Double take: evaluating double jeopardy reform.

• Author: Coffin, Kenneth G.

PROLOGUE

In February 1990, Ann Ming found her daughter Julie Hogg's body hidden behind a bath panel in her Teesside, England home. (1) She had been missing since the previous November. (2) The British government charged and indicted William Dunlop with her murder. (3) Following two mistrials in May and October 1991, the Crown Court declared Dunlop "not guilty." (4) In 1999, while incarcerated for an unrelated offense, Dunlop repeatedly admitted to having murdered Hogg. (5) He confessed to his prison nurse, wrote letters referencing his guilt to friends, and in a child custody proceeding stated, "I have admitted that I was responsible for the death of Julie Hogg. I stood trial at Newcastle Crown Court for her murder and was acquitted. I denied the offence and I accept that I lied." (6) Barred from re-indicting Dunlop for homicide by the historic common law prohibition on double jeopardy, (7) the Crown prosecution took the "unusual" step of charging him with perjury. (8) Based on the foregoing evidence, Dunlop was convicted of perjury in 2000 and sentenced to six years in prison. (9)

Prior to the passage of the Criminal Justice Act of 2003 (10) (CJA), this would have been the end of Dunlop's story. As in the United States, (11) the principle of double jeopardy previously provided "absolute" protection for Dunlop. (12) Regardless of the "truth," the state would always officially deem Dunlop "not guilty" of Julie Hogg's murder. By virtue of the CJA, however, that all changed. (13) The CJA codified a "new and compelling evidence" exception to the bar against double jeopardy in England and Wales. (14) This major inroad came into force in April 2005 with retrospective application, meaning "every living person ever acquitted of one of the twenty-nine designated serious offences will in principle become eligible for retrial and possible conviction and punishment." (15) The Crown, following the procedures proscribed by the CJA, applied to the Court of Appeal to quash Dunlop's acquittal and grant a retrial based on his repeated admissions of guilt. (16) Dunlop was a "soft target" (17) for the first application of the CJA's double jeopardy exception, and the Court of Appeal had little difficulty granting the retrial. (18) Dunlop subsequently pled guilty to murder and was given the mandatory life sentence. (19)

INTRODUCTION

Double jeopardy reform moved to the front of U.K. politics with the publishing of The Stephen Lawrence Inquiry, an investigation into the racially motivated murder of Stephen Lawrence in 1997. (20) The report noted that "[i]f ... fresh and viable evidence should emerge against any of the three suspects who were acquitted, they could not be tried again however strong the evidence might be." (21) It argued that "consideration should be given to the Court of Appeal being given power to permit prosecutions after acquittal," (22) because "in modern conditions such absolute protection may sometimes lead to injustice." (23) Pursuant to these suggestions, the House of Commons charged the Law Commission to consider changes to the rule against double jeopardy. The Commission produced a report in 2001 (24) agreeing with The Stephen Lawrence Inquiry and noting "there have in recent years been a number of well-publicised cases in which persons acquitted of serious offences are reported to have subsequently confessed their guilt." (25) Echoing The Stephen Lawrence Inquiry, the Commission concluded "that the Court of Appeal should have power to set aside an acquittal ... for murder only." (26)

In light of these reports, Parliament began work on a revision to the double jeopardy rule in 2002. The white paper trumpeting these changes notes that the goal of the reform is the "rebalancing [of] the criminal justice system in favour of the victim." (27) The government sought to "remove the double jeopardy rule for serious cases," (28) intentionally broadening the scope of the exception beyond the recommendations of the Law Commission. The paper states that the double jeopardy "safeguard to acquitted defendants ... caus[es] grave injustice to victims and the community in certain cases where compelling fresh evidence has come to light after an acquittal." (29) Arguing that "[j]ustice denied is justice derided," (30) and noting the strain that a clearly false acquittal places upon the integrity of the justice system, the U.K. Parliament swept away centuries of common law consensus and enacted the CJA.

Despite the intentionally "radical" nature of the CJA, several jurisdictions have followed the United Kingdom's lead. (31) Indeed, since 2003 New South Wales, Queensland, and South Australia have passed some variant of the "new and compelling" evidence exception to the double jeopardy rule. (32) Citing the asymmetry between defense and prosecution, these reforms seek to place the victim at the center of the criminal justice system. (33) These reforms throughout the common law world challenge the conventional wisdom that double jeopardy principles provide a bulwark against state oppression, instead portraying them as archaic protections for wrongly acquitted criminals.

