Commentary on Sections Part 10: Retrial for Serious Offences Section 75: Cases that may be retried
310.Section 75 sets out the cases which may be retried under the exception to the normal rule against double jeopardy. These cases all involve serious offences which in the main carry a maximum sentence of life imprisonment, and which are considered to have a particularly serious impact either on the victim or on society more generally. The offences to which the provisions apply are called “qualifying offences”, and are listed in Schedule 5 to the Act.
311.The cases which may be re-tried are those in which a person has been acquitted of one of the qualifying offences, either on indictment or following an appeal, or of a lesser qualifying offence of which he could have been convicted at that time. This takes into account cases of “implied acquittals”, in which, under the current law, an acquittal would have prevented a further prosecution being brought for a lower level offence on the same facts. For example, an acquittal for murder may also imply an acquittal for the lower level offence of manslaughter, but new evidence may then come to light which would support a charge of manslaughter. A person may only be re-tried in respect of a qualifying offence.
312.In certain circumstances cases may also be tried where an acquittal for an offence has taken place abroad, so long as the alleged offence also amounted to a qualifying offence and could have been charged as such in the UK. This would include for example offences such as War Crimes, and murder committed outside the UK, for which the courts in England and Wales have jurisdiction over British citizens abroad. Such cases are likely to be rare. Subsection (5) recognises that offences may not be described in exactly the same way in the legislation of other jurisdictions.
313.The law in Scotland is not being changed in this respect at present, so this Part of the Act is not applied to acquittals which take place in Scotland.