ANALYSIS:Irish ratification of EU protocol means it is not easy to change law, writes Carol Coulter Legal Affairs Editor
THE LAW on double jeopardy, prohibiting a person being tried twice on the same crime, goes back to Roman times, and was considered a central part of common law in England from medieval times.
It was incorporated into US law at constitutional level, where the Fifth Amendment states: "Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." It also passed from common law into the Irish legal system.
In the US, it was intended to limit abuse by the government in repeated prosecution for the same offence as a means of harassment or oppression. It corresponds to the common law concept of res judicata in civil cases, which prevents courts from relitigating issues that have already been the subject of a final judgment.
However, it has come in for criticism in recent years, most notably in the UK, which in 2003 passed the Criminal Justice Act, modifying the rule.
This followed the murder of black teenager Stephen Lawrence, when the five suspects were arrested but were acquitted. Two were later convicted of another racist attack.
The MacPherson report into the crime, investigation and prosecution of the crime suggested double jeopardy should be abrogated where "fresh and viable" new evidence came to light.
Other countries have also been looking at the law. The point has been made that new technology, notably DNA analysis, enables evidence to come to light many years after a crime has been committed and a trial has taken place that can allow a person to be convicted - or, indeed, exonerated - when this would not have been possible at the time.
Under the 2003 UK Act, retrials are now allowed if there is "new" and "compelling" evidence for crimes including murder, manslaughter, kidnapping, rape, armed robbery and serious drug crimes. All cases must be approved by the director of public prosecutions and the court of appeal must agree to quash the original acquittal. The Minister for Justice indicated yesterday that he favours similar legislation here.
So far, only one person has been retried in the UK for a crime of which he was acquitted. William Dunlop was twice tried for the murder of Julie Hogg in 1989: the jury was divided once and he was then acquitted. Following a decision of the court of appeal he was retried, he lodged a guilty plea and was sentenced to life imprisonment, with a recommendation he serve no less than 17 years.
In the UK, therefore, the law is retrospective. A spokesman for the Minister for Justice indicated yesterday that he would like that to be a feature of the Irish law, but was awaiting the views of the Attorney General on its constitutionality. The UK does not have a written constitution and did not face this problem.
There is another hurdle. Article Four of the Seventh Protocol of the European Convention on Human Rights protects against double jeopardy. It states: "No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State."
This optional protocol has been ratified by all EU member states, including Ireland, except Belgium, Germany, Portugal, the Netherlands, Spain and the UK. Any change in Irish law would have to take account of this.
However, in many European countries, a prosecution appeal to a higher court is not regarded as double jeopardy but as a continuation of the same trial, and such an appeal would probably be permissible in the light of the inclusion of the word "finally".