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III. Where should the line
be drawn?

• be confined to acquittals in the most serious classes and kinds of case;

• require conviction of an administration of justice crime;[40]

• be dependent upon the judgment of the High Court that certain conditions, discussed in chapter 3, have been met.[41]

38 We would reserve the exceptional course of permitting reopening for the most serious classes of case where public confidence in the law would be most gravely shaken if a perverted acquittal were not able to be reviewed.

39 The most obvious example is murder; other clear cases are treason, sabotage, sexual violation, wounding with intent, and offences involving Class A drugs. The protean crime of manslaughter extends from virtual murder to virtual accident; it illustrates the need for discrimination. But as illustrated by examples cited by the 1993 Committee on the Penalty for Homicide,[42] murder itself can occur across a broad spectrum: from the ruthless shotgun robber who kills in cold blood to the battered wife who eventually kills a brutal husband.

40 We are of the view that only acquittals of crimes carrying 14 years imprisonment or more should be eligible for an application for leave to reopen. We append as appendix D a list of the crimes that would currently qualify. We exclude section 109(2) (perjury) of the Crimes Act 1961 as entailing risk of confusion: it is itself an “administration of justice” offence and we think it undesirable to have one administration of justice verdict susceptible to be reopened because of another such offence. The requirement of corroboration of evidence in a perjury case marks it out in a special category.

41 But since even the most serious classes of crime vary widely in their heinousness, further conditions are necessary. These are dealt with in chapter 3.

42 Despite its support by one respondent to our Preliminary Paper we do not in general agree with the proposal of the Law Commission for England and Wales that the requirement of actual conviction for an administration of justice crime can be done away with and that it would be sufficient to satisfy the High Court that such conduct has occurred.[43]

43 To avoid oppression we consider that there should be no jurisdiction to entertain a second application for retrial in respect of any acquittal. If the retrial is tainted by a further administration of justice offence by the accused, there should not be jurisdiction to entertain a further application for retrial. Whether it would be contrary to the interests of justice to proceed could be another matter.