The right not to be tried or punished more than once for an offence is commonly known as the rule against double jeopardy. It is a fundamental principle of the common law and underpins criminal justice administration. It is recognised internationally in Article 14 of the International Covenant on Civil and Political Rights (ICCPR) and Article 4(1) of Protocol 7 of the European Convention on Human Rights (ECHR) which incorporates double jeopardy provisions. In Green v United States Justice Black of the US Supreme Court explained:
- The State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
The right against double jeopardy is a series of interrelated principles including:
- the protection from multiple prosecutions by the state about the same issue, which operates as a check on the abuse of state power;
- the need for finality in proceedings;
- the sanctity of a jury verdict;
- the prevention of wrongful conviction; and
- the need to encourage efficient investigations.
In Victoria, the right not to be tried or punished more than once for an offence is recognised in section 26 of the Charter of Human Rights and Responsibilities. Liberty recognises that there are legitimate purposes in very limited circumstances where overall fairness and justice dictate that a case may be revisited. These exceptions, as they appear in international instruments include:
- reopening of a case where there is fresh evidence of guilt; or
- where there is a serious flaw in the proceedings, as when an acquittal has been procured by fraud.
In New South Wales and Queensland, high profile criminal cases have led to legislative reform to allow limited exceptions. For example, the Criminal Code (Double Jeopardy) Amendment Act (Qld) 2007 allows for retrial for murder if there is fresh evidence of guilt and retrial of an acquitted person of a very serious offence if the acquittal was tainted. Western Australia and Tasmania already allow for retrial following acquittal. Liberty believes that the rule against double jeopardy ensures both procedural rights for the accused and procedural rights that protect the integrity of judicial outcomes. It is contrary to the interests of justice to allow a person to be retried for the same offence indefinitely. Such a system would compromise public confidence in the criminal justice system and is particularly vulnerable to political interference.
Retrospective criminal laws
Protection against retrospective criminal offences means ‘No law, made after a fact done can make it a crime … for before the law there is no transgression of the law’. That is, a person should only be charged with a law that stood at the time of the alleged criminal conduct and not one that was made after the time of the alleged conduct. Protection against prosecution for retrospective criminal offences is a human right and is recognised by:
- Article 11 of the United Nations Universal Declaration of Human Rights (UDHR)
- Article 15 of the International Covenant on Civil and Political Rights (ICCPR)
- Article 99 of the Third Geneva Convention
Nationally, it is recognised in Division 268 of the Australian Criminal Code which essentially incorporates the international treaty provisions. In Victoria, it is recognised in section 27 of the Charter of Human Rights and Responsibilities. A retrospective criminal law is unjust because it does not allow a person to know what conduct or behaviour will or will not attract criminal charges being laid or be punished. It also permits selective punishment by those in power for improper ulterior motives, and is therefore contrary to the rule of law. Liberty believes that Australia has a duty to adhere to and protect international law which clearly prohibits retrospective laws.