Can you be retried after an acquittal

The Court of Appeal will take any failure into account under section 79 2 c and d. The DPP has agreed that any failure to act with due diligence will be part of the public interest test which he has to apply, in accordance with section 76 4 b. Evidence which was not available or which was available but without probative value is the kind of evidence for which the legislation was designed and there is no policy reason that it should not be considered in accordance with sections 76 and Examples include a highly cogent witness statement, a highly credible confession, or evidence which was available at the time but of which the relevance has only come to light, as a result of developments in forensic science.

Section 78 3 states that evidence is "compelling" if it is a reliable, b substantial, and c in the context of the issues in dispute at the trial, it appears highly probative of the prosecution case against the acquitted person. Thus, if in a rape trial identity was in issue, then the new evidence as to identity could potentially be compelling. If, on the other hand, the issue at trial was consent and not identity, then the new evidence as to identity could not be "compelling".

For example, if the acquitted person was acquitted of arson endangering life, and at trial he had accepted that he was present but denied participation, CCTV evidence cannot be compelling if all it goes to prove is that the person was present.

By contrast, if the CCTV evidence is of such a quality that it is "highly probative" as to the person's role, it could potentially be "compelling". The reason behind this approach is not to consider how strong the original case now is with the enhancement of the new evidence but to enable a case to be reopened when the evidence comes to light which is itself so apparently compelling that the court hearing the application is driven to the conclusion that at that stage the evidence is highly probative of the prosecution case against the acquitted person.

The probative value of the new evidence in each case is to be assessed on its own merits. The DPP has agreed that he would only want to proceed in cases in which, as a result of the new evidence a conviction is highly probable, either by a plea of guilty or by the verdict of the jury and any acquittal by a jury would appear to be perverse.

This is consistent with the requirement of high probative value of the item of evidence specified in section 78 3 c. In the case of R v Miell [] 1 WLR , the Court of Appeal ruled that where an application under section 76 for the quashing of an acquittal and an order for a retrial was based on the defendant's plea of guilty to perjury in respect of his evidence at the original trial in which he had denied the offence, it was for the CA to form its own view as to whether the fresh evidence was "compelling" within section 78 i.

The fact that if the application were granted, the conviction for perjury would be admissible at the retrial and that proof of the conviction should be taken to be proof of the defendant's guilt unless he proved the contrary under section 74 of PACE , did not absolve the court at the stage of an application for a retrial from forming its own assessment.

Where the new confession evidence contained demonstrable untruths and had subsequently been retracted, the evidence did not meet the test. This was especially because the original jury had acquitted despite the evidence of a confession made after the offence, which on its face was more credible than the new confession evidence, as there had been no demonstrable untruths contained therein. The DPP must consider the public interest in deciding whether or not to make an application to the Court of Appeal to quash an acquittal.

An application will usually take place so long as the other conditions are satisfied unless there are public interest factors tending against an application which clearly outweigh those factors tending in favour. The DPP acts on behalf of the public and not just in the interests of a particular individual. However, the DPP should take into account the consequences for the victim of whether or not to make an application to the Court of Appeal, and any views expressed by the victim or the victim's family.

Section 79 2 Archbold states that the Court of Appeal is to reach its decision having regard in particular to:. Failing to exclude evidence which the police could reasonably have found during the original investigation might be seen as an incentive to poor investigations.

To safeguard against this, section 79 2 provides a specific element of due diligence into the 'interests of justice' test the Court of Appeal must apply in considering applications for a retrial. No court would allow the prosecution a second chance of prosecuting a person to make up for the incompetence of the prosecution police and prosecutor. The DPP has agreed he will only consent to an application for a reinvestigation or an application to the Court of Appeal to quash the acquittal where the prosecution comes to the process with 'clean hands'.

Therefore, the DPP will consider any failure to act with due diligence to be part of the public interest test which he has to apply, in accordance with section 76 4 b. The recommendation should also address the question of whether, and if so when, reporting restrictions will need to be applied for or varied. If the original offence was one for which the Attorney General's consent was needed to commence a prosecution, then the DPP will consult with the Attorney before the DPP gives his consent to an application to the Court of Appeal.

