The double jeopardy rule – its origin and rationale

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CHAPTER THREE SUCCESSIVE PROSECUTIONS FOR « THE IDENTICAL OFFENCE » – A COMPARATIVE ANALYSIS OF THE « ATTACHMENT OF JEOPARDY » ISSUE

INTRODUCTION

Any double jeopardy claim necessarily involves the question of whether criminal proceedings against an accused have reached a stage that it can be said that a person has been put in jeopardy or in peril of a conviction of the offence(s) allegedly committed. In the American federal legal system, this stage in a criminal proceeding is referred to as the « attachment » of jeopardy. In the legal systems considered on a comparative basis in this chapter, it is generally recognised that a person is put in jeopardy (or in peril) of a conviction at the commencement of the main proceedings, in other words, at the commencement of the criminal trial. It is argued, for instance, that it is at this stage that « the defendant’sinterest [in finality] reaches its highest plateau, because the opportunity for prosecutorial overreaching thereafter increases substantially, and . . . stress and possible harassment of the defendant from then on is sustained ». 1 Courts have accordingly held that in a jury trial, jeopardy attaches at a stage when the jury is sworn and in a non-jury trial, at the stage when the accused pleads to the charge, or when the first witness begins to give evidence.
See the decision of the Supreme Court of the United States in Crist v Bretz 437 US 28, 38 ( 1978) discussed in detail infra, text at note 154.
From the position sketched above, it may be assumed that any termination of proceedings at a stage after the jury has been sworn,* or (in a non-jury trial) after the accused has pleaded or the first witness has begun to give evidence, bars a second prosecution for the same offence. However, this is not always the case. In general, it may be said that in the absence of bad faith on the part of the prosecution or collusion, courts in the legal systems under consideration require nothing less than a termination of proceedings based on a finding as a matter of fact that a person charged is guilty or innocent before they prohibit a second prosecution for the same offence on double jeopardy grounds.
There are, of course, exceptions to this approach. In some jurisdictions (for example South Africa, America and India), courts have ruled that a withdrawal of a case by the prosecution at a stage after jeopardy has attached, amounts to an acquittal which bars a second prosecution. However, where a discharge of the accused occurred on the basis of a so-called « technical » ground, courts have been less willing to abandon the requirement that the termination should be based on the factual merits of the case. The courts have justified this approach by arguing that an accused who has been discharged on a technical ground or defect in the proceedings, has never been in jeopardy of a conviction. 2
However, the traditional understanding of a trial « upon the merits » (an adjudication of the factual guilt or innocence of the accused), has been subjected to scrutiny in Canadian constitutional jurisprudence. The Supreme Court of Canada has rejected the notion that only a 2 As pointed out in the historical overview, this rationale was first advanced in the fifteenth century, in Vaux’s case. See chapter two supra under 2.3.1, text at note 65 for a discussion of this case. finding as a matter of fact that the accused is either guilty or innocent of the offence charged, bars a second trial. 3 Instead, it has suggested that a second trial ought to be prohibited if jeopardy had attached in the temporal sense of the word (in other words if the trial had commenced), and if the court had the necessary jurisdiction to acquit or convict. This approach resulted in a rejection of the traditional theory advanced in the Engffsh case of Drury, 4 namely that a discharge on a defective indictment cannot operate as an acquittal, which brings into effect protection against double jeopardy, even if the indictment could have been amended by the court at the first trial. Nevertheless, these and other developments in this particular field of double jeopardy jurisprudence are discussed and considered on a comparative basis in the paragraphs that follow.

