Double Jeopardy Law: Can You Be Tried Twice?

The rule against double jeopardy has protected defendants for centuries—but recent reforms allow retrials in exceptional cases.

Double Jeopardy: Can Someone Be Tried Twice for the Same Crime?

Double jeopardy is the principle that a person should not usually be tried again for the same offence after they have already been acquitted or convicted. It is an important protection in criminal law because it promotes finality, protects defendants from repeated prosecutions and helps prevent misuse of state power.

The Traditional Rule

Historically, English criminal law recognised two related pleas. Autrefois acquit prevented a person from being tried again after an acquittal for the same offence. Autrefois convict prevented a person from being tried again after they had already been convicted for the same offence.

The courts could also prevent a prosecution from continuing where bringing a fresh case would amount to an abuse of process. This helped stop unfair proceedings based on substantially the same facts, where it would be unjust to allow the case to continue.

How the Law Changed

The Criminal Justice Act 2003 introduced a major exception to the traditional rule in England and Wales. In limited circumstances, an acquittal for certain serious offences can be quashed,d and a retrial can be ordered.

This does not mean that anyone acquitted of an offence can be tried again because the prosecution is unhappy with the result. The exception is deliberately narrow and applies only to qualifying serious offences, such as murder and other offences listed in the legislation.

New and Compelling Evidence

For a retrial to be ordered, there must be new and compelling evidence. Evidence is generally "new" if it was not available, or could not reasonably have been available, at the original trial. It is "compelling" if it is reliable, substantial and highly probative of the case against the acquitted person.

Examples may include new forensic evidence, DNA evidence, fingerprint evidence, significant new witness evidence, or other material that strongly points towards guilt and was not properly available at the original trial.

The Role of the Court of Appeal

A retrial cannot take place automatically. The Director of Public Prosecutions must consent to an application. The Court of Appeal must decide whether the legal test is met.

The Court of Appeal will consider whether the evidence is new and compelling, whether the offence is one to which the statutory exception applies, and whether a retrial would be in the interests of justice. The court may also consider issues such as delay, fairness, and publicity, as well as whether the defendant can still receive a fair trial.

Only Serious Cases Are Covered

The double jeopardy exception applies only to a limited category of serious offences. It is most commonly associated with murder cases, but the legislation also covers other grave offences. Less serious offences are not generally affected by this exception.

The rule is also not a general power to reopen old cases. It is intended for exceptional situations in which significant new evidence has emerged, and the public interest in a retrial outweighs the usual principle of finality.

The Rule Can Only Be Lifted Once

The prosecution does not get repeated opportunities to keep trying a defendant until it obtains a conviction. Under the statutory scheme, the rule against double jeopardy can be lifted only once for each qualifying offence.

This restriction is designed to preserve the balance between correcting a potentially serious injustice and protecting individuals from repeated prosecution.

Tainted Acquittals

There are separate rules for cases where an acquittal may have been affected by interference with the trial process, such as intimidation of witnesses or jurors. These are known as tainted-acquittal cases and are distinct from the "new and compelling evidence" double-jeopardy provisions.

Why the Law Matters

The modern law tries to balance two competing principles. On one side is the need for finality and fairness to defendants. On the other hand, there is a public interest in ensuring that very serious crimes can be retried when powerful new evidence emerges after an acquittal.

Because the consequences are significant, applications to quash an acquittal and order a retrial are rare and carefully controlled by the courts.

When Legal Advice May Be Needed

Anyone facing investigation, prosecution, appeal issues or a possible retrial after acquittal should seek urgent advice from a criminal defence solicitor. These cases are highly technical and can involve complex issues of evidence, fairness, procedure and human rights.

Legal advice may also be important for victims' families where new evidence emerges after an acquittal, as the decision whether to pursue an application will involve the police, prosecutors and the Court of Appeal.

Disclaimer

Solicitors.com is not a firm of solicitors and does not provide legal advice. The information on this page is for general guidance only and should not be relied upon as a substitute for advice from a regulated solicitor. Criminal law and procedure can change, and how the law applies will depend on the facts of each case.

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