Retrials and Miscarriages

Double Jeopardy

The rule against double jeopardy is the ancient common law rule that a person may not be punished, tried twice for the same offence.  The Criminal Procedure Act 2010 changed the principle against double jeopardy in relation to some kinds of cases, in exceptional circumstances.

The provision in respect of retrials applies only to a limited category of very serious offences.  They include murder, manslaughter, treason, rape, genocide, torture, more serious sexual offences, trafficking offences, offences against the state, serious drug offences, firearm offences, explosive offences, serious property damages, robbery, burglary.  Accomplices and those who attempt to engage in a conspiracy to commit the above are also potentially subject to retrial.

It allows for a person acquitted of an offence to be retried, where new and compelling evidence had emerged or the acquittal was tainted to corruption, intimidation of witnesses or jurors or perjury.  New and compelling evidence is evidence that could not with the exercise of due diligence have been adduced during the original proceedings.  It must be reliable, substantial and implicate the person with a high degree of probability in the commission of the relevant offence.

Application for Retrial

The DPP may an application to the Court of  Appeal for a retrial. The accused is given notice of the application for a retrial order. The Court of  Appeal may allow a retrial where the acquittal has been tainted or there is new and compelling evidence.

The decision may be tainted, where it is probable that the commission of an offence against the administration of justice affected the proceedings and it is in the public interest to do so.  Offences in relation to corruption and perversion of justice include acts of corruption acts, attempts to pervert the course of justice, perjury or conspiracy to do the same.

The Court of Appeal acts with reference to the above criteria.  The court is to have regard as to whether the retrial could be conducted fairly, the amount of time that has passed, the interest of the victim and other relevant matters.

Orders may be made to safeguard the fairness of the retrial.  It may exclude the public or part of the public or persons other than bona fide representatives of the press.  It may prohibit the publication or broadcast of evidence relating to the trial.  It may protect the identity of persons who are connected with the retrial.

The 2010 Act allows the Director of Public Prosecutions a right of appeal “with prejudice” against the decision by the Court of Appeal not to order a retrial following quashing conviction.  With prejudice refers to the fact that that the appeal may result in an acquittal or the decision of the Court of Appeal not to order a retrial being overturned and a retrial being ordered.  This is in addition to the present above without prejudice appeal to the Court of Appeal.

Miscarriage of Justice

There is a procedure by which a person who alleges a miscarriage of justice may appeal to the Court of Appeal.  Formerly, once a person was convicted and the normal appeal period had expired or if the conviction was upheld on appeal, the decision was absolutely final.

The only recourse was non-judicial by way of a petition for a pardon to the Minister for Justice.  There are now provisions for a petition to Minister for Justice for a pardon and for compensation if a miscarriage of justice has occurred.

Newly-discovered facts must show that there is a miscarriage of justice in relation to the conviction, or that the sentence imposed is excessive.  There must be new facts and newly discovered facts.

These facts may be facts known to the convicted person at the time of the trial or appeal, where there is a reasonable explanation for the failure to adduce them as evidence.  A newly discovered fact is a fact after the conviction or appeal has been determined or a fact of significance that was not appreciated at the former time.

A retrial may be ordered if the court is satisfied there has been a miscarriage of justice or excessive sentence.  The person may be tried again for the same offence.

The newly discovered facts must render the conviction, unsafe or unsatisfactory.  The mere existence of new facts would not necessarily raise a doubt about the safety of the conviction. They must tend to show that there has been a miscarriage of justice.

They must be such as would have enabled the defence to raise a reasonable doubt in the minds of a jury.  It cannot be remote, hypothetical, trivial or fanciful. An application may be disposed of summarily where there are no substantial grounds, or it does not disclose a prima facie case that there has been a miscarriage of justice.