ENGLISH LAW

General
During the twentienth century, English courts have not extended the traditional ambit of the pleas of autrefois acquit and autrefois convict. In general, the requirements for successful reliance on the pleas that prevailed during the nineteenth century, still apply today. 5 These requirements are that there should be an adjudication on the guilt or innocence of the accused) for the same offence on a valid indictment by a court of competent jurisdiction.
However, this does not mean that no developments occurred during contemporary times in this particular field of law. In the 1960’s,the House of Lords suggested in the case of Conelly v Director of Public Prosecutions, 6 that double jeopardy protection is afforded not only by the pleas in bar, but also by the judicial discretion to stay proceedings as an abuse of process. 7 The existence of inherent powers vested in a court of law to stay proceedings in cases where the pleas cannot be relied on but the second prosecution (in the court’sview) amounts to oppressive or improper conduct on the part of the prosecutor, was confirmed by the House of Lords in 1977 in the case of Director of Public Prosecutions v Humphrys. 8 In that case, Lord Salmon explained the scope of the « abuse of process discretion » in the following terms9
A judge has not and should not appear to have any responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has  the power to intervene. Fortunately, such prosecutions are hardly ever brought but the power of the court to prevent them is, in my view, of great constitutional importance and should be jealously preserved. For a man to be harassed and put to the expense of perhaps a long trial and then given an absolute discharge is hardly from any point of view an effective substitute for the exercise by the court of the power to which I have referred.
Since the decision in Humphrys, English courts have stayed proceedings on double jeopardy grounds in a number of cases where the pleas of autrefois could not be relied on by the accused. Most of these cases dealt with a subsequent prosecution for a different offence, albeit on the same facts as previously adjudicated on. 10 In the field of attachment of jeopardy (addressed in this chapter), the discretion to stay proceedings has been exercised in favour of the accused in only one particular instance: a second preliminary hearing was found to be vexatious after a court of law had (in a previous preliminary hearing for the same offences) considered the merits and found that there was no case to answer. 11
As indicated by the dicta of Lord Salmon cited above, 12 the discretion to stay proceedings is exercised on a case to case basis, depending on whether the particular facts of each case reveal an abuse of process. Recognition of such discretionary powers to stay proceedings has opened the door for constant re-evaluation of traditional premises in this particular field of law. Therefore, the possibility is not excluded that new principles may develop in the course of time which may be reconciled with contemporary practices 10See chapter four infra under  of criminal procedure.

The attachment of jeopardy

The principle advanced in the case law is that a person is « twice vexed » if he was in peril (or in jeopardy) of a valid conviction for the same offence at the first trial. 13 A person is put in peril of a conviction in a trial on indictment as soon as the jury is sworn, and, in a trial in a magistrate’scourt, as soon as he has pleaded to a charge. 14 However, this does not mean that all types of discontinuances of proceedings at a stage after jeopardy has attached, operate as a bar to a second prosecution for the same offence. The basic approach followed by the courts is that for double jeopardy principles to apply, there needs to be a discontinuance of proceedings based on a finding as a matter of fact that the accused is either guilty or innocent of the crime(s) charged. This becomes particularly apparent from the courts’unwillingness to depart from the ancient rule that a discharge of a jury from giving a verdict at a stage after jeopardy has attached amounts to a mere temporary discontinuance of proceedings, despite the possibilities for abuse of the rule. 15
Friedland (23) criticises the fact that the discretion of the trial judge to discharge the jury is not reviewable by a higher court. He points out the following possibilities for abuse of the rule. The trial judge discharging the jury when the prosecutor has not made out a case; a discharge during the jury’sdeliberation when it is felt than an acquittal will be forthcoming, or a discharge caused by the deliberate introduction of inadmissible prejudicial evidence by a desperate prosecutor. convict can only be sustained by evidence that the offence for which the accused is charged has already been the subject of complete adjudication against him; in other words, a decision establishing his guilt (whether it is a decision of the court or the jury or the entry of his own plea), and the final disposal of the case by passing sentence, or the making of some other order, for example, an absolute discharge. 16
Other principles which emerge from a study of the case law are the following. In Regina v _Dorki’!Jl Justic..,es, 17 the House of Lords laid down the principle that an accused is not, in the context of autrefois, in jeopardy merely because he is standing trial on a particular charge and, in a popular sense, in peril of a conviction. Jeopardy arises only after a lawful acquittal or conviction. 18 Therefore, when a magistrate dismisses a case in circumstances where the process resulting in the adjudication was invalid (for example, where he failed to discharge his duty to listen to prosecution evidence), the decision is treated as a nullity. This means that the acquittal may be taken on review, and, on being quashed by a superior court, the prosecution may institute new proceedings against the accused for the same offence. An acquittal treated as a nullity is also referred to in the case law as an adjudication by a court acting « without jurisdiction » .19 The phrase « without jurisdiction » is used in this context in the sense that when a court disregards a rule of criminal procedure in the process of adjudication, the decision which results from that invalid process of adjudication is one which the court has no jurisdiction to make. 20

