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Skip to content Study with The Open University. Search for free courses, interactives, videos and more! Free Learning from The Open University. Featured content. Free courses. All content. What is Double Jeopardy? Updated Friday, 30th August Activity Level: 1 Introductory. Copyright: The Open University. What's your verdict? Follow our fictional case and see if you can make judgements based on the facts as they are presented to you Take part now What's your verdict?
Copyright: forance. Copyright: olegdudko. Free courses: Used with permission. Used with permission. Become an OU student. Copyright information. Publication details Originally published : Friday, 30th August Be the first to post a comment Leave a comment.
Sign in or create your OpenLearn account to join the discussion. Feeds If you enjoyed this, why not follow a feed to find out when we have new things like it? Related content tags. Related content. Have a question? More like this. Newsletter Sign up for our regular newsletter to get updates about our new free courses, interactives, videos and topical content on OpenLearn. OpenLearn Search website Back to top. The acquitted person may not have been arrested as part of the investigation because none of the investigative steps in section 85 3 were necessary.
However, if the police obtain new evidence by carrying out other investigative steps, the new evidence may prompt a request for the DPP's consent to an application under section 76 an application for a retrial - Archbold In these circumstances a summons is sought from the Crown Court section 89 3 a when the prosecutor gives notice of an application to the Court of Appeal.
The summons would require the acquitted person to appear before the Court of Appeal at the hearing of the application under section Given that in this scenario, the police have not thought it necessary to arrest the acquitted person, the Crown should seek a summons rather than a warrant for the arrest of the acquitted person, unless there are circumstances which justify a warrant. If a summons has been issued but, for any reason, it is subsequently thought that a warrant is needed, for example where it is likely that the acquitted person may abscond, the prosecutor may apply for a warrant section 89 3 b.
Annex C provides a step by step procedural guide in relation to bail and custody after the notice has been served where there has not been an arrest.
This should be read with part 10 of this guidance below. Section 88 governs charging, bail and custody before an application to the Court of Appeal is made for a "section 77 order" Archbold d. It envisages that the acquitted person has been charged by the police and either bailed to the Crown Court, or kept in custody. If an acquitted person is charged by the police under section 88 and either kept in police custody or local authority accommodation, or granted bail, he or she must be brought before the Crown Court as soon as practicable, and in any event not more than 24 hours after charge, or bailed by the police to attend the Crown Court within 24 hours includes Saturday.
Therefore, it must be clear from the file precisely when the suspect was charged, and close liaison is needed between the police and the prosecutor.
The expectation is that the timing of an arrest can be considered and avoid the need for a hearing on a Saturday. However, where this is unavoidable, the magistrates' court will have contact details for the appropriate crown court officer. If the acquitted person appears at the Crown Court before the application has been served the prosecution has 42 days from that appearance to serve notice of application on the Court of Appeal.
The Crown Court may extend the day period if there is good and sufficient cause and the prosecutor has acted with all due diligence and expedition. If the acquitted person has been charged by the police and notice of application has been served on him, the Crown Court may bail him to appear before the Court of Appeal on the date on which the application is to be heard section 88 4 a.
If the notice of application has not been served, the Crown Court may remand the acquitted person in custody, to be brought before the Crown Court, as soon as practicable and, in any event within 48 hours after the notice is given. An application under section 76 is an application by the prosecutor to the Court of Appeal for "a section 77 order".
Where the acquittal was an acquittal in England and Wales, the application is made under section 76 1. Only one application is permitted in respect of an acquittal of a qualifying offence.
Thus the prosecutor may appeal the decision of the Court of Appeal, but may not make a second application. The DPP will only consent if, in addition, it seems probable that the Court of Appeal will find it in the interests of justice under section 79 for "a section 77 order" to be made. Consent needs to be given personally by the DPP with one exception see paragraph below.
There are two basic steps at this stage. The first is a filter, which entails establishing whether Part 10 applies at all. The second step is an application of judgement as to whether the case meets the requirements of section s 78 and That assessment will result in a recommendation to the DPP. The final decisions rests with the DPP. This is because the Court of Appeal must make "a section 77 order" if satisfied that the requirements of sections 78 and 79 are met.
Otherwise it must dismiss the application or, where the acquittal was obtained abroad, declare that it is a bar to further prosecution. Section 78 is satisfied if "there is new and compelling evidence against the acquitted person in relation to the qualifying offence" Archbold Section 78 2 states that evidence is "new" if "it was not adduced in the proceedings in which the person was acquitted nor, if those were appeal proceedings, in earlier proceedings to which the appeal related.
