Double Jepordy or Double Stupidity: Indo and Ahern

pirelli

Double Jeopardy:

Double Jeopardy laws are essential for any society that wants to function properly. One could argue that murder is such a terrible crime that it is justified. Well what is murder and what is manslaughter.

Murder and manslaughter are all to often committed in circumstances that makes a distinction difficult for the Jury. If we remove double jeopardy then you can be certain that every homocide tried in court will be a murder trial. This can only lead to many miscarriages of Justice.*

Double Jeopardy as it stands in Britain:
In Britian where reform has been made to double jeopardy a defendant who has been convicted of an offence can be tried for an aggravated form of that offence if the facts constituting the aggravation have arisen after the first conviction. By contrast, a person who has been acquitted of a lesser offence may not be tried for an aggravated form even if the new evidence becomes available. I.e if you were tried for manslaughter and aquited then you can't later be tried for Murder.

*
This is a mitigating factor for the prosecution to seek a Murder conviction that has nothing to do with the Justice or the accuseds criminal act that is being prosecuted.


I am against removing the rule of Double Jeopardy although I would extend the time "open" for the DPP to appeal a verdict and allow them to re-investigate a case with a view to a re-trial only for the same charge. i.e not a lesser charge or a more serious charge and there would have to very signifigant and as to why something was "un-investigated" which would in fact that would not be a sufficent reason unless the people behind those errors were serverly disciplined and huge admissions made by the minister for justice and perhaps even a resignation or There would have to be some very serious foul by the defence.

Incidently Serious questions must now be asked of: Dermot Ahern and the irish media that writ the Article in the National Newspapers.

Fact: Ireland has ratified a protocol that was "Optional" at the time. The principle of double jeopardy is enshrined in Article 50 of the EU Charter of Fundamental Rights.

Therfore:

A)
Is Dermot Ahern being fanciful and vying for attention amongst the more intelligent and knowledgable elite in ireland as a witty politician who despite not understanding the Lisbon Treaty does understand that by double pyschology he is saying No to the Lisbon treaty and opting to leave the EU altogether ( on behalf of the begrudgers and low-lives.) ?


Or is the Irish Independent Security Editor putting a spin on the facts?


C)
Or Have they even read the EU charter?


Note: Either way I wouldn't put my life in their hands.




The protocol
All members of the Council of Europe (which includes nearly all European countries, and every member of the European Union) have signed the European Convention of Human Rights, which protects against double jeopardy. The Seventh Protocol, Article Four, says:

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 specific optional protocol has been ratified by all EU states except five (namely Belgium, Germany, The Netherlands, Spain and the United Kingdom)Those members states may still have the provision in their respective constitutions providing a prohibition against double jeopardy.

In many European countries the prosecution may appeal an acquittal to a higher court (similar to the provisions of Canadian law) - this is not counted as double jeopardy but as a continuation of the same trial. This is allowed by the European Convention of Human Rights - note the word finally in the above quote. DUH!

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johnnyskeleton

pirelli wrote: »

Double Jepordy laws are essential for any society that wants to function properly.

There is another thread on this by the way.

pirelli wrote: »

Murder and manslaughter are all to often committed in circumstances that makes a distinction difficult for the Jury. If we remove double jepordy then you can be certain that every homocide tried in court will be a murder trial. This can only lead to many miscarriages of Justice.*

1) I think juries are well capable of distinguishing between murder and manslaughter.
2) I don't agree that every homocide will be a murder trial, because the DPP still retains his discretion as to what offences to charge. Put another way, there is no reason why every homocide cannot now be charged as murder, but yet they are not all so.
3) How would every homocide charge being tried as murder lead to many miscarriages of justice?

pirelli wrote: »

Double Jepordy as it stands in Britain:
... By contrast, a person who has been acquitted of a lesser offence may not be tried for an aggravated form even if the new evidence becomes available. I.e if you were tried for manslaughter and aquited then you can't later be tried for Murder.

Do you have any case law on this point?

pirelli wrote: »

I am against Double Jepordy

I thought you said it was essential for any society that wants to function properly.

pirelli wrote: »

although I would extend the time "open" for the DPP to appeal a verdict and allow them to re-investigate a case with a view to a re-trial only for the same charge.

1) the DPP cannot appeal a verdict with a view to a re-trial
2) there are no time limits on the investigation of serious offences (other than where there is an allegation of prosecutorial delay).

pirelli wrote: »

Fact: Ireland has ratified a protocol that was "Optional" at the time. The principle of double jepordy is enshrined in Article 50 of the EU Charter of Fundamental Rights.

As you say yourself, that protocol relates to a final acquittal, and is further qualified by "in accordance with the law and penal procedure of the State".

Despite the spin given by the papers, this is not the abolision of the double jeopardy rule, but rather inroads into it. I would be in favour these inroads because:
1) they will rarely be used
2) in the cases where they are used, it will only be where it is obvious that a re-trial should take place, in the interests of justice.

pirelli

johnnyskeleton wrote: »

There is another thread on this by the way.

Thanks
There might be somewhere I will have a gander.

johnnyskeleton 1) I think juries are well capable of distinguishing between murder and manslaughter.
2) I don't agree that every homocide will be a murder trial, because the DPP still retains his discretion as to what offences to charge. Put another way, there is no reason why every homocide cannot now be charged as murder, but yet they are not all so.
3) How would every homocide charge being tried as murder lead to many miscarriages of justice?

