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This question is about Double Jeopardy in the United Kingdom, focusing on the England and Wales jurisdiction.

Pretend the defendant commits a sexual crime in Spain, where one of the following happens:

  1. They are not reported to the police, and the statute of limitations expires.

  2. They are reported to the police, but the statute of limitations expires.

  3. They are reported to the police, go to court but the statute of limitations expired.

  4. Something else (no idea) but the statute of limitations has expired...

In the above scenarios, assume no further tolling is allowed, so the statute of limitations has expired and the crime is no longer punishable in Spain.

The defendant has escaped prosecution. However, this sexual offence committed abroad can be prosecuted in the United Kingdom. Is this still possible due to Double Jeopardy rules?

My understanding of Double Jeopardy from here is in this paragraph below:

  1. A person may not be tried for a crime for which s/he has previously been acquitted or convicted, or in respect of which s/he could, on the same previous indictment/summons have been lawfully convicted, where the offence charged in the second indictment/summons was committed at the time of the first charge1. This means that the principle is strictly applicable only where the same offence in fact and in law is alleged in the second indictment2. In this situation the defendant enters a plea of 'autrefois acquit' (if s/he was acquitted in the first prosecution) or 'autrefois convict' (if s/he was convicted). If the court rules that the plea is correct, the indictment or charge is invalid and is dismissed3.

My interpretation of the above non-bold text seems to be that someone found innocent, or guilty, cannot be tried again in the UK. The bold text seems to cover scenarios where the offender has never even been to court or a police station, but had (or should) they go, then in respect of [the statute of limitations] could be found not guilty.

I think the answer for my earlier question of whether the defendant can be prosecuted in the UK for what they did abroad in Spain is a NO. However, since Double Jeopardy in the UK seems to have been partially abolished in 2003, I was looking for confirmation.

Edit: Assume the offender is now living in the UK (England), with no intentions of returning to Spain. Furthermore, during his crime he both the UK and Spain were part of the EU, assume it happened in 2008. They have not yet been arrested but will in the foreseeable future.

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    I don't know about the UK specifically, but in many jurisdictions, "double jeopardy" is held to only apply to two prosecutions by the same sovereign government. For instance, the European Convention on Human Rights makes this explicit. This is especially notable in the US, where state and federal governments are considered separate sovereigns for this purpose; so a person can be tried on federal charges after being acquitted in state court, or vice versa. Sep 5, 2023 at 20:16
  • That is absolutely terrifying. It also says: "However, it does not apply to prosecutions by two different sovereigns (unless the relevant extradition treaty expresses a prohibition)." So even though extradition has nothing to do with the price of tea in China, just refuse to allow UK authorities to prosecute offender due to Double Jeopardy which is applicable as an off-topic extradition is not allowed? Sep 5, 2023 at 20:30
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    The continuation of the sentence after the bold text suggests it refers to a second offence committed at the time of the first offence going to court (which could have been tried at the time), not where the first offence never went to court. If the first offence never went to court, they were neither convicted nor acquitted. Sep 5, 2023 at 21:51
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    UK does not have a general statue of limitations. That in Spain applies to prosecutions in Spain. Sep 5, 2023 at 22:00
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    "Double jeopardy" means quite literally that you were twice in jeopardy of being convicted or not, depending on your guilt. If the statute of limitation has run out in one place, then you were never in jeopardy of being convicted, therefore no double jeopardy. (In the USA they had another case where someone bribed the judge - he was therefore not in jeopardy of being convicted, and could be taken to court again.
    – gnasher729
    Sep 5, 2023 at 22:51

3 Answers 3

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Q: Is this still possible due to Double Jeopardy rules?

A: No

The Double Jeopardy rules do not apply in this scenario because the suspect has not been acquitted of an offence in England and Wales so it is an impossibility to try them twice.

See section 75 Criminal Justice Act 2003 for when they do apply:

75 Cases that may be retried

(1) This Part applies where a person has been acquitted of a qualifying offence in proceedings—

  • (a) on indictment in England and Wales,

  • (b) on appeal against a conviction, verdict or finding in proceedings on indictment in England and Wales, or

  • (c) on appeal from a decision on such an appeal.

