The
practical effect of the common law principle against double jeopardy is the
proscription against retrials for the same criminal offence following an
acquittal or conviction. Pleading double
jeopardy is not to be equated with a defence to a criminal charge, the former
operating to prevent the second prosecution from proceeding ab initio, the latter being a mitigating
factor against the accused’s criminal liability which the trial court may take
into consideration when imposing sentence. The constituent rules of double
jeopardy jurisprudence are not easily applied in practice and therefore
necessitate a more detailed examination. To determine in any particular case
whether the pleas in bar, autrefois acquit (former acquittal) or autrefois
convict (former conviction) against a second trial for the same criminal
offence are available to the accused, it is generally accepted that there are
three essential criteria to be satisfied:
* the
accused had formerly been in jeopardy (or peril) of a lawful conviction before
a court of competent criminal jurisdiction;
* the
former criminal trial must have concluded with a final determination of the
facts at issue, i.e. that there has been a final verdict, either of acquittal
or conviction, following a trial on the merits;
* the
criminal offence for which the accused has been charged on the second occasion
is the same or substantially the same offence as that for which he had formerly
been acquitted or convicted.
This
article examines the procedures to be followed when pleading double jeopardy
and the applicability of the pleas in bar autrefois
acquit and autrefois convict.