Double Jeopardy and Re-Trial of Serious Offences in English Law – Reporting Restrictions and Criminal Justice Act 2003

It is not in itself prejudicial for a jury to know that a matter before them has been tried before, but in the case of a retrial which has been ordered by the Court of Appeal under Part 10, it will be apparent that the Court of Appeal has quashed an acquittal and ordered a retrial because it was sufficiently impressed by the evidence. Therefore, reporting restrictions may be needed to prevent a future jury being aware of the reinvestigation and/or the application for an order quashing the acquittal and directing a retrial.

The court may apply restrictions where it appears to the court that “the inclusion of any matter in a publication would give rise to a substantial risk of prejudice to the administration of justice in a retrial“. The court may apply restrictions only if it considers it necessary to do so in the interests of justice section 82(3).

The restrictions may relate to “any matter” section 82(1).

“Publication” in section 82 covers any form of publication, including on the web, which is addressed to the public at large or any section of the public (with the exception of documents prepared for legal proceedings) section 82(11).

The restrictions may apply to re-publication of a matter which has already been published section 82(4).

Reporting restrictions may be applied by the court at any time after the re-investigation has commenced section 82(6). Before the application for a “section 77 order” has been made, the court may only do so on the application of the prosecutor. After the application has begun, the court may do so of its own volition or on application of the prosecutor.

The prosecutor may thus seek reporting restrictions at any time after the investigation of the qualifying offence has commenced (since the acquittal). The prosecutor should consider whether to ask the court for reporting restrictions when the case is put to the DPP for consent to carry out investigative steps, and again at each stage thereafter.

An application must be made in accordance with CPR Part 41.8.

An application by the DPP, under section 82 for restrictions on publication must be in Form RSO 4 and be served on the registrar and the acquitted person. The exception is where the application for reporting restrictions is not made as part of the application for a “section 77 order” and the DPP provides details of reasons why the acquitted person should not be notified on the application for reporting restrictions. In that event, the Court of Appeal may order that the acquitted person is not to be served with notice of the application for reporting restrictions CPR Part 41.8(2).

If the prosecutor seeks such restrictions and they are applied, the order applying the restrictions must specify when they cease to have effect section 82(8).

Once the notice of application has been given the restrictions will cease to have effect either when there is no longer any step that could be taken which would lead to a retrial or, if there is s retrial, at the end of the trial, unless the order specifies some earlier time section 82(9).

A court may vary or revoke reporting restrictions on its own motion or on application by a prosecutor, or by the acquitted person section 82(7). An application to vary or revoke an order for reporting restrictions may be made in writing by a party at any time after the order was made (rule 9(1)). A copy of the application to vary or revoke reporting restrictions shall be sent to all parties unless the application to vary or revoke is made by the DPP and before a notice of under section 76 has been given and the Court of Appeal has ordered that service on the acquitted person is not to be effected.