The DPP has decided that evidence which was not adduced at the original trial for tactical reasons, is not to be treated as "new" evidence. Evidence may have been inadmissible, or admissible but not admitted as a result of a ruling by the judge at the original trial, but admissible at any retrial because of a change in the rules on admissibility since the original proceedings.
In terms of section 78 2 this is "new" evidence. However, the consent of the DPP may only be given where the new evidence is compelling, which means reliable, substantial, and in the context of the outstanding issues, it appears highly probative of the case against the acquitted person section 78 3. The DPP has agreed that if his consent is sought to an application to the Court of Appeal where the evidence was available but not admissible or admitted at the original trial and not withheld for tactical reasons then its probative value will be assessed in accordance with the standard laid down in section The question arises as to the appropriate approach in relation to evidence which could, with reasonable diligence, have been discovered at the time of the original proceedings.
It is appropriate, when assessing whether section 76 4 is satisfied, to also consider whether the Court of Appeal is likely to make the order sought. The Court of Appeal will take any failure into account under section 79 2 c and d. The DPP has agreed that any failure to act with due diligence will be part of the public interest test which he has to apply, in accordance with section 76 4 b. Evidence which was not available or which was available but without probative value is the kind of evidence for which the legislation was designed and there is no policy reason that it should not be considered in accordance with sections 76 and Examples include a highly cogent witness statement, a highly credible confession, or evidence which was available at the time but of which the relevance has only come to light, as a result of developments in forensic science.
Section 78 3 states that evidence is "compelling" if it is a reliable, b substantial, and c in the context of the issues in dispute at the trial, it appears highly probative of the prosecution case against the acquitted person. Thus, if in a rape trial identity was in issue, then the new evidence as to identity could potentially be compelling. If, on the other hand, the issue at trial was consent and not identity, then the new evidence as to identity could not be "compelling". For example, if the acquitted person was acquitted of arson endangering life, and at trial he had accepted that he was present but denied participation, CCTV evidence cannot be compelling if all it goes to prove is that the person was present.
By contrast, if the CCTV evidence is of such a quality that it is "highly probative" as to the person's role, it could potentially be "compelling". The reason behind this approach is not to consider how strong the original case now is with the enhancement of the new evidence but to enable a case to be reopened when the evidence comes to light which is itself so apparently compelling that the court hearing the application is driven to the conclusion that at that stage the evidence is highly probative of the prosecution case against the acquitted person.
The probative value of the new evidence in each case is to be assessed on its own merits. The DPP has agreed that he would only want to proceed in cases in which, as a result of the new evidence a conviction is highly probable, either by a plea of guilty or by the verdict of the jury and any acquittal by a jury would appear to be perverse. This is consistent with the requirement of high probative value of the item of evidence specified in section 78 3 c.
In the case of R v Miell [] 1 WLR , the Court of Appeal ruled that where an application under section 76 for the quashing of an acquittal and an order for a retrial was based on the defendant's plea of guilty to perjury in respect of his evidence at the original trial in which he had denied the offence, it was for the CA to form its own view as to whether the fresh evidence was "compelling" within section 78 i.
The fact that if the application were granted, the conviction for perjury would be admissible at the retrial and that proof of the conviction should be taken to be proof of the defendant's guilt unless he proved the contrary under section 74 of PACE , did not absolve the court at the stage of an application for a retrial from forming its own assessment.
Where the new confession evidence contained demonstrable untruths and had subsequently been retracted, the evidence did not meet the test. This was especially because the original jury had acquitted despite the evidence of a confession made after the offence, which on its face was more credible than the new confession evidence, as there had been no demonstrable untruths contained therein.
The DPP must consider the public interest in deciding whether or not to make an application to the Court of Appeal to quash an acquittal. An application will usually take place so long as the other conditions are satisfied unless there are public interest factors tending against an application which clearly outweigh those factors tending in favour.
The DPP acts on behalf of the public and not just in the interests of a particular individual. However, the DPP should take into account the consequences for the victim of whether or not to make an application to the Court of Appeal, and any views expressed by the victim or the victim's family.
Section 79 2 Archbold states that the Court of Appeal is to reach its decision having regard in particular to:. Failing to exclude evidence which the police could reasonably have found during the original investigation might be seen as an incentive to poor investigations. To safeguard against this, section 79 2 provides a specific element of due diligence into the 'interests of justice' test the Court of Appeal must apply in considering applications for a retrial.
