Most modern legal systems have significantly limited the prosecution’s right of appeal. This is because of the long held double jeopardy rule that forbids a defendant from being tried again on the same (or similar) charges following a legitimate acquittal of conviction. This rule has been a central principle of legal systems and until quite recently, could not be abrogated.
However, modern reforms in the Commonwealth have given the prosecution a right of appeal, albeit a very limited one.
Like most other Caribbean Commonwealth countries, there is no right of appeal for the proseution in Jamaica. While Cabinet has approved the enactment of laws to give the DPP the right to appeal, it will be quite a limited right. Prosecutors will only be able to appeal sentences that the prosecution believes to either be manifestly inadequate or unduly lenient. The prosecution will also be allowed to appeal where the court did not have the power in law to impose an appropriate sentence.
However, it may suit Jamaica well to follow in the footsteps of other commonwealth countries and give our prosecutors a less restricted right of appeal. In the Commonwealth, the trend has been to allow the prosecution a right of appeal in cases of serious offences, where fresh and compelling new evidence was found, the acquittal was tainted and/or where it became clear that key witnesses had given false evidence. In some jurisdictions, provisions were included for cases where the accused confesses to the crime after acquittal. Interestingly these exceptions only apply to serious and grievous indictable offences that carry severe penal consequences e.g. murder.
In November 2011, the Victorian Parliament passed the Criminal Procedure Amendment (Double Jeopardy and Other Matters) Act 2011. The reforms introduced by the amending Act allow a new trial to be ordered where there is compelling new evidence that a person previously acquitted of a serious crime was in fact guilty.
The new law will apply in cases such as where there is fresh and compelling DNA evidence, where the person acquitted subsequently admits to the crime, or where it becomes clear that key witnesses have given false evidence. Retrial applications, however, can only be made for serious offences such as murder, manslaughter, arson causing death, serious drug offences and aggravated forms of rape and armed robbery.
These exceptions are similar to the ones that exist in other commonwealth jurisdictions.
Canadian law allows the prosecution to appeal an acquittal. The results of the appeal/new trial are not considered to be double jeopardy because the verdict of the first trial would either be annulled or a conviction might be substituted for an acquittal. Substitution of a conviction for an acquittal is rarely done. In this case, the appeal and subsequent conviction are deemed to be a continuation of the original trial.
For an appeal from an acquittal to be successful, the Supreme Court of Canada requires that the Crown show that an error in law was made during the trial and that the error contributed to the verdict.
Law reform of the double jeopardy rule in the UK was first articulated in the Macpherson Report. This report recommended that the double jeopardy rule should be abrogated in murder cases, and that it should be possible to subject an acquitted murder suspect to a second trial if “fresh and viable” new evidence later came to light. The Law Commission of England and Wales later supported this proposal in its report “Double Jeopardy and Prosecution Appeals” (2001). Six months after this report, the Auld report by Lord Justice Auld opined that the Law Commission had been unduly cautious by limiting the scope to murder and that “the exceptions should … extend to other grave offences punishable with life and/or long terms of imprisonment as Parliament might specify.”
These recommendations were implemented within the Criminal Justice Act 2003 and came into force in April 2005. It opened certain serious crimes (including murder, manslaughter, kidnapping, rape, armed robbery, and serious drug crimes) to a retrial, regardless of when committed, with two conditions: the retrial must be approved by the Director of Public Prosecutions, and the Court of Appeal must agree to quash the original acquittal due to “new and compelling evidence.”
These three jurisdictions show that the prosecution may be given a right of appeal without violating the principle of double jeopardy. Their approach seems to be the better view in ensuring that just is served. After all, isn’t that the purpose of our criminal law? Jamaica should look to these provisions for guidance on how to better administer justice and improve the prosecution’s efficacy.
© Kathryn Williams 2014