This is to ensure that the Attorney General is advised of the case and kept informed of progress. The Attorney General's consent having been given once is not required a second time. If the DPP approves the case as being one where it is appropriate for an application to the Court of Appeal to be made, then the procedure should be followed as laid down in section 80 and the Rules of Court.

The Court of Appeal can only make an order to quash an acquittal and order a retrial if it is satisfied that there is both new and compelling evidence and that it is in the interests of justice. The prosecutor who wishes to make an application under section 76 1 or section 76 2 must give notice of the application to the Court of Appeal section 80 1 Archbold The prosecutor shall send with the notice to the registrar and the acquitted person, where practicable, the following documents:.

The prosecutor must give notice to the acquitted person of the application within two calendar days including the day the notice is given to the Court of Appeal. If the person on whom notice is to be served is outside the UK, the prosecutor should apply to the Court of Appeal for an extension of the period for service in Form RSO 1. Where the acquitted person is in the UK, the notice of application must either be served personally on the AP or on his solicitor within the two-day period, or the notice of application must be left at the acquitted person's known or last known address or place of business or his solicitors address, or, if willing to accept service by fax or by electronic means, on the same day as the notice is served on the Court of Appeal because service, in the above circumstances, is effected on the next business day after the day on which it is left.

This means that service on an address, or if agreed by fax or electronic means, must only take place Monday-Thursday.

The notice must charge the acquitted person with the offence, if the person has not already been charged by the police under section 87 4. If the person has already been charged under section 87 4 , the notice must say so. If the prosecutor intends to ask the Court of Appeal to make an order under section 80 6 for the production of any document, or other thing or for the attendance of a witness, at the section 76 hearing, then this should be specified in Form RSO 1.

The prosecutor must, as soon as practicable after service of the notice on the acquitted person, serve on the registrar a witness statement or certificate of service which exhibits a copy of the notice CPR Part The prosecutor should review the reporting restrictions in place if any and consider whether an application for such an order, or for an existing order to be varied or revoked, should be made see section 17 below for the test the court will apply in deciding whether to order reporting restrictions.

The prosecutor should consult the Senior Investigative Officer when considering this issue. If reporting restrictions are applied, unless an earlier time is specified in the order applying the restrictions, then they may be applied until the end of the retrial or until it becomes clear that the acquitted person can no longer be retried. If the acquitted person chooses to oppose the application under section 76, he or he must serve on the registrar and the prosecutor a response in Form RSO 2 not more than 28 days after receiving the notice of the section 76 application.

This time period may be extended on application to the Court of Appeal. A single judge or the registrar, can hear the application to extend the time period. If the acquitted person intends to ask the Court of Appeal to make an order under section 80 6 for the production of any document, or other thing or for the attendance of a witness, at a section 76 hearing, then this must be stated on Form RSO 2.

If the application to extend time was heard by a single judge or registrar, and refused, that decision can be appealed to the full Court of Appeal if from the single judge and to the single judge if from the registrar by serving Form RSO 5. See CPR Part Before the section 76 hearing a party to the application may apply for an order under section 80 6 for the production of any document or other thing, or for the attendance of a witness in accordance with CPR Part This should be on Form RSO 3.

An acquitted person may at this point be charged and in custody under section 88 4 b , charged and bailed by the Crown Court under section 88 4 a , or not charged and at large. If the acquitted person has been charged, remanded in custody under section 88 4 b and the notice of application is served on the accused, he or she must be brought before the Crown Court as soon as is practicable, and in any event within 48 hours after the notice is given section 89 2.

The Crown Court must then either remand the accused in custody to be brought before the Court of Appeal for the hearing of the application, or bail him or her to appear before the Court of Appeal at the hearing of the application. If bail is granted, the court still has power to revoke that bail section 89 8 Archbold If the acquitted person is at large then the prosecutor should serve the section 76 application on the Court of Appeal and on the acquitted person and apply to the Crown court for the issue of a summons section 89 3 a or for a warrant for the person's arrest section 89 3 b.