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  • So I should forget about Double Jeopardy. Looking at Section 75, it mentions offences carried out outside of the UK; which offences are qualifying offences? I am not sure why you mention the Extradition Act if the person is no longer in trouble in Spain, and is now living in the UK as extradition back to Spain is likely not possible. Sep 6, 2023 at 20:54
  • @user5623335 It wasn't clear to me from the question that they were in the UK. I read it that they were still in Spain. Apologies for the confusion. Here is the list of qualifying offences
    – user35069
    Sep 6, 2023 at 21:24
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    Could you explain part (4) and (5) to me, because it appears to say: people acquitted outside of the UK of a qualifying offence can be retried. Sep 6, 2023 at 21:54
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    @user5623335 I see your edit, and I am drafting an edit to my answer. Was the suspect a UK national or resident in the UK at the time (e.g. on holiday), or are they neither? This makes a difference to how it would be managed in E&W
    – user35069
    Sep 7, 2023 at 6:28
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    @user5623335 Also, was the victim of the "sexual crime" a child? Again, this make a BIG difference
    – user35069
    Sep 7, 2023 at 6:42
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Double jeopardy applies only to a single “sovereign”

Whether or not the person has been put at jeopardy in another jurisdiction is irrelevant for English and Welsh law; if they have not been put in jeopardy there, they can be charged.

In general, jurisdictions tend not to charge people when they have already been tried or punished in another jurisdiction. Except when the prosecutor feels the trial was unfair or the punishment inadequate. However, that is a custom, not a law. Technically, England and Wales can prosecute even if someone has been convicted and served their time in Scotland (I think) but that doesn’t happen.

Certainly, in federated countries, state prosecutions do not preclude Federal prosecutions and vice-versa.

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  • Not sure if someone that has been punished in Scotland can be tried again in England & Wales. Looking at the answer from Rick, check out section 75 Criminal Justice Act 2003. Cases that can be retried seem to only apply to people that escaped punishment. Sep 6, 2023 at 22:04
  • what about Article 50 and Article 54 forbidding that? It applies to the UK and most EU countries. Jan 19 at 1:44
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This is really about whether the hypothesized circumstances can count as an acquittal. If there has been an acquittal in normal circumstances (the case made it to court, the defendant was found not guilty, nothing corrupt happened, the court was competent and acting within its jurisdiction, there is no new evidence, the crime isn't a special one like terrorism, etc.) then that is certainly enough to stop a second trial, even if the first one happened abroad. If the case was not tried in Spain at all, then the UK trial would be the first one and there is no double jeopardy involved. In the middle - where some sort of judicial process has been engaged, but there hasn't been an acquittal on the merits of the case - there is a bit of a muddle.

As explained below, in the case of Spain there is a special reason why scenario (3) can amount to an acquittal for UK purposes. For many other countries in the world, it would not be considered an acquittal and would not bar a UK trial. The difference is that for European countries, there are treaty rules under which the UK will respect the position of Spanish law as to when a final determination has been reached. With other countries, it will apply UK common-law rules, under which a trial that is halted because of a procedural bar, without the substance of the accusation having been considered, doesn't "count" for double jeopardy purposes.

Foreign acquittals are the same as domestic ones

The availability of the plea "has always applied whether the previous conviction or acquittal based on the same facts was by an English court or by a foreign court" (Lord Diplock in Treacy v DPP [1971] AC 537, further citing cases back to R v Roche (1775) 1 Leach 134). The situation in Scotland is the same. So if there has been an acquittal after a full trial, which ordinarily stands to be proved by showing the judge the relevant documents from the foreign court, then we are done. Again, there are exceptions if the foreign process was totally compromised by corruption, for example.

If the prior proceedings terminated in another way, for example by a prosecutor declining to bring a case to trial, or the court dismissing the case because it had no jurisdiction, then the defendant cannot claim to have been previously acquitted. He might still be able to argue "abuse of process" (or in Scotland, "oppression") as grounds why there should not be a second trial. That can also be offered if the second prosecution isn't an exact duplicate of the first one, but is still so similar that it would be unjust for the prosecutor to have another go at a conviction. All this is regardless of where the first proceedings took place.

