Scotland, there can also be a verdict of " not proven", which is co ...
or acquitted in accordance with the law and penal procedure of each country." However, it does not apply to prosecutions by two different sovereigns (unless the relevant extradition treaty expresses a prohibition).


European Convention on Human Rights

All members of the
Council of Europe The Council of Europe (CoE; french: Conseil de l'Europe, ) is an international organisation founded in the wake of World War II to uphold human rights, democracy and the rule of law in Europe. Founded in 1949, it has 46 member states, with a p ...
(which includes nearly all European countries and every member of the
European Union The European Union (EU) is a supranational union, supranational political union, political and economic union of Member state of the European Union, member states that are located primarily in Europe, Europe. The union has a total area of ...
) have adopted the
European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...
. 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 law, a conviction is the verdict reached by a court of law finding a defendant guilty of a crime. The opposite of a conviction is an acquittal (that is, "not guilty"). In Scotland, there can also be a verdict of " not proven", which is co ...
in accordance with the law and penal procedure of that State." All EU states ratified this optional protocol except for
Germany Germany,, officially the Federal Republic of Germany, is a country in Central Europe. It is the second most populous country in Europe after Russia, and the most populous member state of the European Union. Germany is situated betwee ...
, the
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and ...
, and the
Netherlands ) , anthem = ( en, "William of Nassau") , image_map = , map_caption = , subdivision_type = Sovereign state , subdivision_name = Kingdom of the Netherlands , established_title = Before independence , established_date = Spanish Netherl ...
. 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 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 Perjury (also known as foreswearing) is the intentional act of swearing a false oath or falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding."Perjury The act or an inst ...
following a previous acquittal where a finding of perjury would controvert the acquittal. This was confirmed in the case of ''
R v Carroll ''R v Carroll'' (2002) 213 CLR 635; [2002] HCA 55 is a decision of the High Court of Australia which unanimously upheld a Queensland appellate court's decision to stay an indictment for perjury as the indictment was found to controve ...
'', where the police found new evidence convincingly disproving Carroll's sworn
alibi An alibi (from the Latin, '' alibī'', meaning "somewhere else") is a statement by a person, who is a possible perpetrator of a crime, of where they were at the time a particular offence was committed, which is somewhere other than where the crim ...
two decades after he had been acquitted of murder charges in the death of
Ipswich Ipswich () is a port town and borough in Suffolk, England, of which it is the county town. The town is located in East Anglia about away from the mouth of the River Orwell and the North Sea. Ipswich is both on the Great Eastern Main Line ...
child Deidre Kennedy, and successfully prosecuted him for perjury. Public outcry following the overturn of his conviction (for perjury) 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 (COAG) 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 ) , nickname = , image_map = New South Wales in Australia.svg , map_caption = Location of New South Wales in AustraliaCoordinates: , subdivision_type = Country , subdivision_name = Australia , established_title = Before federation , es ...
, 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" (
murder Murder is the unlawful killing of another human without justification or valid excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person without justification or excuse, especially the ...
, violent
gang rape Gang rape, also called serial gang rape, group rape, or multiple perpetrator rape in scholarly literature,Ullman, S. E. (2013). 11 Multiple perpetrator rape victimization. Handbook on the Study of Multiple Perpetrator Rape: A Multidisciplinary Re ...
, large commercial supply or production of illegal drugs) is debunked by "fresh and compelling" evidence of guilt; * an acquittal of a "15 years or more sentence offence" was tainted (by perjury,
bribery Bribery is the offering, giving, receiving, or soliciting of any item of value to influence the actions of an official, or other person, in charge of a public or legal duty. With regard to governmental operations, essentially, bribery is "Cor ...
, or perversion of the course of justice). On 30 July 2008,
South Australia South Australia (commonly abbreviated as SA) is a States and territories of Australia, state in the southern central part of Australia. It covers some of the most arid parts of the country. With a total land area of , it is the fourth-largest o ...
also introduced legislation to scrap parts of its double jeopardy law, legalising retrials for serious offences with "fresh and compelling" evidence, or if the acquittal was tainted. In
Western Australia Western Australia (commonly abbreviated as WA) is a state of Australia occupying the western percent of the land area of Australia excluding external territories. It is bounded by the Indian Ocean to the north and west, the Southern Ocean to t ...
, amendments introduced on 8 September 2011 allow retrial if "new and compelling" evidence is found. It applies to serious offences where the penalty was life imprisonment or imprisonment for 14 years or more. Acquittal because of tainting (
witness intimidation Witness tampering is the act of attempting to improperly influence, alter or prevent the testimony of witnesses within criminal or civil proceedings. Witness tampering and reprisals against witnesses in organized crime cases have been a difficult ...
, jury tampering, or perjury) also permits retrial. In
Tasmania ) , nickname = , image_map = Tasmania in Australia.svg , map_caption = Location of Tasmania in AustraliaCoordinates: , subdivision_type = Country , subdi ...
, 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 ) , nickname = Sunshine State , image_map = Queensland in Australia.svg , map_caption = Location of Queensland in Australia , subdivision_type = Country , subdivision_name = Australia , established_title = Before federation , establishe ...
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. Unlike reforms in the United Kingdom, New South Wales, Tasmania, Victoria, South Australia and Western Australia, this law does not have a retrospective effect, which is unpopular with some advocates of the reform.


