Retrial after invalid conviction is not double jeopardy: Smith v United States 21-1576, 15 June 2023

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.

The interests of justice and time limits for filing conviction appeals: Pierre v R (Bahamas) [2023] UKPC 15

Legislation that leaves judges to decide an issue “in the interests of justice”, without any indication of what that means, can leave us wondering if there is any law involved in the decision process.

An example is a decision whether to extent the period in which a person may file an appeal against conviction, so as to override a statutory limitation (often 20 working days) on that period.

In the absence of statutory guidance, beyond referring to “the interests of justice”, it is for judges to work out in case law what that means. To the extent that such case law actually assists in the decision process, the decision is a matter of law. Otherwise, it is just a policy decision, at risk of being arbitrary and not law at all, even though made by judges.

The Privy Council has recently addressed this decision: Pierre v R (Bahamas) [2023] UKPC 15 (11 May 2023).

The decision whether to grant an extension of the period within which an appeal against conviction may be filed is a balancing exercise [28]. It is characterised by flexibility [29]. The ultimate question, whether extension is in the interests of justice [26], requires consideration of the overall justice of the case, taking into account the important public interest in the finality of legal proceedings, the efficient use of judicial resources, good administration, the interests of other litigants, the interests of victims and their families, and the interests of witnesses [27]. An extension of time should be granted if the appeal may expose an injustice, and each application will turn on its own facts and circumstances as the discretion is unfettered and extremely wide, and the interests of justice may require departure from legislated time limits [30].

All these matters are nebulous and don’t help to clarify what the threshold is for granting an extension of time to file an appeal against conviction. It is trite and unhelpful to say each case turns on its own facts and circumstances. In adding the various considerations to the interests of justice, the Board seems to have redefined what the interests of justice means, but without setting out that new meaning.

The expression “in the interests of justice” usually means in the interests of correctly deciding an issue according to law. The issue here is the conviction and its correctness in law. All that should matter when deciding whether an appeal should be heard is whether there is a reasonable prospect that the appeal will be successful. There are questions subsidiary to that, such as whether the arguments proposed to be advanced have previously been determined correctly, whether a legal point was overlooked or wrongly decided in the earlier proceedings, and whether any new evidence could cast doubt on the conviction.

It might be useful to look at legislation governing when a criminal cases review commission can refer a conviction to an appeal court. If such a reference is made, the appeal court must hear the appeal. Legislation may state that the governing criterion for the commission’s decision is the interests of justice, and specify some matters that must be taken into account.

An illustration is New Zealand’s Criminal Cases Review Commission Act 2019, s 17. The matters listed in s 17(2)(a)-(c) are helpful, but the addition of (d) “any other matter that the Commission considers relevant”, while serving as a sort of safety net to avoid excluding meritorious references arising from circumstances that can’t be predicted, could potentially have the unfortunate effect of allowing the Commission to refuse to refer a case on grounds that extend the meaning of “the interests of justice” to include the dreadful inertia of the justice system (the so-called interest in the finality of judicial proceedings), an apologetic reference to the inconvenience of diverting resources to the issue, and a simpering solicitousness for the supposed interests of victims and prosecution witnesses.