Retrials of Persons Acquitted of Indictable Offences in England and Australia: Exceptions to the Rule Against Double Jeopardy
(2014) 38 Criminal Law Journal 159-184
26 Pages Posted: 28 Jun 2015
Date Written: 2014
The rule against double jeopardy comprises a core rule of criminal procedure, and was significantly expanded in the mid-20th century. However, by the beginning of the 21st century legislatures in many common law jurisdictions had enacted reforms that significantly limit the operation of the rule. In England and several States in Australia, the reforms have restricted the scope of the plea of autrefois acquit and the exercise of the courts abuse of process power by creating exceptions to the rule against double jeopardy. The reforms have also invested prosecutors with a right to appeal certain acquittals. There are two grounds on which the prosecution can apply to have a person’s acquittal quashed and a new trial ordered: where the acquittal was “tainted”, and here “fresh and compelling evidence” exists. The accused may also be charged with an “administration of justice offence” arising from the original trial. Courts must also consider the interests of justice and whether the accused could obtain a fair trial; no such principles guide courts when considering whether to order a retrial following a successful prosecution appeal. This articles analyses the applications made to have an acquittal quashed and a new trial ordered in both England and Australia, as well as prosecution appeals against acquittal under the new legislation. The analysis suggests that a key task for the future will be to determine how considerations of finality, fairness and freedom from oppressive re-litigation – key principles underlying the rule against double jeopardy – should inform such decision-making.
Keywords: Double jeopardy, prosecution appeal against acquittal, autrefois acquit
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