Canada

The
Canadian Charter of Rights and Freedoms The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part ...
includes provisions such as section 11(h) 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 A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much ...
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 The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
requires the Crown 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 Quebec ( ; )According to the Canadian government, ''Québec'' (with the acute accent) is the official name in Canadian French and ''Quebec'' (without the accent) is the province's official name in Canadian English is one of the thirte ...
law that allowed
appellate courts A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of ...
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 a 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 Guy Turcotte (born April 21, 1972) is a Canadian convicted murderer and former cardiologist. On February 21, 2009, Turcotte murdered his two children in Piedmont, Quebec, Canada, by stabbing his five-year-old son 27 times and his three-year-old da ...
, the
Quebec Court of Appeal The Court of Appeal of Quebec (sometimes referred to as Quebec Court of Appeal or QCA) (in French: ''la Cour d'appel du Québec'') is the highest judicial court in Quebec, Canada. It hears cases in Quebec City and Montreal. History The Court wa ...
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.


France

Once all appeals have been exhausted on a case, the judgement is final and the action of the prosecution is closed (code of penal procedure, art. 6), 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 (''Grundgesetz'') 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 (''Berufungsgericht''), 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 (''Revisionsgericht''), whether all laws are applied correctly. 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 occur that indicate other crimes. The Penal Procedural Code (''Strafprozessordnung'') permits a retrial (''Wiederaufnahmeverfahren''), if it is in favour of the defendant or if the following events had 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 (1) StGB as a crime that has a minimum of one year of imprisonment.


India

A partial protection against double jeopardy is a Fundamental Right guaranteed under Article 20 (2) of the
Constitution of India The Constitution of India ( IAST: ) is the supreme law of India. The document lays down the framework that demarcates fundamental political code, structure, procedures, powers, and duties of government institutions and sets out fundamental ...
, which states "No person shall be prosecuted and punished for the same offence more than once". This provision enshrines the concept of ''autrefois convict'', that no one convicted of an offence can be tried or punished a second time. However, it does not extend to ''autrefois acquit'', and so if a person is acquitted of a crime he can be retried. In India, protection against ''autrefois acquit'' is a
statutory right Some philosophers distinguish two types of rights, natural rights and legal rights. * Natural rights are those that are not dependent on the laws or customs of any particular culture or government, and so are ''universal'', ''fundamental'' and ...
, not a fundamental one. Such protection is provided by provisions of the Code of Criminal Procedure rather than by the Constitution.


