Justice for Victims initiative poses a challenge to the law on double jeopardy

The Minister for Justice announced yesterday a ‘major new’ Justice for Victims initiative. The announcement caused a furore in the Dáil because the press conference clashed with a scheduled debate on the renewal of the Offences against the State Act. Fine Gael claimed that the Minister was trying to ‘dodge’ the debate and was setting out a victims initiative at the same time as planning to reject its proposed legislation on victims due for debate next week. The timing of the announcement was clearly inadvisable and the opposition repeatedly accused the Minister of “arrogance” and “contempt for the house”.

The initiative, however, raises some fundamental concerns regarding the substance of the measures. The Minister announced that there would be legislation introduced in 2009 which would:
Reform the victim impact statement mechanism in order to give victim status to next of kin in homicide cases.
Introduce new mechanisms to deal with an acquittal where compelling evidence of guilt emerges after the acquittal
Allow cases to be re-opened where an acquittal arises from an error in law by a Judge.
Provide for new prosecutions where there is evidence that the original acquittal was tainted by interference with the trial process.
Introduce measures to restrict unjustified and vexatious imputations at trial against the character of a deceased or incapacitated victim or witness.

The Irish Council for Civil Liberties immediately responded to the initiative stating that victims rights would be not be strengthened by removing the rights of the accused, noting that it recently proposed a Charter of Rights for the Victims of Crime, based on human rights principles.

The government’s provisions relating to the re-opening of cases could undermine the fundamental principle of double jeopardy preventing a person being tried for the same crime twice. The double jeopardy principle is meant to ensure that prosecution is not used by government to harass or oppress people and ensure finality in the criminal justice process. It is enshrined in many human rights documents including the UN International Covenant on Civil and Political Rights (Article 14(7)) and the Seventh Protocol of the European Convention on Human Rights which states

“No one shall be liable for 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 provision may cause problems for the government’s proposals as Ireland has ratified the protocol and will at the very least need to be taken into account in the drafting of the provisions.