This article was originally published on the School of Law blog https://criminaljusticeinireland.wordpress.com.
Dr Ger Coffey, Lecturer in Law and member of the Centre for Crime, Justice and Victim Studies, School of Law, University of Limerick
The double jeopardy principle is a legal concept that is well known throughout the common law world. The protection has constitutional status implicit in Article 38.1 of the Constitution and is enshrined in international instruments such as the European Convention on Human Rights (Article 4 of Protocol No. 7) and the International Covenant on Civil and Political Rights (Article 14.7). Three essential protections are included in the principle of double jeopardy: protection from being retried for an acquittal, protection from retrial after a conviction, and protection from being punished multiple times for the same offence.
Exposition of the principle
In Registrar of Companies v Anderson  1 IR 21 at 26, the Supreme Court considered the theoretical foundations and practical effect of the prohibition on double jeopardy. Murray CJ stated:
“The rule, or what also might be called the notion, of double jeopardy is not normally relied upon in express terms in the sense that if a person is prosecuted for an offence arising out of the same breach of the law or the same essential ingredients for which he has previously been tried and either convicted or acquitted, his defence to the second prosecution will be based on the pleas of autrefois acquit or autrefois convict. If either plea is successful the prosecution may proceed no further….”
This provides an authoritative description of the autrefois pleas and was further emphasised by the Supreme Court in DS v Judges of the Cork Circuit and the DPP  4 IR 379, where the Court held that two previous trials for sexual offences, which had ended without resolution when the jury failed to reach a verdict, neither amounted to autrefois convict (previously convicted) nor autrefois acquit (previously acquitted). Denham J stated:
“Autrefois convict refers to a situation where an accused was formerly convicted of the crime in issue. It enables a plea, and a decision if true, that he has already been tried and convicted of the same offence before a court. An accused may not be retried for an offence for which he has already been tried and convicted, and he may not be put in jeopardy of such a trial. Autrefois acquit refers to a situation where an accused was previously acquitted of the crime in issue.”  4 IR 379 at 388
The special pleas in bar will not apply to a case where the accused has neither been acquitted nor convicted of the offences in issue by a court of competent criminal jurisdiction. The primary rationale of the prohibition on double jeopardy, despite its complications, is to protect persons from being prosecuted and punished more than once for the same offence.
Applicability of the pleas in bar
In The People (DPP) v O’Shea  IR 384 at 416, Walsh J stated that the autrefois pleas are “equally applicable to convictions [and presumably acquittals] in non-jury trials as it is to convictions arising from jury trials.” The applicability of the pleas in bar to the District Court is important given its extensive jurisdiction in terms of the number and gravity of offences and the punishments that Court is empowered to impose. Although trials on indictment carry heavier penalties and involve a greater degree of trauma and adverse social stigma for the accused, this can equally be true where the accused has been summoned in respect of a multiplicity of offences which, when combined, have the potential to cause even greater harassment of and distress to the accused.
The decision of a disciplinary tribunal is not equated with a conviction or acquittal by a court of competent criminal jurisdiction for the purpose of raising the special pleas in bar autrefois acquit and autrefois convict. However, the court may nevertheless exercise the inherent power to stay or prohibit a prosecution as an abuse of process if it is deemed to be unfair or oppressive. Likewise, an acquittal by a court of competent criminal jurisdiction will not give rise to estoppel of subsequent disciplinary proceedings although the High Court may exercise its discretionary power to injunct the subsequent proceedings on grounds of unfairness. InGarvey v Minister for Justice, Equality and Law Reform  1 IR 548, the Supreme Court held that an acquittal on the merits did not necessarily preclude an internal disciplinary inquiry being pursued to investigate the same allegation that was at issue in the criminal trial. In deciding whether or not to allow an internal disciplinary inquiry relating to the same allegation, on foot of which there had been an acquittal on the merits, the court must consider whether the surrounding facts and circumstances of the case rendered it oppressive and unfair to allow the disciplinary inquiry to proceed. If there had been an acquittal on the merits and if, on the particular facts and circumstances of the case, it would be unfair to conduct an internal disciplinary inquiry into the same matter that was at issue in the criminal trial, the inquiry should not be allowed to proceed.
The issue may arise as to whether an accused may plead autrefois convict, or similar plea in bar, where he has been subject to an administrative penalty or civil sanction, that is, a non-criminal sanction in respect of the same matter for which he is subsequently being prosecuted. Register of Companies v Anderson (op. cit.) involved a criminal trial after the imposition of an administrative penalty. Double jeopardy did not arise because there was no previous trial. However, the Supreme Court noted that where a heavier administrative penalty was imposed the court would examine the process leading to its imposition and might treat an administrative penalty as a penal sanction in substance if it was excessive or disproportionate to the administrative objective being pursued.