Japan

The
Constitution of Japan The Constitution of Japan (Shinjitai: , Kyūjitai: , Hepburn romanization, Hepburn: ) is the constitution of Japan and the supreme law in the state. Written primarily by American civilian officials working under the Allied occupation of Japa ...
, which came into effect on 3 May 1947, states in Article 39 that However, in 1950, one defendant was found guilty in the District Court for crimes related to the election law and was sentenced to paying a fine. The prosecutor wanted a stronger sentence and appealed to the High Court. As a result, the defendant was sentenced to three months of imprisonment. He appealed to the Supreme Court on the grounds that the sentence was excessive when compared with precedents and that he had been placed in double jeopardy, which was in violation of Article 39. On 27 September 1950, all fifteen judges of the Supreme Court made the Grand Bench Decision to rule against the defendant and declared that a criminal proceeding in the District Court, High Court and Supreme Court is all one case and that there is no double jeopardy. In other words, if the prosecutor appeals against a judgement of not guilty or a guilty decision that they think does not impose a severe enough sentence, the defendant will not be placed in double jeopardy. On 10 October 2003, the Supreme Court made a landmark decision in the area of double jeopardy. The case involved Article 235 of the Penal Code, which addresses “simple larceny”, and Article 2 of the Law for Prevention and Disposition of Robbery, Theft, etc., which addresses “habitual larceny”. The Court ruled that in the event that there are two trials for separate cases of simple larceny, it will not be considered double jeopardy, even if the prosecutor could have charged both of them as a single crime of habitual larceny. The defendant in this case had committed crimes of trespassing and simple larceny on 22 separate occasions. The defence counsel argued that the crimes were actually one offence of habitual larceny and that charging them as separate counts was double jeopardy. The Supreme Court ruled that it was within the prosecutor’s discretion as to whether to charge the defendant with one count of habitual larceny or to charge them with multiple counts of trespassing and simple larceny. In either case, it is not considered double jeopardy.


The Netherlands

In the Netherlands, the state prosecution can appeal a not-guilty verdict at the bench. New evidence can be applied during a retrial at a district court. Thus one can be tried twice for the same alleged crime. If one is convicted at the district court, the defence can make an appeal on procedural grounds to the supreme court. The supreme court might admit this complaint, and the case will be reopened yet again, at another district court. Again, new evidence might be introduced by the prosecution. On 9 April 2013 the Dutch senate voted 36 "yes" versus 35 "no" in favour of a new law that allows the prosecutor to re-try a person who was found not guilty in court. This new law is limited to crimes where someone died and new evidence must have been gathered. The new law also works retroactively.


Pakistan

Article 13 of the
Constitution of Pakistan The Constitution of Pakistan ( ur, ), also known as the 1973 Constitution, is the supreme law of Pakistan. Drafted by the government of Zulfikar Ali Bhutto, with additional assistance from the country's opposition parties, it was approved by ...
protects a person from being punished or prosecuted more than once for the same offence. Section 403 o
The Code of Criminal Procedure
contemplates of a situation where as person having once been tried by a Court of competent jurisdiction and acquitted by such court cannot be tried again for the same offence or for any other offence based on similar facts. The scope of section 403 is restricted to criminal proceedings and not to civil proceedings and departmental inquiries.


Serbia

This principle is incorporated into the Constitution of the Republic of Serbia and further elaborated in its Criminal Procedure Act.


South Africa

The
Bill of Rights A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pr ...
in the
Constitution of South Africa The Constitution of South Africa is the supreme law of the Republic of South Africa. It provides the legal foundation for the existence of the republic, it sets out the rights and duties of its citizens, and defines the structure of the Gov ...
forbids a retrial when there has already been an acquittal or a conviction.


South Korea

Article 13 of the
South Korean constitution The Constitution of the Republic of Korea () is the supreme law of South Korea. It was promulgated on July 17, 1948, and last revised on October 29, 1987. Background The Provisional Charter of Korea The preamble of the Constitution of South ...
provides that no citizen shall be placed in double jeopardy.


United Kingdom


England and Wales

Double jeopardy has been permitted in
England and Wales England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is En ...
in certain (exceptional) circumstances since the Criminal Justice Act 2003.


= Pre-2003

= The doctrines of '' autrefois acquit'' and ''autrefois convict'' persisted as part of the
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
from the time of the
Norman conquest of England The Norman Conquest (or the Conquest) was the 11th-century invasion and occupation of England by an army made up of thousands of Norman, Breton, Flemish, and French troops, all led by the Duke of Normandy, later styled William the Conqu ...
; they were regarded as essential elements for protection of the subject's liberty and respect for
due process Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual per ...
of law in that there should be finality of proceedings. There were only three exceptions, all relatively recent, to the rules: * The prosecution has a right of appeal against acquittal in summary cases if the decision appears to be wrong in law or in excess of jurisdiction. * A retrial is permissible if the interests of justice so require, following appeal against conviction by a defendant. * A "tainted acquittal", where there has been an offence of interference with, or intimidation of, a juror or witness, can be challenged in the High Court.Criminal Procedure and Investigations Act 1996 s.54 In '' Connelly v DPP'' 964AC 1254, the Law Lords ruled that a defendant could not be tried for any offence arising out of substantially the same set of facts relied upon in a previous charge of which he had been acquitted, unless there are "special circumstances" proven by the prosecution. There is little case law on the meaning of "special circumstances", but it has been suggested that the emergence of new evidence would suffice. A defendant who had been convicted of an offence could be given a second trial for an aggravated form of that offence if the facts constituting the aggravation were discovered after the first conviction. By contrast, a person who had been acquitted of a lesser offence could not be tried for an aggravated form even if new evidence became available.