The purpose of the summons is to bring the acquitted person before the Court of Appeal at the hearing of the application. A summons is the more likely way of proceeding at this point. If a warrant is issued under section 89 3 b and executed the acquitted person must be brought before the Crown court as soon as practicable and in any event within 48 hours after the arrest section 89 6. When the person is brought before the Crown Court, whether as a result of section 89 2 or section 89 6 , the court must then either remand the accused in custody to be brought before the Court of Appeal for the hearing of the application section 89 7 a , or bail him or her to appear before the Court of Appeal at the hearing of the application section 89 7 b.

Even though a summons is issued, the prosecutor may apply for a warrant of arrest subsequently section 89 3. The prosecutor may abandon "a section 76 application" before the hearing of the application by serving notice in Form RSO 7 on the registrar and the acquitted person CPR Part The acquitted person is entitled to be present at the hearing of the application except when in lawful custody elsewhere than in England, Wales or Northern Ireland , and to be represented.

Where the acquitted person is held in Scotland, the Scottish authorities should be consulted about producing the person in court, as the consent of the Scottish Executive Ministers is required in these cases.

If the court finds that sections 78 and 79 are satisfied, it must make an order quashing the acquittal and directing a retrial. The prosecutor has the right of appeal against the Court of Appeal's determination, with leave of the Court of Appeal or the Supreme Court, as does the acquitted person, see section Leave will only be given where the court certifies that a point of law of general public importance is involved in the decision and it appears that the point is one which ought to be considered by that House.

The application must be made within 14 days Criminal Appeal Act , section If the court does not make a "section 77 order" sought it must dismiss the application, and the suspect will then be released from custody or from any duty to appear before the court. If the prosecutor is minded to appeal the Court of Appeal's decision, he or she should seek leave to appeal or give notice that the prosecution intends to seek leave to appeal.

If the acquitted person is detained pending the appeal, section 38 of the Criminal Appeal Act applies: the acquitted person is not entitled to be present at the hearing of the appeal without the leave of the court section 81 5. Once the application has started to be heard by the Court of Appeal, section 90 applies. If the court adjourns the hearing it may remand the person on bail or in custody section 90 1.

If the court makes a "section 77 order" quashing the acquittal and directing a retrial, or a declaration that the acquittal is no bar to prosecution, it may make such arrangement as it thinks fit as regards remanding the accused person on bail or in custody until the date of the trial section 90 2.

Similarly, if the court dismisses the prosecution's application, or makes a declaration that the foreign acquittal is a bar to prosecution, and either the prosecution has notified the court that it intends to seek leave to appeal, or the court has granted leave to the prosecution to appeal, the court may make such arrangement as it thinks fit as regards remanding the accused person on bail or in custody until the leave or appeal process terminates.

Note, however, that although section 90 2 is expressed in terms of an unlimited discretion, the Court of Appeal's discretion is not unlimited. CPR Part Section 91 deals with the consequences of a revocation of bail where the bailed person is not before the court. Where a court revokes bail and that person is not before the court when bail is revoked, the court must order him to surrender forthwith.

A constable may arrest a person for failing to surrender without reasonable cause in accordance with the order. A person arrested on warrant must be brought as soon as practicable, and in any event, not more than 24 hours after he is arrested, before the Crown Court including Saturdays. The charge is framed, as it would have been under the law as it stood at the time of the alleged offence.

The indictment may include an offence which, or a person who, was not the subject of the "section 77 order" section 84 5. The prosecutor should arrange for the charged person to be arraigned on that indictment within two months of the Court of Appeal's order.

If the person is not arraigned within that time then the person against whom the order was made may apply to have it set aside section 84 4. Such an application must be made in accordance with CPR Part Custody time limits of days between preferment of the indictment and the start of the trial apply to retrials under Part 10 by virtue of Regulations made under the Prosecution of Offences Act This should not cause problems given that the indictment should be preferred within two months unless extended.

However, the prosecution can always apply for an extension of the custody time limit prior to its expiration under section 22 3 of the Prosecution of Offences Act , if acted with due expedition and there are good and sufficient cause for the extension.

In addition, if the person is not arraigned within that time, and even if the person does not apply to set aside the order, the prosecutor will have to obtain the leave of the Court of Appeal to proceed on the indictment, and leave will not be given if there has been undue delay.

