Aspects of double jeopardy

Abstract

The common law right of the accused to be protected against double jeopardy recently acquired constitutional status in South Africa. Although South African courts previously applied this rule in various procedural contexts, there has been very little critical discussion of the values on which the rule is based. Nor have all contexts in which the rule should be applied been recognised. In the light of the new constitutional dispensation, it has become necessary to identify and analyse the values which determine the application of the rule. This thesis addresses the treatment of various aspects of double jeopardy in other constitutionally·grounded jurisdictions. Double jeopardy jurisprudence in the jurisdictions of England, Canada, India, Germany and the federal system of the United States of America is considered on a comparative basis. The historical origin and development of the rule are considered first. This is followed by an assessment of the current application of the rule in the various jurisdictions. The study demonstrates that South African courts have relied largely on outdated principles derived from English common law, rather than applying the rule by focusing on the values that underlie the rule. This approach has become unacceptable in the new constitutional dispensation, inter alia, because a teleological, value·orientated interpretative approach has been adopted by the Constitutional Court. This thesis indicates which of the principles that developed in foreign constitutional double jeopardy jurisprudence may be of value in developing an appropriate body of South African constitutional double jeopardy principles. Proposals are made for future implementation of the rule in various procedural contexts. These suggestions include constitutional interpretation, legislative amendment and re·evaluation of various common law principles of criminal procedure