Double jeopardy (in civil-law systems often called ne bis in idem, "not twice for the same") protects individuals from repeated prosecution or punishment for an offence on which a competent court has already rendered a final judgment. It serves three commonly cited purposes: preserving the finality of judgments, limiting state power to harass defendants through serial prosecutions, and protecting against multiple punishments for one act.
The rule appears in numerous constitutions and human-rights instruments:
- The Fifth Amendment to the U.S. Constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb."
- Article 14(7) of the International Covenant on Civil and Political Rights (ICCPR, 1966) prohibits retrial for an offence for which a person has already been finally convicted or acquitted "in accordance with the law and penal procedure of each country."
- Protocol No. 7, Article 4 to the European Convention on Human Rights extends the protection within each contracting state.
- Article 50 of the EU Charter of Fundamental Rights applies ne bis in idem across EU member states.
- The Rome Statute of the International Criminal Court (Article 20) bars the ICC from retrying conduct already adjudicated, subject to exceptions for sham proceedings.
Scope varies significantly. The U.S. "dual sovereignty" doctrine, reaffirmed in Gamble v. United States (2019), permits successive federal and state prosecutions for the same conduct. England and Wales narrowed the rule through the Criminal Justice Act 2003, allowing retrial for serious offences when "new and compelling evidence" emerges — used in the 2012 reconviction of Gary Dobson for the 1993 murder of Stephen Lawrence. International tribunals generally treat sham national trials as not triggering the bar.
Key analytical questions include what counts as the "same offence" (same elements, same conduct, or same facts) and when jeopardy "attaches" — typically at the swearing of the jury or the start of evidence in a bench trial.
Example
In 2012, Gary Dobson became the first person retried for murder under England's revised double jeopardy rules and was convicted for the 1993 killing of Stephen Lawrence after DNA evidence emerged.
Frequently asked questions
No. Most systems allow appeals by the defence, retrial after a mistrial or successful prosecution appeal on points of law, and in some jurisdictions retrial when compelling new evidence emerges in serious cases.
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