an autonomous overseas dependent territory of the United Kingdom (the Monarch is the official Head of State), and follows the English legal system. The University of Kent Law School and the Bermuda College have forged a dynamic relationship, allowing Bermudian law students to obtain a Certificate in Law and Society and enter the second stage of

the LLB at Kent.

The principle of Double Jeopardy has been established in English common law and Bermudian law for centuries. Indeed, Blackstone in the 18th century set out the rule that ‘no man is to be brought into jeopardy of his life or limb more than once for the same offence’. This paper considers the application of the Double Jeopardy principle in Bermuda, arguing for its preservation despite recent calls for reform and contrary to recent changes in the United Kingdom.

The law in Bermuda

The justification of the Double Jeopardy rule has been called into question in Bermuda, most prominently with the case of Mundy v the Queen [1998] BDA LRA 24. In that case, Rebecca Middleton, a Canadian teenager holidaying in Bermuda, was found murdered. In Mundy, one of the defendants, Kirk Mundy, was allowed to plead guilty as an accessory to murder and jailed. The other defendant, Justis Smith, was ruled to have no case to answer. The effect of these decisions is that, under current Bermudian law, Mundy and Smith can never be prosecuted again for Middleton’s murder. Bermuda’s Director of Public

Prosecutions later declined to charge the men with a different offence, holding that ‘it is a well established rule of law that a man should not be punished twice for an offence arising out of the same or substantially the same set of facts’. Instituting fresh

proceedings against the defendants would infringe upon common law principles and the rights set out in Section 6(5) of the Bermuda Constitution, which states that no person should be subject to a retrial for the same offence or one that he could have been convicted of at the first trial. Lord Devlin, in the case of Connelly v DPP [1964] AC 1254, in explaining the judicial discretion that justifies Double Jeopardy, set out the argument that ultimately forms the crux of this paper: it is oppressive to charge a defendant under many separate indictments for offences related to the same set of facts.

The stance in England and Wales

Part 10 of the Criminal Justice Act 2003 introduced radical changes from the principles discussed above. Section 75(1) sets out that for certain cases, an acquittal can be quashed and a retrial ordered, subject to there being ‘new and compelling evidence which is relevant to the guilt of the acquitted person.’ Ian Dennis summarises the justification for amending the rule against Double Jeopardy, saying: ‘the emergence of significant new evidence of guilt calls into question the legitimacy of an acquittal.’ He argues that in pursuit of the interests of justice, the defendant should be investigated and, if necessary, the mistake should be rectified by way of a retrial. There are certainly proponents in Bermuda that support amending the law and adopting the English stance on Double Jeopardy. Indeed, a former Attorney General described the legal principle as ‘archaic’. However, Professor Dennis’ argument essentially gives no credence to the interests of the citizen defendant, speaking only to the interests of the state.

Justifying the principle’s preservation

In line with Section 6(5) of the Bermuda Constitution, Section 6(1) provides Bermudians with the right to a fair trial. This author argues that the State’s contention that it is so convinced of the defendant’s guilt that it demands a retrial would be unfairly prejudicial to the defendant and naturally violate Section 6(1). To this end, reversing Double Jeopardy would effectively eradicate the principle of the presumption of innocence, which is a core principle in English common law and codified by other legal systems (eg Article 6(2) of the European Convention of Human Rights states that anyone ‘charged with a criminal offence shall be presumed innocent until proved guilty according to law’). Lord Sankey in Woolmington v The Director of Public Prosecutions Respondent [1935] AC 462 argued that throughout ‘the web of the English Criminal Law, one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt…’ In light of ‘new and compelling evidence’ being adduced, the presumption of innocence will be negated by an instinctive assumption of guilt. While the jury still has work to do in considering the fresh evidence, reversing the rule against Double Jeopardy will reduce Lord Sankey’s famous reference to well-intentioned rhetoric, since in practice the presumption will count for nil. Furthermore, what are the parameters that constitute fresh and compelling evidence? The Criminal Justice Act 2003 is silent on this point. The Law Commission even noted that unless the ‘exception to the Double Jeopardy rule [was] clear cut and notorious, the potential lack of finality and the associated distress and anxiety would affect a [large] group of acquitted defendants’. The removal of the Double Jeopardy principle eliminates any degree of finality to a judicial ruling, rendering it ‘provisional pending discovery of new evidence’. This raises the issue of the State’s responsibility to ensure the liberty and autonomy of its citizens. Should not an individual acquitted of a crime, having resisted the force of the State and the incidence of public decree, be able to live a life where he does not have to constantly fear the backlash of the State? Does reversal of the Double Jeopardy rule abandon the State’s responsibility to afford its citizens liberty and autonomy? This author argues that the preservation of the Double Jeopardy principle is, ultimately, about legal certainty. Guilt and finality can never be clearly defined under these amendments, particularly given that the law is retrospective. This will only be the case ‘where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him liable’. Double Jeopardy is ingrained in the law, across numerous jurisdictions. To remove the bar against Double Jeopardy would be to give the prosecution a ‘second chance,’ and reward prosecutorial incompetence, thus challenging the very foundation of the prosecution as a representative entity of the State. Preservation of the rule will ensure the continuation of other core legal principles, such as legal certainty, the right to a fair trial and the presumption of innocence. While the United Kingdom has taken the radical step of allowing for a wide and undefined exception to the rule, the author argues that Bermuda should instead avoid oppression and preserve the principle of Double Jeopardy.

David A Amaro is the final year of a Senior Status Law LLB (Hons)