Such an application must be made in accordance with rule The Court of Appeal may extend the two month period if satisfied that:. The Act does not specify on what basis the Court would decide to set aside the order, but it is likely either to extend the time period for the prosecution or to set aside the order, rather than leave the matter in limbo.

If the court sets aside the order it may also reinstate the original acquittal. If the original acquittal occurred outside the UK, the Court could declare that the original acquittal is a bar to any further prosecution for the qualifying offence. The Crown Court retains its discretion to stop a trial if it considers that to proceed would be an abuse of process. The Attorney General said in Parliament that he thought it unlikely that the trial court would reach a different decision from the Court of Appeal, although this must be feasible, for example where the Court of Appeal quashes an acquittal and orders a retrial and the Crown Court stays the retrial for abuse.

The prosecution may also appeal a judge's ruling to stop the case for abuse of process under section 58 of the Act prosecution rights of appeal. Again, the prosecutor should keep any reporting restrictions under review.

If it appears to the prosecutor that an order is needed, or needs to be varied, then the application should be made to the court. Section 84 6 provides that evidence which was given orally at the original trial must be given orally at the retrial unless Archbold :.

Use of depositions: If a deposition was read as evidence at the original trial where the accused was sent for trial under section 51 of the Crime and Disorder Act it may not be read as evidence at the retrial in reliance on paragraph 5 of Schedule 3 to the Crime and Disorder Act section 84 7. The retrial will hear all the evidence, and the "new and compelling" evidence will not be introduced as such, although it is clearly likely to stand out as new and compelling evidence in the context of the trial.

A witness may be cross-examined on evidence given by that witness at the original trial, for example if it amounts to a previous inconsistent statement. Note that the new rules on inconsistent statements mean that the earlier statement will go to the truth of the matter, and not just to the credibility of the witness. It is not in itself prejudicial for a jury to know that a matter before them has been tried before, but in the case of a retrial which has been ordered by the Court of Appeal under Part 10, it will be apparent that the Court of Appeal has quashed an acquittal and ordered a retrial because it was sufficiently impressed by the evidence.

The court may apply restrictions where it appears to the court that " the inclusion of any matter in a publication would give rise to a substantial risk of prejudice to the administration of justice in a retrial ".

The court may apply restrictions only if it considers it necessary to do so in the interests of justice section 82 3. The restrictions may apply to re-publication of a matter which has already been published section 82 4. Reporting restrictions may be applied by the court at any time after the re-investigation has commenced section 82 6. Before the application for a "section 77 order" has been made, the court may only do so on the application of the prosecutor.

After the application has begun, the court may do so of its own volition or on application of the prosecutor. The prosecutor may thus seek reporting restrictions at any time after the investigation of the qualifying offence has commenced since the acquittal. The prosecutor should consider whether to ask the court for reporting restrictions when the case is put to the DPP for consent to carry out investigative steps, and again at each stage thereafter.

An application by the DPP, under section 82 for restrictions on publication must be in Form RSO 4 and be served on the registrar and the acquitted person. The exception is where the application for reporting restrictions is not made as part of the application for a "section 77 order" and the DPP provides details of reasons why the acquitted person should not be notified on the application for reporting restrictions.

In that event, the Court of Appeal may order that the acquitted person is not to be served with notice of the application for reporting restrictions CPR Part If the prosecutor seeks such restrictions and they are applied, the order applying the restrictions must specify when they cease to have effect section 82 8.

Once the notice of application has been given the restrictions will cease to have effect either when there is no longer any step that could be taken which would lead to a retrial or, if there is s retrial, at the end of the trial, unless the order specifies some earlier time section 82 9. A court may vary or revoke reporting restrictions on its own motion or on application by a prosecutor, or by the acquitted person section 82 7.

An application to vary or revoke an order for reporting restrictions may be made in writing by a party at any time after the order was made rule 9 1. A copy of the application to vary or revoke reporting restrictions shall be sent to all parties unless the application to vary or revoke is made by the DPP and before a notice of under section 76 has been given and the Court of Appeal has ordered that service on the acquitted person is not to be effected.