There an incalcuable many ways this could happen, particuarly against whom persons the DPP,Media and gardai treat in their view as "gangsters". I gave a good example earlier but deleted it by accident. I will try again later.

Do you have any case law on this point?

Connelly v DPP ([1964] AC 1254

I am against Double Jeopardy

I thought you said it was essential for any society that wants to function properly.

I am against double Jeopardy , Similar to The common law rule which is also against double jeopardy.

I.E
The rule against double jeopardy. I like the rule, I think it's ok. It means that someone that was innocent and was brought to trial and miraculously wasn't convicted on some circumstantial evidence can get on with their life.

Basically if your aquitted of the charge of rape then the rule against double jeopardy guarantees your not a rapist for the rest of your life and also prevents blackmail and libel. Even guilty people get convictions are spent in Ireland after a period of time.

Aquitted people after a trial are going to be innocent more times than not and if you disagree with this statement then consider the notion of presumed innocent.

Ireland can assume if your the accussed your defintely guilty becuase if aquitted your probably guilty anyway. So everybody is going to get convicted because even if your aquitted your probably more than likely guilty statistically otherwise why change the legislation.

1) the DPP cannot appeal a verdict with a view to a re-trial
2) there are no time limits on the investigation of serious offences (other than where there is an allegation of prosecutorial delay).

Never said there was a time limit in relation to prosecuting cases by gardai. I understand the meaning of indictable.


I was suggesting that on the topic of double jeopardy I would not be against allowing a re-trial in extremely exceptional circumstances although only as part of an ongoing trial and before finality, i.e an immediate appeal and prompt investigation and only with disciplinary penalties for the persons (Gardai , DPP ) that caused the re-trial.

Presently the DPP can appeal leinency and I wish to extend the time so as to include an investigation, only in extremely exceptional circumstances, by the DPP against an aquittal only while all parties are still in the courtroom. There would have to be an admission by the Minister for justice that they made a terrible mistake and discipline the persons involved. It would have to be extremely exceptional and compelling evidence would not be an acceptable reason after the verdict, it would have to be something very serious like a serious jury tampering etc.

It would have to be in line with the rule against double jeopardy. The omagh bombings were such an example where I propose a new law where public pressure could force an investigation - despite the police fearing such an investigation- leading to disciplinary penalities. This might not lead to a re-trial but it would force an investigation and possibly could lead to a re-trial before finality of the aquittal if the police were to have tainted the proceedings.

As you say yourself, that protocol relates to a final acquittal, and is further qualified by "in accordance with the law and penal procedure of the State".

Despite the spin given by the papers, this is not the abolision of the double jeopardy rule, but rather inroads into it. I would be in favour these inroads because:
1) they will rarely be used
2) in the cases where they are used, it will only be where it is obvious that a re-trial should take place, in the interests of justice.

The papers did spin it by suggesting that we could re open cases. Unsolved cases never close and therefore this is an empty promise. As for at anytime re-opening a case against someone that has been aquitted might be possible in Britain but it would not be possible in ireland due to the seventh protocol.

By all means I hope the Minister and the Irish Independent open old cases and investigate them, but they are creating their own Lisbon Treaty by giving the impression that they need new legislation to investigate open/closed cases. Perhaps it was just a poor choice of words by the irish independent but those Cases do not close they stay OPEN for ever. They have had success with the horrific Murder of Brian McGrath and they now have the evidence to prosecute. These are the types of cases that the Minister should be legislating for a special squad to investigate.



Criminal Justice Act 2003

Application for retrial

76. Application to Court of Appeal

4.
c) any trial pursuant to an order on the application would not be inconsistent with obligations of the United Kingdom under Article 31 or 34 of the Treaty on European Union relating to the principle of ne bis in idem.


As we are aware Ciaran Cuffe in 2006 suggested that we consider drafting new legislation after the law reform made a similar recommendation. The British have already done so and ( as above) they would like their laws to oblige the the treaty of Europe.

However Britian Never ratified The Seventh Protocol, Article Four, and I am unaware now what obligation Britain owes the treaty of the european union. Ireland however did ratify the Seventh protocol, Article four which binds it to the rule against double jeopardy.

All the laws mentioned in the irish independent regarding double jepordy mirror the New british legislation almost word for word. The Irish independent even goes as far as to re open cases which can only mean re visit men and women aquitted of serious charges at anytime to appeal for their re-trial. This is surely double jeopardy. They must mean before finality which basically means directly after trial. Perhaps they could re introduce new evidence during a trial and have a new trial if it is compelling.

However it seems very unprofessional to wait until after a trial to suddenly introduce new evidence which would be so very unlikely as it would be within a small time frame before the window for appeals closes and the verdict is an finality and the seventh protocol kicks in. When a trial is over people are not looking for new evidence, unless Garda Tom remembers he left the murder weapon or the DPP remembers where they left the lab results.

The only other scenario would be a feller on the other side of the world who reads about it in the newspaper and rushes back to ireland to testify but ryanair delayed his flight and they would have to have a re-trial. Its possible but he couldn't the feller just phone the gardai and they could adjourn the trial or something.

As long as it is not solving crimes I suppose it wpuld probably seem like a good idea for the Justice dept. The law reform commission has numerous recommendations as they keep abreast of international laws but I dont see why the Justice dept even considers removing double jeopardy, they should be instead investing in the crime lab.The are building something and should focus on that.