Those of you who are studying criminal law or working in a criminal law department may not have come across the concept of ‘Autrefois Acquit’ before. In fact, it is very rare, but I mention it here because it has reared its head in the past year. I also mention it because when I was a law student, in the long distant past, legal maxims in a language other than English (mainly in Latin or French) were certainly not uncommon. Indeed, when I very first started to learn law - Roman Law was a compulsory subject for a law degree and the paper was written in Latin. I had come across Latin as a schoolboy, but I wasn’t very good at it. You will, therefore, understand my great relief when the law degree requirement for a pass in Roman Law was abolished very soon after I started my legal studies.
The term ‘Autrefois Acquit’ is French and translates into English as ‘Previously Acquitted’. It means that anyone who had been acquitted of a criminal offence either in the Magistrates’ court or a higher court, could not be re-charged for the same (or substantially the same) offence. If he or she was re-charged, they would enter a plea of ‘Autrefois Acquit’, the Judge (or Magistrate) would determine the issue and, if successful, bar any further proceedings on the charge/indictment.
I would mention that there is a similar maxim, this time in Latin – ‘Nemo debet bis vexari’ which, roughly translated, means ‘Nobody ought to be twice vexed’. This maxim was seldom used in respect of criminal charges but more often is used in respect of civil matters, i.e. ‘A person should not be sued more than once over the same dispute’.
Both maxims come under the umbrella of ‘Double Jeopardy’, which is more easily understood. There is even a 1999 American Film called ‘Double Jeopardy’, starring Tommy Lee Jones and Ashley Judd based on the theme of a wealthy wife who is convicted of her husband’s murder (which he arranged) and sent to prison. After many years she is let out on parole and tries to find her son, and in so doing discovers that her husband is still alive. She sets out to find him and kills him. There was nothing that the State could do because of the double jeopardy rule – she had already been sentenced for his murder and convicted. It’s a good film and well worth watching!
However, time changes things. In 2003, the Criminal Justice Act of that year was passed. In it, the defence of double jeopardy was reformed (not done away with) by allowing re-trials in respect of a number of serious offences where the circumstances set out in the Act warranted it. For example, the failure of a Jury, or a Magistrate, to agree upon a verdict, a re-trial ordered by the Court of Appeal, a tainted acquittal (e.g. by intimidation – also covered previously by the ss 54-57 of the Criminal Procedures Act 1996), an irregularity in the proceedings that resulted in the Jury being discharged, new and compelling evidence (e.g. evidence against the acquitted person being reliable and compelling) and it is in the interests of justice, which may cover a number of things, such as the due diligence of the police in its investigations, adverse publicity about the case prior to trial, and the like.
One of the main contributing factors to the passing of the Act (which came into effect in April 2005) was the immense publicity and public interest that erupted because of the murder of Stephen Lawrence on the 22 April 1993. Stephen was murdered in a racially motivated attack while waiting for a bus in south London. He was only 18 years old. The case was nationwide and led to the amendments to the rule against double jeopardy. Six suspects were arrested but not charged; a private prosecution subsequently initiated by Lawrence's family failed to secure convictions for any of the accused. A 1998 public inquiry recommended, amongst other things that the double jeopardy rule should be repealed in murder cases to allow a retrial upon new and compelling evidence.
In 2011, it was announced that two of the original suspects, Gary Dobson and David Norris, were to stand trial for the murder in the light of new evidence. Dobson's original acquittal (under the private prosecution) had been quashed by the Court of Appeal, thus allowing a retrial to take place. Such an appeal had only become possible following the 2005 change in the law. Dobson and Norris were convicted of murder on 3 January 2012.
There have been several double jeopardy cases since the passing of the act. The oldest, as a matter of interest, was that of Dennis McGrory who murdered a teenage girl some 50 years ago. He was 28 when he sexually assaulted, stabbed, and strangled a 15-year-old girl in 1975. He was cleared of murder the following year on the directions of a judge but was finally tried and convicted in March 2022 on DNA evidence unobtainable when he first stood trial. If it was not for the 2005 Act, he would have got away with it.
Author: John Stacey-Hibbert, LLB, LLM
John worked in the legal field for over 50 years and has a wealth of knowledge and expertise. He practiced as a lawyer in London, lectured law at South Devon College and became the General Secretary of the National Association of Licensed Paralegals.