Evaluating the common law principle against retrials

The common law principle against retrials, generally referred to as “the rule against double jeopardy,” proscribes retrials for the same criminal offence following a trial on the merits by a court of competent criminal jurisdiction concluding with an acquittal or conviction.2 This principle of the common law has recently been reformed in the United Kingdom,3 and New South Wales,4 and similar reforms have been proposed in a number of common law 1. The People v O’ Shea [1982] IR 384 (SC), at 432 per Henchy J. 2. Double jeopardy is more aptly described as a principle or maxim of the common law (as opposed to a rule of law per se) thus incorporating a multitude of substantive and procedural rules pertaining to the investigation, indictment and trial of criminal offences; see M S Kirk, “‘Jeopardy’ During the Period of the Year Books” (1934) 82 University of Pennsylvania Law Review 602, at 604. 3. Criminal Justice Act 2003, Part 10 (UK). The provisions of the 2003 Act pertaining to the reform of double jeopardy are applicable in England and Wales, and Northern Ireland. 4. On 17 October 2006, the Parliament of New South Wales passed the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 No 69. This legislation provides for an exception to the common law principle against double jeopardy in circumstances where fresh and compelling evidence of the accused’s guilt is subsequently discovered, and also in the case of a “tainted” acquittal. jurisdictions, namely Ireland,5 Australia6 and New Zealand.7 If these proposed reforms are implemented in Ireland, provision would be made for an exception to the principle against double jeopardy where fresh and compelling evidence of the accused’s guilt is discovered following an acquittal.8 This article presents an evaluation of the policy considerations for the retention of the common law principle against double jeopardy as a complete bar against retrials, and alternatively whether the principle should be reformed