Global change demands an analysis of current U.S. double jeopardy law. While the Fifth Amendment would make change difficult, mere procedural hardship serves as a poor reason to dismiss reform out of hand. Indeed, according to supporters, double jeopardy reform cures an endemic problem in the Anglo-American system of justice. Such a claim deserves a reasoned response. Dunlop's case offers a valuable chance to evaluate the growing trend towards double jeopardy reform in other common law jurisdictions. As such, this Note will critically evaluate the CJA against the backdrop of double jeopardy jurisprudence in both the United Kingdom and the United States, concluding that these reforms unjustifiably impinge on an important bulwark against the power of the state. Part I briefly traces the history of the bar against double jeopardy through the ratification of the U.S. Constitution. Part II discusses the evolution of double jeopardy jurisprudence in the United States, highlighting the policies underpinning the expansion of the doctrine. Part III describes the development of U.K. double jeopardy law prior to the passage of the CJA. Part IV discusses and refutes the three main justifications for reform. Part V lays out the case against the CJA against the backdrop of Regina v. Dunlop. (34) This Note concludes by emphasizing the liberty interests at stake in any reform of the double jeopardy doctrine and suggests that current reforms seriously and unjustifiably endanger those interests.

1. THE DOCTRINE OF DOUBLE JEOPARDY THROUGH 1789 (35)

   While the precise origins of the rule against double jeopardy remain lost to the "mists of time," (36) the prohibition has existed in some form since "Greek and Roman Times." (37)

   1. Origins of Double Jeopardy

      While the laws of the various city-states of Ancient Greece differed greatly, by 355 B.C. the Greek orator Demosthenes concluded "the laws forbid the same man to be tried twice on the same issue." (38) Similarly, since the earliest years of the Roman Republic "an acquittal by a magistrate in a criminal prosecution barred further proceedings of any kind against the accused." (39) This proscription survived the imperial period, with the Digest of Justinian stating, "[T]he governor must not allow a man to be charged with the same offenses of which he has already been acquitted." (40) As Professor David Rudstein points out, however, the Roman law against double jeopardy operated quite differently from our modern conception of the doctrine due to the proliferation of private prosecutions. (41) This more limited version of the doctrine attempted to prevent citizens from employing different statutes or legal forms to effect successive prosecutions.

      The first recorded use of the doctrine of double jeopardy in the English common law occurred in 1201. The court held a prosecution null partially on the basis of prior jeopardy, "thereby seeming to recognize [a] plea of previous acquittal." (42) Despite the early development of double jeopardy law in England, the doctrine failed to achieve consensus until well into the seventeenth century. (43) Notably, neither the Magna Carta (44) nor the English Bill of Rights of 1689, which cemented the constitutional structure of the monarchy and forms the basis for most modern English (and American) rights, mentions a bar against double jeopardy. (45)

      Nonetheless, by the seventeenth century, the pleas of autrefois acquit (prior acquittal) and autrefois convict (prior conviction) had become firmly embedded principles of the English common law. (46) Indeed, both Lord Coke (47) and Sir Mathew Hale (48) described double jeopardy in a manner recognizable to modern readers. In the eighteenth century, William Blackstone wrote, "[T]he plea of autrefois acquit ... is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life, more than once, for the same offence." (49)

      Notably, the expansion of the doctrine tracked the gradual decline of private prosecutions during the course of the seventeenth century. In the years prior to Lord Coke's famous treatise, "prosecutions by the King had begun replacing private prosecutions by appeal as the preferred method of prosecution." (50) No longer would double jeopardy merely be held up, as it was in Roman times, to prevent multiple prosecutions by a capricious victim. Rather, double jeopardy now stood as a protection against the King. As the government's prosecutorial power rapidly increased, the doctrine of double jeopardy underwent a correspondingly rapid solidification.

   2. Double Jeopardy in America Prior to the Fifth Amendment

      The prohibition against double jeopardy has been an important component of American law since colonial times. (51) In 1641, the General Court of the Massachusetts Bay Colony enacted...