= Post-2003

= Following the murder of Stephen Lawrence, the Macpherson Report recommended that the double jeopardy rule should be abrogated in murder cases, and that it should be possible to subject an acquitted murder suspect to a second trial if "fresh and viable" new evidence later came to light. The Law Commission later added its support to this in its report "Double Jeopardy and Prosecution Appeals" (2001). A parallel report into the criminal justice system by Lord Justice Auld, a past
Senior Presiding Judge The Senior Presiding Judge for England and Wales is a member of the Court of Appeal appointed by the Lord Chief Justice to supervise the Presiding Judges for the various judicial circuits of England and Wales. The Senior Presiding Judge is responsi ...
for England and Wales, had also commenced in 1999 and was published as the Auld Report six months after the Law Commission report. It opined that the Law Commission had been unduly cautious by limiting the scope to murder and that "the exceptions should ..extend to other grave offences punishable with life and/or long terms of imprisonment as Parliament might specify." 1999 was also the year of a highly-publicised case in which a man, David Smith, was convicted of the murder of a
prostitute Prostitution is the business or practice of engaging in Sex work, sexual activity in exchange for payment. The definition of "sexual activity" varies, and is often defined as an activity requiring physical contact (e.g., sexual intercourse, n ...
after having been acquitted of the "almost identical" murder of sex worker Sarah Crump 6 years previously. Because of the double jeopardy laws that existed at the time, Smith could not be re-tried for Crump's murder, despite police insisting they were not looking for anybody else and that the case was closed and the BBC reporting that Smith had "beat" the earlier murder charge. Both Jack Straw (then
Home Secretary The secretary of state for the Home Department, otherwise known as the home secretary, is a senior minister of the Crown in the Government of the United Kingdom. The home secretary leads the Home Office, and is responsible for all nationa ...
) and
William Hague William is a male given name of Germanic origin.Hanks, Hardcastle and Hodges, ''Oxford Dictionary of First Names'', Oxford University Press, 2nd edition, , p. 276. It became very popular in the English language after the Norman conquest of Engl ...
(then
Leader of the Opposition The Leader of the Opposition is a title traditionally held by the leader of the largest political party not in government, typical in countries utilizing the parliamentary system form of government. The leader of the opposition is typically se ...
) favoured the measures suggested by the Auld Report. These recommendations were implemented—not uncontroversially at the time—within the Criminal Justice Act 2003, and this provision came into force in April 2005. It opened certain serious crimes (including murder,
manslaughter Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th ce ...
,
kidnapping In criminal law, kidnapping is the unlawful confinement of a person against their will, often including transportation/asportation. The asportation and abduction element is typically but not necessarily conducted by means of force or fear: the p ...
,
rape Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without their consent. The act may be carried out by physical force, coercion, abuse of authority, or ...
,
armed robbery Robbery is the crime of taking or attempting to take anything of value by force, threat of force, or by use of fear. According to common law, robbery is defined as taking the property of another, with the intent to permanently deprive the perso ...
, and serious drug crimes) to a retrial, regardless of when committed, with two conditions: the retrial must be approved by the