The quoted bold text in the question isn't about alleged offences which never made it to court. It's about being tried again for a different formal offence, but on the basis of the same facts for which there has already been an indictment. The same conduct can often be charged in different ways and it is undesirable if someone can be acquitted of (say) "assault occasioning actual bodily harm" only to face trial again for "common assault", for the same incident. But you cannot say that you were previously acquitted if the court has never even heard of you. And a UK court would not be asked to apply Spanish criminal law to imagine whether the defendant might have been acquitted, if a trial had taken place - as in scenarios (1) and (2).

However, there is a weird anomaly...

There is an unusual special case in this question, because there is specific case law on time-barred prosecutions and the application of cross-border double jeopardy protection, for certain European countries. That is because of a treaty - the Convention Implementing the Schengen Agreement - which provides for the transnational application of the ne bis in idem principle, essentially double jeopardy protection. Each signatory is bound to respect the final determination of another signatory's national courts.

Article 54. A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party

(The status of the Convention in UK law is a bit tricky to work out. It originated as an independent agreement between a growing number of European states, but was adopted into EU law. It was never fully binding on the UK, famously outside the "Schengen zone" for travel. The UK has now left the EU, but subject to various transitional procedures. Among the "retained EU legislation" which continues to be binding in domestic law is the Council Decision of 29 May 2000 by which the UK agreed to participate in Articles 54-58 of the Schengen Convention. Further, domestic courts will continue to apply pre-Brexit EU case law when it comes to interpreting what this text really means. UK statutes about retrials, e.g. the Double Jeopardy (Scotland) Act 2011, s.10(3), exclude cases covered by Schengen from those where the special retrial procedures can be ordered.)

In 2006, the European Court of Justice addressed whether this principle applies in the case of a time-barred prosecution, in Case C-467/04. The defendants in that case were being tried in Spain, but it appeared that two of them had previously been acquitted by the Supremo Tribunal de Justiça in Portugal "on the ground that their prosecution was time-barred". So this is pretty much the same as the circumstances in the question's scenario (3), although about different countries and offences.

The ECJ decided that "Such a person must therefore be regarded as having had his trial finally disposed of" (para. 28) for the purposes of Article 54, even though different countries have different rules and procedures about limitation. The point is that the signatories have agreed to put mutual trust in their criminal justice systems, even though there are plenty of differences among the countries.

However, the ECJ also found that in order for the principle to kick in, there must have been a trial at which the matter was "finally disposed of" (paras 34-37). There is some subtlety about what "finally" means, given differing approaches about when a prosecution could be paused or halted, and then restarted, but the court here put weight on the word "trial" appearing in the Convention text. The thrust of the case law, and see e.g. Case C-398/12 of 5 June 2014, is to respect whatever the original national criminal justice system considers to be final. In the scenarios in the question, the idea is that if at any point the law of Spain considers there to be an acquittal which would bar any further prosecution, then the UK would have to respect that acquittal.

This has the perverse outcome that if a criminal charge were brought in Spain and then immediately dismissed because of the time-bar, then it would also bar a UK prosecution; but if it were not brought at all, then the UK prosecution could go forward, since the matter has never been before the courts. So in this scenario, the accused would actually want there to be a futile Spanish prosecution.

This precedent is not completely determinative of what might happen in reality, since a British court could end up distinguishing the circumstances or the rationale. For example, part of the grounds for the decision in 2006 was that the purpose of the Schengen Convention was to give free movement rights to the defendants, which they wouldn't be able to enjoy if they faced potential prosecution in other member states. That purposive reading does not apply to the UK's situation.

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  • I will assume your whole answer is on the basis that the offender has returned to the UK, and will never return to Spain even on holiday. Please assume this happened whilst the UK was still part of the EU (like 2008), and they are currently living in the UK yet to be arrested in the UK but will in the foreseeable future. What you said about the EU treaty rules is interesting, do you have a link so I can confirm that UK will use those EU treaty rules rather than common law? The cases you cite are before the UK joined the EU in 1973. Why down voted?! Sep 6, 2023 at 23:27
  • I want to make this as the correct answer AlexG but you have a downvote and I am new to law. Sep 20, 2023 at 15:29

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