No court would allow the prosecution a second chance of prosecuting a person to make up for the incompetence of the prosecution police and prosecutor. The DPP has agreed he will only consent to an application for a reinvestigation or an application to the Court of Appeal to quash the acquittal where the prosecution comes to the process with 'clean hands'.
Therefore, the DPP will consider any failure to act with due diligence to be part of the public interest test which he has to apply, in accordance with section 76 4 b. The recommendation should also address the question of whether, and if so when, reporting restrictions will need to be applied for or varied. If the original offence was one for which the Attorney General's consent was needed to commence a prosecution, then the DPP will consult with the Attorney before the DPP gives his consent to an application to the Court of Appeal.
This is to ensure that the Attorney General is advised of the case and kept informed of progress. The Attorney General's consent having been given once is not required a second time. If the DPP approves the case as being one where it is appropriate for an application to the Court of Appeal to be made, then the procedure should be followed as laid down in section 80 and the Rules of Court.
The Court of Appeal can only make an order to quash an acquittal and order a retrial if it is satisfied that there is both new and compelling evidence and that it is in the interests of justice.
The prosecutor who wishes to make an application under section 76 1 or section 76 2 must give notice of the application to the Court of Appeal section 80 1 Archbold The prosecutor shall send with the notice to the registrar and the acquitted person, where practicable, the following documents:.
The prosecutor must give notice to the acquitted person of the application within two calendar days including the day the notice is given to the Court of Appeal. If the person on whom notice is to be served is outside the UK, the prosecutor should apply to the Court of Appeal for an extension of the period for service in Form RSO 1.
Where the acquitted person is in the UK, the notice of application must either be served personally on the AP or on his solicitor within the two-day period, or the notice of application must be left at the acquitted person's known or last known address or place of business or his solicitors address, or, if willing to accept service by fax or by electronic means, on the same day as the notice is served on the Court of Appeal because service, in the above circumstances, is effected on the next business day after the day on which it is left.
This means that service on an address, or if agreed by fax or electronic means, must only take place Monday-Thursday. The notice must charge the acquitted person with the offence, if the person has not already been charged by the police under section 87 4. If the person has already been charged under section 87 4 , the notice must say so.
If the prosecutor intends to ask the Court of Appeal to make an order under section 80 6 for the production of any document, or other thing or for the attendance of a witness, at the section 76 hearing, then this should be specified in Form RSO 1.
The prosecutor must, as soon as practicable after service of the notice on the acquitted person, serve on the registrar a witness statement or certificate of service which exhibits a copy of the notice CPR Part The prosecutor should review the reporting restrictions in place if any and consider whether an application for such an order, or for an existing order to be varied or revoked, should be made see section 17 below for the test the court will apply in deciding whether to order reporting restrictions.
The prosecutor should consult the Senior Investigative Officer when considering this issue. If reporting restrictions are applied, unless an earlier time is specified in the order applying the restrictions, then they may be applied until the end of the retrial or until it becomes clear that the acquitted person can no longer be retried.
If the acquitted person chooses to oppose the application under section 76, he or he must serve on the registrar and the prosecutor a response in Form RSO 2 not more than 28 days after receiving the notice of the section 76 application. This time period may be extended on application to the Court of Appeal.
A single judge or the registrar, can hear the application to extend the time period. If the acquitted person intends to ask the Court of Appeal to make an order under section 80 6 for the production of any document, or other thing or for the attendance of a witness, at a section 76 hearing, then this must be stated on Form RSO 2.
If the application to extend time was heard by a single judge or registrar, and refused, that decision can be appealed to the full Court of Appeal if from the single judge and to the single judge if from the registrar by serving Form RSO 5. See CPR Part Before the section 76 hearing a party to the application may apply for an order under section 80 6 for the production of any document or other thing, or for the attendance of a witness in accordance with CPR Part This should be on Form RSO 3.
An acquitted person may at this point be charged and in custody under section 88 4 b , charged and bailed by the Crown Court under section 88 4 a , or not charged and at large. If the acquitted person has been charged, remanded in custody under section 88 4 b and the notice of application is served on the accused, he or she must be brought before the Crown Court as soon as is practicable, and in any event within 48 hours after the notice is given section 89 2.
The Crown Court must then either remand the accused in custody to be brought before the Court of Appeal for the hearing of the application, or bail him or her to appear before the Court of Appeal at the hearing of the application.