Director of Public Prosecutions The Director of Public Prosecutions (DPP) is the office or official charged with the prosecution of criminal offences in several criminal jurisdictions around the world. The title is used mainly in jurisdictions that are or have been members o ...
, and the
Court of Appeal A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much ...
must agree to quash the original acquittal due to "new and compelling evidence". Then Director of Public Prosecutions, Ken Macdonald QC, said that he expected no more than a handful of cases to be brought in a year. Pressure by Ann Ming, the mother of 1989 murder victim Julie Hogg—whose killer, Billy Dunlop, was initially acquitted and subsequently confessed—also contributed to the demand for legal change.Murder conviction is legal first
''BBC News''. 11 September 2006
On 11 September 2006, Dunlop became the first person to be convicted of murder following a prior acquittal for the same crime, in his case his 1991 acquittal of Hogg's murder. Some years later he had confessed to the crime, and was convicted of
perjury Perjury (also known as foreswearing) is the intentional act of swearing a false oath or falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding."Perjury The act or an inst ...
, but was unable to be retried for the killing itself. The case was re-investigated in early 2005, when the new law came into effect, and his case was referred to the Court of Appeal, in November 2005, for permission for a new trial, which was granted. Dunlop pleaded guilty to murder and was sentenced to life imprisonment, with a recommendation he serve no less than 17 years. On 13 December 2010, Mark Weston became the first person to be retried and found guilty of murder by a jury (Dunlop having confessed). In 1996 Weston had been acquitted of the murder of Vikki Thompson at
Ascott-under-Wychwood Ascott-under-Wychwood is a village and civil parish in the Evenlode valley about south of Chipping Norton, Oxfordshire, England. The 2011 Census recorded the parish's population as 560. Toponym The village is one of three named after the hi ...
on 12 August 1995, but following the discovery in 2009 of compelling new evidence (Thompson's blood on Weston's boots) he was arrested and tried for a second time. He was sentenced to life imprisonment, to serve a minimum of 13 years. In December 2018, convicted paedophile Russell Bishop was also retried and found guilty by a jury for the Babes in the Wood murders of two 9-year-old girls, Nicola Fellows and Karen Hadaway, on 9 October 1986. At the original trial in 1987, a key piece of the prosecution's case rested on the recovery of a discarded blue sweatshirt. Under questioning, Bishop denied that the sweatshirt belonged to him, but his girlfriend, Jennifer Johnson, alleged the clothing was Bishop's, before she changed her story in the trial, telling the jury she had never seen the top before. Attributed to a series of blunders in the prosecution's case, Bishop was acquitted by the jury after two hours of deliberations. Three years later, Bishop was found guilty of the abduction, molestation, and attempted murder of a 7-year-old girl in February 1990. In 2014, re-examined by modern forensics, the sweatshirt contained traces of Bishop's DNA, and also had fibres on it from both of the girls' clothing. Tapings taken from Karen Hadaway's arm also yielded traces of Bishop's DNA. At the 2018 trial, a jury of seven men and five women returned a guilty verdict after two-and-a-half hours of deliberation. On 14 November 2019, Michael Weir became the first person to be twice found guilty of a murder. He was originally convicted of the murders of Leonard Harris and Rose Seferian in 1999, but the conviction was quashed in 2000 by the Court of Appeal on a technicality. In 2018, new DNA evidence had been obtained and palm prints from both murder scenes were matched to Weir. Twenty years after the original conviction, Weir was convicted of the murders for a second time.