In contrast to the scenario in Anderson, a person who has been tried and acquitted by a court of competent criminal jurisdiction may be subject to disciplinary proceedings in respect of the same allegations. Pleas ofautrefois acquit have seldom succeeded to prohibit disciplinary proceedings, although some have on the broader fairness-based grounds. Nonetheless, if the accused cannot rely on a plea of autrefois acquit, disciplinary proceedings may be restrained if the court is convinced that it would be unfair or oppressive to subject the acquitted person to a further investigation with the possibility of punishment in respect of the same or substantially the same matter as the previous criminal trial. In AA v Medical Council  3 IR 1 at 33, the High Court per O’Caoimh J stated:
“In this regard what remains is not an issue as to whether the principles of double jeopardy have any application or whether the principle of autrefois acquit has any application to the facts of the instant case. I am satisfied that the issue is whether it would be manifestly unfair to permit the proposed inquiry or any part of it to proceed in light of the acquittal of the applicant on the charges preferred against him and tried by the Circuit Criminal Court.”
In cases where the inquiry was undertaken in a different context to the criminal proceedings which had been brought against the applicant, with different objectives, including protection of the public, the principle of double jeopardy would not apply. In Curtin v Dáil Eireann  2 IR 556, the applicant argued that having been acquitted at a criminal trial he could not be tried by the Houses of the Oireachtas effectively for the same offence. The High Court per Smyth J rejected the argument based on double jeopardy as the investigation of alleged ‘stated misbehaviour’ was a constitutional function of the Oireachtas designed to protect public confidence in the judiciary. On appeal, the Supreme Court held that the acquittal of the applicant of the charges laid against him in the indictment means operates to prohibit a retrial in respect of those matters. The Oireachtas committee were considering an entirely different matter, that is, to investigate the question of whether the applicant has been guilty of ‘stated misbehaviour,’ as alleged in a resolution ‘calling for his removal’ from the bench. This was a constitutional function of the Oireachtas designed to protect public confidence in the judiciary and did not constitute a retrial for the same offence.
What is essential to a plea of autrefois acquit or autrefois convict is proof of a final verdict of acquittal or conviction by a court of competent criminal jurisdiction. The fact that the accused might have been in peril of conviction for a particular offence will not suffice. In O’Brien v Judge Fahey, Judge McCarthy and the DPP  IEHC 252, the fact that the accused had been previously subjected to an unresolved criminal trial was not sufficient ground to prohibit any further prosecution in respect of the offences. The District Court trial never concluded with a finding of guilt or innocence of the applicant and as the proceedings had not concluded a plea of autrefois convict or autrefois acquit could not avail. There were no special circumstances that would have rendered it an injustice to require the accused to meet the charges against him for a second time.
The same criminal offence
The Irish superior courts have adopted the generally accepted ‘same elements’ test of sameness of criminal offences. In Registrar of Companies v District Judge Anderson  1 IR 21 at 25, the Supreme Court per Murray CJ invoked the “same breach of the law or the same essential ingredients for which he has previously been tried and either convicted or acquitted” test. Furthermore, in Re National Irish Bank (No. 2)  3 IR 190 at 204, the High Court per Kelly J. stated it was clear that double jeopardy “is a narrow principle of limited effect. It concerns itself with identical or similar charges not with identical evidence.”
With regard to the issue of lesser-included offences, an acquittal on a charge also prohibits a subsequent prosecution for an offence of which the accused could have been convicted. In The People (DPP) v Finnamore 1 IR 153 at 171, the Court of Criminal Appeal per Macken J stated the case law does not “support a principle or rule that a plea in bar against a retrial on a more serious charge must succeed where a person has been convicted at an earlier trial, or on an earlier indictment, on a lesser charge.” A typical example being an acquittal on a charge of murder being raised as a plea in bar to a subsequent charge of manslaughter.
The invocation of the ‘same elements’ test (or what is otherwise known as the same ‘ingredients’ or ‘legal characteristics’ test) serves to ensure that an accused is not convicted and punished on multiple occasions for the same offence. Indeed, with the ever-increasing volume of regulatory offences an increasing range of activities may result in charges under several statutory provisions or under the common law. Otherwise, the prohibition on double jeopardy would be ineffective because the ‘same transaction’ (criminal episode) may leave an accused open to prosecution and conviction under several different statutory or common law provisions.
