The application of the 'Ne bis in Idem' rule in Malta, the United Kingdom and the United States : a comparative analysis

Abstract

The Ne bis in idem principle is deemed to be a procedural defence which prevents a second prosecution on the basis of the same offence or on the same facts, as regards a person who has been either acquitted or convicted in the first trial. Maltese Law provides a distinctive application of the ne bis in idem principle and it will always continue to have an affect on the application of instruments of mutual recognition and extradition. When examining how this principle in embedded in both the Constitution and the Criminal Code, one can conclude that the Criminal Code offers a wider and more liberal approach of the principle than the Constitution. Moreover, in English Common Law, the autrefois acquit and autrefois convict maxims have been regarded as essential to the subject’s liberty and respect regarding the finality of proceedings. It is a general principle that a person may not be tried more than once for the same offence. Following the Stephen Lawrence case, there have been amendments to the law relating to Double Jeopardy. The Court of Appeal can not revoke an acquittal and order a re-trial when new evidence is produced. Furthermore, in the United States, the Double Jeopardy rule lies within the clause of the Fifth Amendment for the United States Constitution. Originally, the Double Jeopardy clause applied to the federal government however through the Incorporation Doctrine and the Fourteenth Amendment, this rule may also be applied in State Courts. The prevalant factor in these three countries is that the guilty should always be faced with justice and that court proceedings are to be held diligently.