Scotland

The double jeopardy rule no longer applies absolutely in
Scotland Scotland (, ) is a country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a border with England to the southeast and is otherwise surrounded by the Atlantic Ocean to ...
since the Double Jeopardy (Scotland) Act 2011 came into force on 28 November 2011. The Act introduced three broad exceptions to the rule: where the acquittal had been tainted by an attempt to pervert the course of justice; where the accused admitted their guilt after acquittal; and where there was new evidence.


Northern Ireland

In
Northern Ireland Northern Ireland ( ga, Tuaisceart Éireann ; sco, label=Ulster Scots dialect, Ulster-Scots, Norlin Airlann) is a part of the United Kingdom, situated in the north-east of the island of Ireland, that is #Descriptions, variously described as ...
, the Criminal Justice Act 2003, effective 18 April 2005, makes certain "qualifying offence" (including murder, rape, kidnapping, specified sexual acts with young children, specified drug offences, defined acts of terrorism, as well as in certain cases attempts or conspiracies to commit the foregoing) subject to retrial after acquittal (including acquittals obtained before passage of the Act) if there is a finding by the Court of Appeal that there is "new and compelling evidence."


United States

The ancient protection of the
Common Law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
against double jeopardy is maintained in its full rigour in the United States. The
Fifth Amendment to the United States Constitution The Fifth Amendment (Amendment V) to the United States Constitution addresses criminal procedure and other aspects of the Constitution. It was ratified, along with nine other articles, in 1791 as part of the Bill of Rights. The Fifth Amen ...
provides: Conversely, double jeopardy comes with a key exception. Under the multiple sovereignties doctrine, multiple sovereigns can indict a defendant for the same crime. The federal and state governments can have overlapping criminal laws, so a criminal offender may be convicted in individual states and federal courts for exactly the same crime or for different crimes arising out of the same facts. However, in 2016, the Supreme Court held that
Puerto Rico Puerto Rico (; abbreviated PR; tnq, Boriken, ''Borinquen''), officially the Commonwealth of Puerto Rico ( es, link=yes, Estado Libre Asociado de Puerto Rico, lit=Free Associated State of Puerto Rico), is a Caribbean island and unincorporated ...
is not a separate sovereign for purposes of the Double Jeopardy Clause. The dual sovereignty doctrine has been the subject of substantial scholarly criticism. As described by the U.S. Supreme Court in its unanimous decision concerning '' Ball v. United States'' 163 U.S. 662 (1896), one of its earliest cases dealing with double jeopardy, "the prohibition is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial." The Double Jeopardy Clause encompasses four distinct prohibitions: subsequent prosecution after acquittal, subsequent prosecution after conviction, subsequent prosecution after certain mistrials, and multiple punishment in the same indictment. Jeopardy "attaches" when the jury is impanelled, the first witness is sworn, or a plea is accepted.


Prosecution after acquittal

With two exceptions, the government is not permitted to appeal or retry the defendant once jeopardy attaches to a trial unless the case does not conclude. Conditions which constitute "conclusion" of a case include * After the entry of an acquittal, whether: ** a directed verdict before the case is submitted to the jury, ** a directed verdict after a deadlocked jury, ** an appellate reversal for sufficiency (except by direct appeal to a higher appellate court), or ** an "implied acquittal" via conviction of a lesser included offence. * re-litigating against the same defence a fact necessarily found by the jury in a prior acquittal, even if the jury
hung Hung may refer to: People * Hung (surname), various Chinese surnames * Hùng king, a king of Vietnam People with the given name Hung include: * Hung Huynh, Vietnamese-American chef, winner of the third season of the television show ''Top Chef'' ...
on other counts. In such a situation, the government is barred by collateral estoppel. In these cases, the trial is concluded and the prosecution is precluded from appealing or retrying the defendant over the offence to which they were acquitted. This principle does not prevent the government from appealing a pre-trial motion to dismiss or other non-merits dismissal, or a directed verdict after a jury conviction, nor does it prevent the trial judge from entertaining a motion for reconsideration of a directed verdict, if the jurisdiction has so provided by rule or statute. Nor does it prevent the government from retrying the defendant after an appellate reversal other than for sufficiency, including ''
habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, ...
'', or "thirteenth juror" appellate reversals notwithstanding sufficiency on the principle that jeopardy has not "terminated". The "dual sovereignty" doctrine allows a federal prosecution of an offence to proceed regardless of a previous state prosecution for that same offence and vice versa because "an act denounced as a crime by both national and state sovereignties is an offence against the peace and dignity of both and may be punished by each". The doctrine is solidly entrenched in the law, but there has been a traditional reluctance in the federal executive branch to gratuitously wield the power it grants, due to public opinion being generally hostile to such action.


Exceptions

There are two exceptions to bans on retrying defendants. If a defendant bribed a judge into acquitting him or her, the defendant was not in jeopardy and can be retried. A member of the armed forces can be retried by
court-martial A court-martial or court martial (plural ''courts-martial'' or ''courts martial'', as "martial" is a postpositive adjective) is a military court or a trial conducted in such a court. A court-martial is empowered to determine the guilt of memb ...
in a military court, even if he or she has been previously acquitted by a civilian court. An individual can be prosecuted by both the United States and an Indian tribe for the same acts that constituted crimes in both jurisdictions; it was established by the Supreme Court in ''
United States v. Lara ''United States v. Lara'', 541 U.S. 193 (2004), was a United States Supreme Court landmark case which held that both the United States and a Native American (Indian) tribe could prosecute an Indian for the same acts that constituted crimes in bo ...
'' that as the two are separate sovereigns, prosecuting a crime under both tribal and federal law does not attach double jeopardy.


