Raising the pleas in bar against a retrial for the same criminal offence

AuthorGerard Coffey
PositionB.A. (U.L.), LL.B. (N.U.I.), Ph.D. (N.U.I.)
Where a criminal charge has been adjudicated upon by
aCourt having jurisdiction to hear and determine it,
that adjudication, whether it takes the form of an
acquittal or conviction, is final as to the matter so
adjudicated upon, and may be pleaded in bar to any
subsequent prosecution for the same offence.1
The practical effect of the common law principle against
double jeopardy is the proscription against retrials for the same
criminal offence following an acquittal or conviction.2Pleading
double jeopardy3is not to be equated with a defence to a criminal
charge, the former operating to prevent the second prosecution from
proceeding ab initio,the latter being a mitigating factor against the
accused’s criminal liability which the trial court may take into
consideration when imposing sentence.
The constituent rules of double jeopardy jurisprudence are
not easily applied in practice and, therefore, necessitate a more
detailed examination. To determine in any particular case whether
the pleas in bar,autrefois acquit (former acquittal) or autrefois
convict (former conviction) against a second trial for the same
124 [5:2Judicial Studies Institute Journal
*B.A. (U.L.), LL.B. (N.U.I.), Ph.D. (N.U.I.). Research Officer in Criminal Justice, Centrefor
Criminal Justice, School of Law, University of Limerick. The views expressed in this paper are
those of the author and not necessarily those of the Centrefor Criminal Justice. This article is
substantially based on a chapter of a Ph.D. in Law recently completed at NUI, Galway.
1R. v. Miles (1890) 24 Q.B.D. 423 at 431 (Q.B.) per Hawkins J.
2The significance of a retrial following a conviction is that if the accused had formerly been
convicted of a lesser-included criminal offence and fresh and viable evidence of the accused’s
guilt of a compound offence subsequently emerges, then he cannot at present be retried for the
greater offence, the most common example being a former conviction for manslaughter where
evidence now establishes that the accused was in fact guilty of the greater offence, murder.
3At common law, the principle against double jeopardy was expressed by the four pleas in bar,
autrefois acquit,autrefois convict,autrefois attaint and former pardon. However,given that
the former two pleas in bar aremost relevant to contemporary criminal procedure, they will be
the focus of this article.
criminal offence are available to the accused, it is generally accepted4
that there are three essential criteria to be satisfied:
The accused had formerly been in jeopardy (or
peril) of a lawful conviction before a court of
competent criminal jurisdiction;
The former criminal trial must have concluded
with a final determination of the facts at issue, i.e.
that there has been a final verdict, either of
acquittal or conviction, following a trial on the
The criminal offence for which the accused has
been charged on the second occasion is the same or
substantially the same offence as that for which he
had formerly been acquitted or convicted.
Before discussing the criteria for the pleas in bar, it is first
necessaryto address some preliminaryissues, namely the procedures
to be followed when pleading double jeopardy and the applicability
of the pleas in bar.
The general rule is that the pleas in bar areraised at the
arraignment, at which point the accused is entitled to plead not
guilty, in addition to the pleas in bar of the indictment.5However,
statute law in Ireland6has made provision for the abolition of the
preliminaryexamination or arraignment in the District Court for
indictable offences. Accordingly, the accused would be well advised
to raise the pleas in bar once he has been arrested and charged with
the commission of the same criminal offence. Furthermore, there
does not appear to be any legal restriction against pleading double
jeopardy during the course of the criminal trial.
2005] Raising the Pleas in Bar against a Retrial for the
Same Criminal Offence
4Ryan, E., and Magee, P., The Irish Criminal Process (Mercier Press, Dublin, 1983), pp. 272-
275; Sandes, R., Criminal Law and Procedurein the Republic of Ireland (3rd ed., Sweet &
Maxwell, London, 1951), p. 117; Turner, J.W.C., (ed.), Kenny’s Outlines of Criminal Law
(19th ed., Cambridge University Press, Cambridge, 1966), p. 606, para. 743.
5Connelly v. DPP [1964] A.C. 1254 at 1303 (H.L.) per Lord Morris. The pleas in bar are most
likely to be made at the arraignment stage at which point the prosecution will either concede
to the accused’splea whereupon the accused will immediately be discharged, or alternatively
answer the plea by way of replication.
6Part III of the Criminal Justice Act, 1999.
The pleas in bar should be reduced to writing, signed by
defence counsel, and where the prosecution disputes this as is most
likely, they should do so by replication, which involves filing a notice
to the effect that the prosecution denies the accused’s plea of former
acquittal or conviction.7However, the prosecution’s assertion that
the accused was not either formerly acquitted or convicted for the
same criminal offence may not be sustained where a formal record of
the trial court substantiates the accused’s contention. A former
conviction or acquittal may not only be established by the
production of a certified record of the trial court, but also by other
evidence if necessary.8Consequently, the accused may establish what
evidence was adduced during the course of the former criminal trial
in order to establish a former acquittal or conviction. Nevertheless,
the trial court, at the subsequent hearing of the issue, is entitled to
enquireas to the legality of the former trial court’sjurisdiction, i.e. if
the proceedings during the former trial were ultra vires,the verdict of
that court will be deemed void ab initio of legal efficacy and,
accordingly, may not form the basis of the pleas in bar against a
second trial for the same criminal offence.
Where the accused raises the pleas in bar, a jury is empanelled
to determine the validity of the pleas.9The onus of proof rests with
the accused on the balance of probabilities and the jury must be
satisfied that there has been a former acquittal or conviction for the
same criminal offence arrived by a courtof competent criminal
jurisdiction following a trial on the merits.10 If the juryfinds in favour
of the accused, then he must be discharged in respect of the entire
indictment or to those counts in the indictment to which the plea in
bar had been considered by the jury (finding in the accused’s
favour).11 Conversely, if the juryfinds against the accused, then he is
126 [5:2Judicial Studies Institute Journal
7Flatman v.Light [1946] 1 K.B. 414 at 419 (K.B.D.) per LordGoddard C.J.
8Connelly v. DPP [1964] A.C. 1254 at 1306-1307 (H.L.) per Lord Morris’s (6th principle).
9The People (DPP) v.O’Shea [1982] I.R. 384 at 432 (S.C.) per Henchy J.In accordance with
the principles of natural justice, where a juryhas been empanelled for the purpose of
determining the pleas in bar, then that same jury should not try the case having previously
considered the guilt or innocence of the accused. It is a fundamental principle of natural justice
that a court or tribunal must be impartial in its adjudication of the facts at issue, commonly
expressed by the maxim nemo iudex in causa sua.
10 Sandes, R., Criminal Law and Procedure in the Republic of Ireland (3rd ed., Sweet &
Maxwell, London, 1951), p. 118; Ryan, E., and Magee, P., The Irish Criminal Process (Mercier
Press, Dublin, 1983), p. 278; Bing, I., Criminal Procedure and Sentencing in the Magistrates’
Court (3rd ed., Sweet & Maxwell, London, 1994), p. 108, para. 5-57.
11 Ryan, E., and Magee, P., The Irish Criminal Process(Mercier Press, Dublin, 1983), pp. 278-

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