Double Jeopardy – Resolving the Conflict between Competing Rights and Interests
Article by Dan Rogers
Double jeopardy is commonly regarded as the process by which a person is put in peril of conviction more than once for the same offence. It is regarded as a fundamental human safeguard against oppression by the State. The rule has existed in the English common law since the twelfth century. Despite this rich history, recent events have shown how vulnerable the rule is to the legislative whim of national and international communities. Many States have now introduced legislation allowing for exceptions to this long-standing rule. The international community, particularly the United Nations Human Rights Committee, has also shown preparedness to weather away the rule under limited circumstances. It is this background of reform which has seen an increased debate, and an influx of literature, about the rule against double jeopardy.
The erosion of any fundamental human right is concerning and requires close analysis. However, the abrogation of this principle has been welcomed by politicians seeking to ‘cash in’ on the law and order debate. Notwithstanding the concerning political climate which has fuelled reform, it is fanciful to think that certain rights are so paramount that there can never be circumstances in which they should be limited.
This paper will argue that a limited exception to the rule against double jeopardy is acceptable under international human rights law and where strict control mechanisms are in place, it constitutes a rational and acceptable abrogation of a human right.