Multiple punishment, including prosecution after conviction

In '' Blockburger v. United States'' (1932), the Supreme Court announced the following test: the government may separately try and punish the defendant for two crimes if each crime contains an element that the other does not. ''Blockburger'' is the default rule, unless the governing statute legislatively intends to depart; for example,
Continuing Criminal Enterprise The Continuing Criminal Enterprise Statute (commonly referred to as CCE Statute or Kingpin Statute) is a United States federal law that targets large-scale drug traffickers who are responsible for long-term and elaborate drug conspiracies. Unlike t ...
(CCE) may be punished separately from its predicates, as can conspiracy. The ''Blockburger'' test, originally developed in the multiple punishments context, is also the test for prosecution after conviction. In '' Grady v. Corbin'' (1990), the Court held that a double jeopardy violation could lie even where the ''Blockburger'' test was not satisfied, but ''Grady'' was later distinguished in '' United States v. Felix'' (1992), when the court reverted to the ''Blockburger'' test without completely dismissing the ''Grady'' interpretation. The court eventually overruled ''Grady'' in '' United States v. Dixon'' (1993).


Prosecution after mistrial

The rule for
mistrial In law, a trial is a coming together of parties to a dispute, to present information (in the form of evidence) in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court. The tribunal, ...
s depends upon who sought the mistrial. If the defendant moves for a mistrial, there is no bar to retrial, unless the prosecutor acted in "bad faith", i.e. goaded the defendant into moving for a mistrial because the government specifically wanted a mistrial. If the prosecutor moves for a mistrial, there is no bar to retrial if the trial judge finds "manifest necessity" for granting the mistrial. The same standard governs mistrials granted sua sponte. Retrials are not common, due to the legal expenses to the government. However, in the mid-1980s Georgia antique dealer
James Arthur Williams James Arthur Williams (December 11, 1930 – January 14, 1990) was an American antiques dealer and a historic preservationist based in Savannah, Georgia. He played an active role in the preservation of the Savannah Historic District for over 35 ...
was tried a record four times for the murder of Danny Hansford and (after three mistrials) was finally acquitted on the grounds of self-defence. The case is recounted in the book ''
Midnight in the Garden of Good and Evil ''Midnight in the Garden of Good and Evil'' is a non-fiction novel by John Berendt. The book, Berendt's first, was published in 1994 and follows the story of an antiques dealer on trial for the murder of a male prostitute. Subtitled ''A Savannah S ...
,'' which was adapted into a film directed by
Clint Eastwood Clinton Eastwood Jr. (born May 31, 1930) is an American actor and film director. After achieving success in the Western TV series '' Rawhide'', he rose to international fame with his role as the " Man with No Name" in Sergio Leone's "'' Do ...
(the movie combines the four trials into one).


See also

*
Sam Sheppard Samuel Holmes Sheppard, D.O. ( – ) was an American neurosurgeon. He was exonerated in 1966, having been convicted of the 1954 murder of his pregnant wife, Marilyn Reese Sheppard. The case was controversial from the beginning, with extensive ...
*
Emmett Till Emmett Louis Till (July 25, 1941August 28, 1955) was a 14-year-old African Americans, African American boy who was abducted, tortured, and Lynching in the United States, lynched in Mississippi in 1955, after being accused of offending a whi ...
* David Smith, British man acquitted of the murder of a prostitute in 1993, only to be convicted of murdering another sex worker in an "almost identical" case in 1999


Footnotes


Further reading

*


External links


Australia

; In favour of current rule prohibiting retrial after acquittal
NSW Public Defenders Office
; Opposing the rule that prohibits retrial after acquittal


DoubleJeopardyReform.Org


United Kingdom

Research and Notes produced for the UK Parliament, summarising the history of legal change, views and responses, and analyses: * *
direct download link


United States


FindLaw Annotation of the Fifth Amendment to the Constitution


(archived fro

on 2006-01-10) * Jack McCall (famous murder case involving a claim of double jeopardy)


Other countries


Law Reform Commission of Ireland Consultation Paper on Prosecution Appeals Brought on Indictment
{{DEFAULTSORT:Double Jeopardy Criminal procedure Legal defenses Legal terminology