If bail is granted, the court still has power to revoke that bail section 89 8 Archbold If the acquitted person is at large then the prosecutor should serve the section 76 application on the Court of Appeal and on the acquitted person and apply to the Crown court for the issue of a summons section 89 3 a or for a warrant for the person's arrest section 89 3 b.
The purpose of the summons is to bring the acquitted person before the Court of Appeal at the hearing of the application. A summons is the more likely way of proceeding at this point. If a warrant is issued under section 89 3 b and executed the acquitted person must be brought before the Crown court as soon as practicable and in any event within 48 hours after the arrest section 89 6.
When the person is brought before the Crown Court, whether as a result of section 89 2 or section 89 6 , the court must then either remand the accused in custody to be brought before the Court of Appeal for the hearing of the application section 89 7 a , or bail him or her to appear before the Court of Appeal at the hearing of the application section 89 7 b.
Even though a summons is issued, the prosecutor may apply for a warrant of arrest subsequently section 89 3. The prosecutor may abandon "a section 76 application" before the hearing of the application by serving notice in Form RSO 7 on the registrar and the acquitted person CPR Part The acquitted person is entitled to be present at the hearing of the application except when in lawful custody elsewhere than in England, Wales or Northern Ireland , and to be represented.
Where the acquitted person is held in Scotland, the Scottish authorities should be consulted about producing the person in court, as the consent of the Scottish Executive Ministers is required in these cases.
If the court finds that sections 78 and 79 are satisfied, it must make an order quashing the acquittal and directing a retrial. The prosecutor has the right of appeal against the Court of Appeal's determination, with leave of the Court of Appeal or the Supreme Court, as does the acquitted person, see section Leave will only be given where the court certifies that a point of law of general public importance is involved in the decision and it appears that the point is one which ought to be considered by that House.
The application must be made within 14 days Criminal Appeal Act , section If the court does not make a "section 77 order" sought it must dismiss the application, and the suspect will then be released from custody or from any duty to appear before the court. If the prosecutor is minded to appeal the Court of Appeal's decision, he or she should seek leave to appeal or give notice that the prosecution intends to seek leave to appeal. If the acquitted person is detained pending the appeal, section 38 of the Criminal Appeal Act applies: the acquitted person is not entitled to be present at the hearing of the appeal without the leave of the court section 81 5.
Once the application has started to be heard by the Court of Appeal, section 90 applies. If the court adjourns the hearing it may remand the person on bail or in custody section 90 1. If the court makes a "section 77 order" quashing the acquittal and directing a retrial, or a declaration that the acquittal is no bar to prosecution, it may make such arrangement as it thinks fit as regards remanding the accused person on bail or in custody until the date of the trial section 90 2.
Similarly, if the court dismisses the prosecution's application, or makes a declaration that the foreign acquittal is a bar to prosecution, and either the prosecution has notified the court that it intends to seek leave to appeal, or the court has granted leave to the prosecution to appeal, the court may make such arrangement as it thinks fit as regards remanding the accused person on bail or in custody until the leave or appeal process terminates.
Note, however, that although section 90 2 is expressed in terms of an unlimited discretion, the Court of Appeal's discretion is not unlimited. CPR Part Section 91 deals with the consequences of a revocation of bail where the bailed person is not before the court.
Where a court revokes bail and that person is not before the court when bail is revoked, the court must order him to surrender forthwith. A constable may arrest a person for failing to surrender without reasonable cause in accordance with the order. A person arrested on warrant must be brought as soon as practicable, and in any event, not more than 24 hours after he is arrested, before the Crown Court including Saturdays.
The charge is framed, as it would have been under the law as it stood at the time of the alleged offence. Repeated confessions At the original trial, Turnbaugh's defense team, lawyers Kurt Hughes and Frank Twarog, argued that he took responsibility for the crime because he was mentally ill, and not because he was actually involved.
You've got to live with the outcome. Sorrell said the prosecution did a good job of presenting the evidence provided by the Vermont State Police. Police could complete no ballistics testing because the bullet that killed Lyons was never found.
Hughes and Twarog were able to raise enough reasonable doubt for acquittal, Sorrell said. Turnbaugh's lawyers said his history of mental illness was the type in which he may make false self-incriminating statements, the Free Press reported. He was smoking pot, had mushrooms and mental illness. Tim Bombardier, who was a Vermont State Police Detective during the original trial, said he remained convinced of Turnbaugh's guilt even after the acquittal, the Free Press reported.
After Turnbaugh's arraignment for the July incident, he was sent to the Vermont State Hospital, where he is currently undergoing a mental-health evaluation. IE 11 is not supported.
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