Double jeopardy and informers

Simon McKay, of McKay Law Solicitors & Advocates of Leeds, looks at protections afforded to those tried for offences and acquitted – known as ‘double jeopardy’.

The protections afforded to those tried for offences and acquitted, known as ‘double jeopardy’, ended following the enactment of the Criminal Justice Act 2003. A number of important prosecutions have followed in its wake. In 2005, Billy Dunlop was finally jailed for the killing of Julie Hogg in 1989. Miss Hogg’s body was found stuffed behind a bath panel in her flat on Teesside. Dunlop was charged with her murder and tried twice but on each occasion the jury failed to reach a verdict and he was finally acquitted in 1991. He later admitted he was guilty but under the then 800-year-old double jeopardy law, he was not able to be tried again on the same charge.
The 2003 Act, however, made it possible to prosecute an individual already acquitted. Earlier this year, Mario Celaire was found guilty of the 2002 murder of Cassandra McDermott, a 19-year-old women who was attacked in Streatham, South London in October 2001. He was originally found not guilty of her murder in 2002 but was re-tried and pleaded guilty to manslaughter. He is due to be sentenced next week at the Old Bailey.
There have been a string of Court of Appeal decisions that have attempted to give some clarity to the provisions in the 2003 Act. These are found in sections 76 and 78. The former requires an application to have the written consent of the Director of Public Prosecutions, who must be satisfied that the requirements of section 78 are met and that a re-trial is in the public interest. In summary, the evidence justifying an application for a further trial has to be “new and compelling”.
One of the first cases to consider the ambit and effect of these terms was R v A in December 2008. The issue was the extent to which the new and compelling evidence had to relate to the allegation for which the defendant had been acquitted. A had been accused and was later acquitted of a number of sexual offences, including one count of rape. The Court of Appeal concluded that what mattered was that the new evidence should be admissible to prove that, contrary to the evidence of trial, the defendant had raped the complainant. Since his acquittal, other complainants had come forward and the victim was no longer a single complainant but one of eight whose evidence would be cross-admissible and relevant to the allegation of rape. The Court of Appeal concluded that since her allegation fell in the middle of the series of independent groups of complainants, the second trial of the complaint would take place in “a markedly different evidential context from the first”. Their Lordships went on to say that on the basis of the large amount of material they had reviewed “a conviction is highly probable and the interest of justice will best be served by ordering a re-trial”.
It was unlikely to take long before covert policing issues would impact in this area. The first decision in this connection was in May this year. In R v B (J) the defendant had been acquitted of serious offences of violence while his two co-defendants had been convicted. One of these entered into an agreement with Crown under the Serious Organised Crime and Police Act 2005, providing statements implicating B in the offences. The Crown made an application that the acquittals should be quashed and he should be re-tried. The Court of Appeal was quite satisfied that the evidence advanced was new evidence that was not available at trial and was substantial since it placed B at the scene and described his participation and the offences. However, the issue was whether the evidence was highly probative (one of the considerations under section 78 of the 2003 Act). Importantly for those handling covert human intelligence sources (CHIS) in this context, the Court of Appeal concluded that the source’s evidence, while capable of being true, fell far short of being reliable. In addition, he had a powerful self-interest in mak