Search the Issue Archive

Volume9
MonthMay
Year2008
TitleRetrying the Acquitted in England Part II: The Exception to the Rule Against Double Jeopardy for Tainted Acquittals
Author(s)David S. Rudstein
First Page217
AbstractParliament enacted a statute in 1996 intended to limit the double jeopardy bar in some situations in which the defendant obtained an acquittal through improper means, thereby permitting the government to retry the person for the same offense of which he previously was tried and acquitted. The statute, part of the Criminal Procedure and Investigations Act 1996, allows a retrial when an individual's acquittal was tainted, which, under the statute, means an acquittal resulting from interference with, or intimidation of, a juror, witness, or potential witness. In allowing a retrial in such circumstances, the statute creates an exception to the traditional English rule against double jeopardy. The plea of autrefois acquit, a former acquittal, provides that once an individual is found not guilty of an offense he cannot be tried again for the same offense. This Article analyzes this statute in light of the policies underlying the protection against double jeopardy in an effort to determine whether Parliament acted wisely when it created this tainted acquittal exception to the rule against double jeopardy. The issue is both timely and important due to the ongoing movement in other common law jurisdictions, namely Australia, New Zealand, and Jamaica, to create a similar exception to the traditional double jeopardy principle. Indeed, in October 2006, the legislature of New South Wales, Australia, enacted a statute creating an exception to the rule against double jeopardy in instances where an acquittal for a very serious offence was tainted.