Statutory modification of the double jeopardy principle
Part 3 of the Criminal Procedure Act 2010 Act modified the double jeopardy principle to allow post-acquittal retrial for relevant offences (outlined below) where new and compelling evidence is discovered or subsequently emerges, or in the case of a tainted acquittal (interference with the criminal justice process such as jury or witness tampering). The offences in the Schedule to the 2010 Act are:
- common law offences: murder (including murder to which section 3 of the Criminal Justice Act 1990 applies), manslaughter, treason, rape
- genocide, crimes against humanity, war crimes and ancillary offences: under sections 7 and 8 of the International Criminal Court Act 2006
- torture: an offence under any of the following provisions of the Criminal Justice (United Nations Convention against Torture) Act 2000: section 2(1) (offence of torture by a public official), section 2(2) (offence of torture instigated by a public official); section 3(a) (attempt or conspiracy to commit torture); section 3(b) (obstructing prosecution of another)
- sexual offences: any offence under section 3 (aggravated sexual assault) and section 4 (rape) of the Criminal Law (Rape) (Amendment) Act 1990; any offence under section 2 of the Criminal Law (Sexual Offences) Act 2006 (defilement of child under 15 years of age); n offence under section 1 of the Punishment of Incest Act 1908 (incest by males)
- offences against the person: an offence under any of the following provisions of the Non-Fatal Offences Against the Person Act 1997: section 4 (causing serious harm); section 6(5) (syringe offences); section 8(2) (placing or abandoning syringe); section 15(1) (false imprisonment)
- trafficking: an offence under section 3 (1) of the Child Trafficking and Pornography Act 1998 (trafficking, taking etc., for the purposes of sexual exploitation); any offence under section 2 (trafficking etc., of children) and section 4 (trafficking of persons other than children) of the Criminal Law (Human Trafficking) Act 2008
- offences against the state: an offence under section 6 of the Offences against the State (Amendment) Act 1998 (directing an unlawful organisation). An offence under any of the following provisions of the Criminal Justice (Terrorist Offences) Act 2005: section 9(1) (hostage taking), section 9(2) (attempted hostage taking); section 10(1) (terrorist bombing); section 10(2) (terrorist bombing causing major economic loss); section 10(3) (attempted bombing)
- organised crime: an offence under section 71A of the Criminal Justice Act 2006 (directing a criminal organisation)
- drugs offences: any offence under sections 15(1) (possession of controlled drugs for unlawful sale or supply), 15A (offence relating to possession of drugs with value of £10,000 or more) and 15B (importation of controlled drugs in excess of certain value) of the Misuse of Drugs Act 1977
- firearms offences: an offence under section 15 of the Firearms Act 1925 (possession of firearms with intent to endanger life); An offence under section 27 of the Firearms Act 1964 (prohibition of use of firearms to resist arrest or aid escape)
- explosives offences: an offence under section 2 of the Explosive Substances Act 1883 (causing explosion likely to endanger life or damage property)
- damaging property: an offence of arson under section 2(1) or (3) or an offence under section 2(2) (whether arson or not) of the Criminal Damage Act 1991 (damaging of property)
- robbery and burglary: any offence under section 13(1) (aggravated burglary) and section 14 (1) (robbery) of the Criminal Justice (Theft and Fraud Offences) Act 2001
- air navigation offences: an offence under section 11 of the Air Navigation and Transport Act 1973 (unlawful seizure of aircraft); An offence under section 3(1) of the Air Navigation and Transport Act 1975 (unlawful acts against the safety of navigation)
- maritime security offences: an offence under section 2(1) of the Maritime Security Act 2004
- accomplices: references in the Schedule to the 2010 Act to an offence include references to participation as an accomplice of a person who commits the offence
- attempts and conspiracy: an offence of attempting or conspiring to commit any offence mentioned in the Schedule to the 2010 Act
Part 4 of the 2010 Act provides the DPP with a right of appeal to the Supreme Court on a ‘with prejudice’ basis against an acquittal where the acquittal arises from an erroneous ruling by the trial court on a point of law arising during the trial. DPP v JC  IESC 31 inter alia pertained to a with prejudice prosecution appeal on a point of law under section 23 of the 2010 Act on the basis that there had been an error of law during the original trial – erroneously excluded compelling evidence. However, a unanimous Supreme Court held that, on the facts of the case at issue, it would not be in the interests of justice to direct a retrial in this case.
The superior courts have provided extensive guidance on the prohibition of double jeopardy. Although the principle is a fundamental right for the accused, it also serves to protect the public interest in preserving the integrity of the criminal trial process. Exposing an accused to a series of repeated trials may undermine fair procedures and finality in the criminal process. Successive trials for the same offence could expose the accused to a statistically greater risk of being convicted other than on the merits.
Successive trials, post acquittal retrial or retrial following a with prejudice appeal under the provisions of the 2010 Act may not constitute a breach of the constitutional guarantee of a trial in due course of law. There are competing public and personal, or private interests to be considered. The public interest is to prosecute crime and to protect the public interest in fair procedures, which must be balanced against the private interest of the accused in fairness in his trial, and the victim of crime whose interests must not be swept aside in this balancing exercise. The facts of each case must be given careful consideration.