Real Crime Stories/Paranormal Hauntings/Conspiracy Theories Book II

Double Jeopardy (Part I)

Double jeopardy, non bis in idem or ne bis in idem is a procedural defense that prevents an accused person from being tried again on the same (or similar) charges following a valid acquittal or conviction.

If this issue is raised, evidence will be placed before the court, which will normally rule as a preliminary matter whether the plea is substantiated; if it is, the projected trial will be prevented from proceeding. In some countries certain exemptions are permitted, such as in the United Kingdom, where in Scotland a new trial can be initiated if, for example, the acquitted has made a credible admission of guilt, and in England and Wales, where serious offenses may be re-tried following an acquittal if new and compelling evidence is found and for the trial to be in the public's interest. In some countries, including Canada, Mexico and the United States, the guarantee against being "twice put in jeopardy" is a constitutional right. In other countries, the protection is afforded by statute.

In common law countries, a defendant may enter a peremptory plea of autrefois acquit (formerly acquitted) or autrefois convict (formerly convicted), with the same effect.

The doctrine appears to have originated in Roman law, in the principle non bis in idem ("an issue once decided must not be raised again").

International Covenant on Civil and Political Rights

The 72 signatories and 166 parties to the International Covenant on Civil and Political Rights recognize, under Article 14 (7): "No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country."

European Convention on Human Rights

All members of the Council of Europe (which includes nearly all European countries and every member of the European Union) have adopted the European Convention on Human Rights. The optional Protocol No. 7 to the Convention, Article 4, protects against double jeopardy: "No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offense for which he or she has already been finally acquitted or convicted in accordance with the law and penal procedure of that State."

This optional protocol has been ratified by all EU states except three: Germany, the United Kingdom, and the Netherlands. In those member states, national rules governing double jeopardy may or may not comply with the provision cited above.

Member states may, however, implement legislation which allows reopening of a case in the event that new evidence is found or if there was a fundamental defect in the previous proceedings:

The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

In many European countries, the prosecution may appeal an acquittal to a higher court. This is not regarded as double jeopardy, but as a continuation of the same case. The European Convention on Human Rights permits this by using the phrase "finally acquitted or convicted" as the trigger for prohibiting subsequent prosecution.

By country

Australia

In contrast to other common law nations, Australian double jeopardy law has been held to further prevent the prosecution for perjury following a previous acquittal where a finding of perjury would controvert the acquittal. This was confirmed in the case of R v Carroll, where the police found new evidence convincingly disproving Carroll's sworn alibi two decades after he had been acquitted of murder charges in the death of Ipswich child Deidre Kennedy, and successfully prosecuted him for perjury. Public outcry following the overturn of his conviction (for perjury) by the High Court has led to widespread calls for reform of the law along the lines of the England and Wales legislation.