Compelling

“compelling evidence”, in relation to a person, means evidence which—

• is reliable,
• is of significant probative value, and

is such that, when taken together with—

• all the other evidence adduced in the proceedings concerned, and
• to the extent that such evidence has not been adduced, the relevant evidence proposed to be adduced in the proceedings,

a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned

Appeals by DPP No Retrial

Where a person’s conviction of an offence on indictment is quashed on appeal by the Court of Appeal and the Court makes no order for the re-trial of the person in respect of the offence, the Director, if he or she is the prosecuting authority in the trial, or the Attorney General, as may be appropriate, may, appeal the decision of the Court of Appeal not to order a re-trial of the offence concerned on a question of law to the Supreme Court under Article 34.5.3° of the Constitution.

An appeal shall lie only where

• a ruling was made by a court during the course of a trial, uring the course of a preliminary trial hearing  which was not appealed  or  during the hearing of an appeal which erroneously excluded compelling evidence, or,
•  a direction was given by a court during the course of a trial  directing the jury in the trial to find the person not guilty where the direction was wrong in law, and  the evidence adduced in the proceedings was evidence upon which a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned.

Appeal Procedure

An appeal  shall be made on notice to the person who is the subject of the appeal within 28 days or such longer period not exceeding 56 days as may, on application to it in that behalf, the appeal court determines, from the day on which the person was acquitted or the conviction was quashed, as the case may be.

Where a person fails to appear before he Supreme Court or the Court of Appeal, as the case may be, in respect of the appeal, the Court, if it is satisfied that it is, in all the circumstances, in the interests of justice to do so, may proceed to hear and determine the appeal in the absence of the person concerned.

For the purposes of considering such an appeal referred the Supreme Court or the Court of Appeal, as the case may be, shall hear argument—

• by, or by counsel on behalf of, the Director, or as the case may be, the Attorney General,
• by the person who is the subject of the appeal or by counsel on his or her behalf, and
• if counsel are assigned , by such counsel.

On hearing an appeal  the Court of Appeal or Supreme Court may—

• quash the acquittal  and order the person to be re-tried for the offence concerned if it is satisfied that the requirements of  as the case may be, are met, and  that, having regard to the matters referred to  it is, in all the circumstances, in the interests of justice to do so, or
•  if it is not so satisfied, affirm the acquittal.

Criteria

In determining whether to make an order , the Court of Appeal or the Supreme Court, as the case may be, shall have regard to—

• whether or not it is likely that any re-trial could be conducted fairly,
• the amount of time that has passed since the act or omission that gave rise to the indictment,
• the interest of any victim of the offence concerned, and
• any other matter which it considers relevant to the appeal.

The Court of Appeal or the Supreme Court, as the case may be, may make an order for a re-trial subject to such conditions and directions as it considers necessary or expedient (including conditions and directions in relation to the staying of the re-trial) to ensure the fairness of the re-trial.

Petition to Minister

If a person has been convicted of an offence (even after appeal), alleges that newly discovered facts or new facts show a miscarriage of justice, he may petition the Minister for Justice for a pardon.  The Minister for Justice is to make enquiries and may consider that the matter should be dealt with by application to the court.

The Minister may determine that no miscarriage of justice has occurred and that no further investigation should be made and shall so inform the petitioner.  He may recommend that a pardon be given by the President. He may in other cases, recommend that a committee be appointed to enquire into the case.  The Minister may determine that the matter should be dealt with by court application and he / the Department shall not investigate the matter further.

The Committee of Enquiry is technically a Tribunal of Inquiry.  It may consist of one person or more.  It shall consist of a judge, a former judge, a practising barrister or solicitor of at least 10 years standing.

Where a person has been acquitted on retrial and the court certifies that the newly discovered fact showed there has been a miscarriage of justice or he has been pardoned on a petition pursuant to the above procedure, where newly discovered facts show a miscarriage of justice, the Minister shall pay compensation to the person or his personal representative.  The amount is to be determined by the Minister for Justice.  There is a right of appeal to the High Court from the level of compensation.

Newly discovered facts are broadly as set out above. The application is treated for practical purposes, as an appeal against conviction.