CHAPTER ONE: INTRODUCTION
1. 1 The double jeopardy rule – its origin and rationale
1. 2 Field and general scheme of study
PART TWO THE PROHIBITION AGAINST DOUBLE JEOPARDY AND SUCCESSIVE
PROSECUTIONS
CHAPTER TWO: HISTORICAL OVERVIEW
2.1 Roman law 10
2.2 Roman-Dutch law
2.3 English law
CHAPTER THREE: SUCCESSIVE PROSECUTIONS FOR « THE IDENTICAL OFFENCE »: A COMPARATIVE ANALYSIS OF THE « ATTACHMENT OF JEOPARDY » ISSUE
3. 1 Introduction
3.2 English law
3.3 General
3.4 Indian law
3.5 The law of the United States of America
3.6 South African law
CHAPTER FOUR: SUCCESSIVE PROSECUTIONS FOR OFFENCES ARISING FROM THE SAME FACTS: A COMPARATIVE ANALYSIS OF THE DEFINITIONAL ISSUE OF « SAME OFFENCE »
4.1 Introduction
4.2 English law
4.3 Canadian law
4.4 Indian law
4.5 The law of the United States of America
4.6 South African law
PART THREE THE PROHIBITION AGAINST DOUBLE JEOPARDY AND THE PROSECUTION APPEAL
CHAPTER FIVE: HISTORICAL OVERVIEW
5.1 Roman law 315
5.2 Roman-Dutch law
5.3 English law
CHAPTER SIX: THE PROSECUTION APPEAL: AN ANALYSIS OF CURRENT LAW 328
6. 1 Introduction
6.2 English law
6.3 Canadian law
6.4 Indian law
6.5 The law of the United States of America
6.6 South African law
PART FOUR REPROSECUTION FOLLOWING AN APPEAL BY THE ACCUSED AND RELATED ISSUES
CHAPTER SEVEN: HISTORICAL OVERVIEW
7.1 Roman law
7.2 Roman-Dutch law
7 .3 English law
CHAPTER EIGHT: NEW TRIALS – A COMPARATIVE ANALYSIS OF CURRENT LAW
8.1 Introduction
8.2 English law
8.3 Canadian law
8.4 Indian law
8.5 The law of United States of America
8.6 South African law
PART FIVE A CONSIDERATION OF DOUBLE JEOPARDY PRINCIPLES IN A CONTINENTAL SYSTEM OF CRIMINAL PROCEDURE
CHAPTER NINE: GERMAN LAW
9.1 General introduction
9.2 Distinctive features of the German law of criminal procedure
9.3 The attachment of jeopardy
9.4 The definitional issue of dieselbe Tat (the « same offence »)
9.5 Prohibition on imposition of a more severe sentence on appeal and retrial ( Verbot der reformatio in peius)
9. 6 Re-opening to disadvantage of finally acquitted accused
9. 7 Summary
PART SIX CONCLUSIONS PROPOSED INTERPRETATION OF THE CONSTITUTIONAL GUARANTEE AGAINST DOUBLE JEOPARDY
10.2 Background to adoption of the Constitution -the role of the interim Constitution
10.3 Interpretation of the Bill of Rights
10.4 Structure of interpretation: a two-stage analysis
10.5 Criteria for limitation of rights
10.6 Interpretation and limitation in actual cases
10. 7 Proposed interpretation of the double
CITATION
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