Aggravating and Mitigating Factors in Criminal Sentencing. Restitution for Crime Victims. Receiving Immunity for Testimony in a Criminal Case. Classification of Criminal Offenses. Admissibility of Evidence in Criminal Cases. Criminal Appeals. Motions for a New Trial in Criminal Cases. Competency to Stand Trial for Criminal Defendants.

Continuances in Criminal Cases. Judgments of Acquittal in Criminal Trials. Joint Trials for Criminal Defendants.

Immigration Removal Proceedings and Criminal Law. Miranda Rights for Criminal Suspects. Right to Record Police Officers. Arrests and Arrest Warrants. Constitutional Rights in Criminal Proceedings. Discovery in Criminal Cases. Hearsay in Criminal Cases. Stages of a Criminal Case. Stages of a Criminal Trial. Limits on Searches and Seizures in Criminal Investigations. Alcohol Crimes.

That means, for example, that a defendant convicted of a crime isn't immune from a civil lawsuit for damages from the victim of the crime.

It also means that the DMV can suspend and revoke drivers' licenses for the same actions that lead to criminal convictions. An example is drunk driving, which a court and the DMV can punish separately. Double jeopardy prohibits different prosecutions for the same offense.

This rule can come into play when the government brings a charge against someone for an incident, then prosecutes that person again for the same incident, only with a different charge.

In that kind of situation, if each charge doesn't require that the prosecution prove at least one additional fact that the other doesn't, then the charges constitute the same offense under double jeopardy law. Here's an example showing how that rule works:. A man was convicted of joyriding, the elements of which were taking or operating a vehicle without the owner's consent. Later, the government charged him with auto theft, which consisted of joyriding while intending to permanently deprive the owner of the vehicle.

To prove joyriding, a prosecutor wouldn't have had to prove anything more than what's required to prove auto theft. Joyriding was a " lesser included " offense of auto theft. Joyriding and auto theft therefore represented the same offense, and the auto theft prosecution violated the double jeopardy principle.

Brown v. Ohio , U. The government must place a defendant "in jeopardy" for the Fifth Amendment clause to apply. The simple filing of criminal charges doesn't cause jeopardy to "attach"—the proceedings must get to a further stage.

Indeed, in many cases, the prosecution can drop charges through dismissal or nolle prosequi , then later refile them. Generally, jeopardy attaches when the court swears in the jury.

In a trial before a judge, jeopardy normally attaches after the first witness takes the oath and begins to testify. But the empaneling of a jury— selecting jurors and swearing them in—doesn't actually mean that, whatever happens, the defendant can't be retried. Of course, if the jury acquits or convicts the defendant, the government normally can't re-prosecute. But if there was a conviction and an appellate court overturns the judgment, the prosecution might be able to retry the defendant.

Retrial sometimes isn't allowed, such as when an appeals court decides that the evidence was insufficient to convict the defendant. Criminal trials often end in something other than acquittal or conviction. There might be a mistrial because of jury misconduct, for example, or the jury might "hang," meaning that its members can't agree on a verdict.

In these kinds of scenarios, even though a jury has already been sworn in and jeopardy has thereby attached, retrial is usually allowed. There are exceptions that can prevent retrial—for instance, severe misconduct by a prosecutor intended to create a mistrial.

But, in lots of cases, the swearing in of the jury isn't the actual point of no return. The attachment of jeopardy doesn't necessarily mean the government can't re-prosecute the defendant; jeopardy must also terminate. In other words, the case must in some sense conclude.

The classic example is a jury reaching a verdict of either guilty or not guilty. Jeopardy also terminates when a judge finds the evidence insufficient to convict the defendant and enters a judgment of acquittal rather than letting the case go to the jury. But just because a case ends doesn't mean that retrial is barred.

Again, a hung jury often allows for a retrial. Similarly, if the defense consents to a mistrial, perhaps because of juror misconduct, the prosecution can usually re-prosecute the defendant. On the other hand, if a judge declares a mistrial over the defense's objection, the prosecution typically must show a critical need in order to retry the defendant. But that isn't as tough as it might seem. For example, retrial might well be allowed when, despite the defense's protest, a judge declares a mistrial because a juror stopped coming to court.

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