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 provisions in respect of retrials apply 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.
The 2010 Act allows the Director of Public Prosecutions a right of appeal “with prejudice” against the decision by the Court of Criminal 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 Criminal 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 Supreme Court.
The DPP may submit 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 Criminal Appeal acts with reference to the above criteria. The court is to have regard 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.
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 petition for a pardon to the Minister for Justice. There are 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.
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.
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