13 Sep U.K. Convicts Murderer After Dumping “Double Jeopardy” Rule
Here’s a cautionary tale for all you constitutional comparativists out there. Yesterday the United Kingdom convicted its first individual after the reform of its “double jeopardy” rule, which prohibits individuals from being tried twice for the same crime (thanks to my current colleague Professor Paul Marcus of William & Mary Law for the heads up).
The same double jeopardy rule is enshrined in U.S. constitutional law so it is fascinating to Americans to watch the U.K. unceremoniously dump this 800-year-old principle of criminal protection. Even more amazingly, the reform of the Double Jeopardy rule allowed the U.K. government to charge individuals retroactively. Hence, yesterday’s conviction was based on a jailhouse confession by an individual who had believed he was protected by the double jeopardy rule and the U.K. Home Secretary has at least 35 other cases in their sights. Another reminder of how the U.S. Constitution’s Bill of Rights can sometimes be very out of step with the rest of the world, but that’s not necessarily a bad thing.
In case anyone is interested here’s the BBC News story on the case Julian references. Importantly the rule is lifted only where “new and compelling” evidence emerges. In addition a new prosecution requires consent from the Court of Appeals, which considers whether in fact such new and compelling evidence has come to light. So I don’t think it’s a general or broad ranging “unceremonious[] dump[ing]” of the rule that Julian suggests.
In addition a challenge to the law may ensue relying, particularly, on Article 14 ICCPR and Article 50 of the EU Charter of Fundamental Rights. The former would certainly be given heavy weighting in UK domestic courts, although the later may have to wait to receive a decent airing in the Court of First Instance or ECJ. I think however the test of CJA 2003 (the act that, inter alia, lifts the rule in this limited manner) has not yet come.
Finally, just a pernickity note, the Act only applies to England and Wales – Scots and Northern Irish law remains unchanged – thus is not strictly speaking a provision that allows UK-wide prosecutions contrary to the double jeopardy rule.
At least when it comes to double jeopardy, the US Bill of Rights is not out of step with the rest of the world. Many, many countries all over the world have such a rule, which is usually called by the Latin ne bis in idem. The difference from the ‘rest of the world’ and the US is that the ne bis in idem principle relates only to a final verdict, which means that the prosecution can appeal an acquittal in the trial court, but when the final appeal is exhausted, that’s it, barring very exceptional circumstances, e.g. bribery of a judge. I don’t think there is anything inherently superior with the US variant of the rule – it is just adapted to an extremely adverserial system. As to my knowledge, Canada and most other common law jurisdictions also recognize ne bis in idem only in respect of final judgments. Human right treaties do the same, as in Article 14(7) of the ICCPR and in Article 4 of Protocol 7 to the ECHR. The UK case does seem to go against even this more limited conception, but we’ll see how the UK appellate courts deal with it. Unfortunately, I don’t… Read more »
Unfortunately I must fundamentally disagree with the opinion in this post. Not everything that is old is necessarily good. That something is 800-years old does not mean that it should be kept if it is wrong and most of all unjust. Criminal justice here means that if someone has committed a crime he should be punished. Or is it just that we should let him go unpunished only because there was no evidence against him but now there is COMPELLING evidence against him? And very importantly would the victims feel that this is justice? (Because of the peculiarities of criminal justice systems in common law countries, I have got the experience that people often forget about victims) Obviously, that is not saying that ne bis in idem is not a very important principle. Indeed, if not unconditional, it is a fundamental principle of criminal law protecting persons. In summary then, this new conditional principle strikes the proper balance between the competing interests. Although I do not know all the details of the English legislation it seems to me perfectly compatible with the ECHR. Article 4(2) of protocol 7 says that “The provisions of the preceding paragraph [ne bis in idem… Read more »
Besides, I forgot to mention, it seems to me that the law is also in conformity with article 14(7) ICCPR see the General Comment 14, para. 19 of the HRC.
Sorry, General Commnent 13
“Not everything that is old is necessarily good . . . Criminal justice here means that if someone has committed a crime he should be punished.”
That statement reminded me of the old P.C.I.J. case in 1935 of the Danzig Legislative Decrees. Defending the new law, which effectively eliminated the principle of legality, the Agent for the Free City of Danzig declared to the Court that “according to the new conception of penal law, real justice will take the place of formal justice and . . . henceforth the rule will be Nullen crimen sine poena instead of Nullen crimen sine lege.” And we all saw where that kind of thinking can lead.
Certainly we Americans should be grateful and protective of our “peculiar”, “old”, and “extremely adversarial” system of Constitutional guarantees. And I’m sure Professor Ku will be quick to defend those Bill of Rights guarantees including searches with warrants, due process, knowing the nature and cause of the accusation against you, open confrontation of witnesses, and a prohibition of cruel and unusual punishment when it means more than scoring a few rhetorical points against the Europeans.
(You forgot habeas corpus)