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Volume8
MonthMay
Year2007
TitleRetrying the Acquitted in England, Part I: The Exception to the Rule Against Double Jeopardy for New and Compelling Evidence
Author(s)David S. Rudstein
First Page387
AbstractMore than 240 years ago, Sir William Blackstone, perhaps the most important commentator on the English common law, wrote that when a man is once fairly found not guilty upon any indictment, or other prosecution, before any court having competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime. This plea of autrefois acquit (a former acquittal), Blackstone explained, is based upon the principle that no man is to be brought into jeopardy of his life, more than once for the same offence, which he called a universal maxim of the common law of England. Yet, notwithstanding this long-established principle barring double jeopardy, on September 11, 2006, William Billy Dunlop was convicted of the murder of Julie Hogg, a crime for which he had been acquitted nearly fifteen years earlier. Retrial of Dunlop was permissible under an exception to the rule against double jeopardy created by Parliament in a statute enacted in 2003. That statute, the Criminal Justice Act 2003, allows an acquitted person's protection against double jeopardy to be withdrawn for certain serious offenses when there is new and compelling evidence against [him] and permits the government to retry the individual despite his previous trial and acquittal for the same offense. In doing so, the statute creates a revolutionary new power in the Court of Appeal and extinguishes the centuries old common-law rule against double jeopardy, hereby rescinding [p]erhaps the most fundamental rule in the history of double jeopardy jurisprudence. In this article, I will discuss the wisdom of the statute in light of the policies underlying the protection against double jeopardy. The issue is an important one because there is movement in some other common law jurisdictions to follow the lead of England and create a similar exception to traditional double jeopardy principles.