It has long been recognised at common law that a trial held in the wrong location does not on that ground result in a verdict that can subsequently be the basis for a plea of previous acquittal or previous conviction: Smith v United States 21-1576, June 15, 2023. That common law dealt in the United States with the venue Clause, and this case deals with breach of the vicinage Clause.
If a trial is held without jurisdiction, there is no lawful determination of criminal culpability. Therefore, a subsequent trial, held lawfully, does not raise issues of double jeopardy. The usual rule is that a retrial is the remedy.
This is not to say that there are no difficult issues concerning whether a trial has been a nullity. There are dangers in making generalisations in the absence of factual contexts, as was observed in AJS v The Queen, noted here on 15 June 2007, and see Bounds v The Queen, noted here on 28 July 2006. Decisions of appellate courts grappling with the consequences of errors are often not unanimous (although Smith was a unanimous judgment, but Blueford v Arkansas, noted here on 26 May 2012, was not). The intention of the legislature in making a rule that has been broken should be determinative of the consequences: DPP v Penn (Virgin Islands), noted here on 13 May 2008. In Smith, breaches of the venue and vicinage clauses of the Constitution clearly pointed to nullity (although the Court did not use that word, instead putting the question as whether such breaches were exceptions to the rule that retrial is the appropriate remedy, and holding that, like the venue clause, the vicinage clause was not such an exception).
It may be possible for a defendant to waive a fundamental error at trial by knowingly acquiescing expressly or tacitly in the continuation of the trial: Ruddy v Procurator Fiscal [2006] UKPC D2 (Scotland), noted here 20 February 2006, while failure by a court official to sign an indictment has been held to result in a nullity: R v Clarke, noted here on 7 February 2008.
In Smith the result was plainly right: the appellant was asking the Court to hold that a conviction entered without jurisdiction could nevertheless support a plea of previous conviction.
Now, if you haven’t already done so, look up vicinage.
