Proposal for reform
Protection against “double jeopardy”: bar to subsequent criminal prosecution
9.159As the law currently stands, if a perpetrator fully engages in an alternative programme and fulfils agreed outcomes, it would still be possible for a criminal prosecution to be brought in respect of the same conduct. There is an argument that a perpetrator should not be subjected to more one than penalty, nor have to defend themselves against simultaneous “actions”, relating to the same wrongful conduct.
9.160As outlined in Chapter 8, in order to provide sufficient incentive for a perpetrator to participate in the alternative process, we recommend that where a perpetrator participates in the alternative process and completes the entire process, including fulfilling the terms of any outcome agreement, there would be a statutory bar to subsequent prosecution of the perpetrator in respect of the same incident of sexual violence against the same victim.
9.161We therefore recommend that provision be made in legislation so that where a perpetrator participates in and completes the entire alternative process conducted by an accredited provider using an accredited programme, including fulfilling the conditions of any outcome agreement, there would be a bar to subsequent prosecution of the perpetrator in relation to the same incident of sexual violence against the same victim.
9.162The statutory bar would not apply and it would be open to the victim to lay a complaint with Police in respect of the sexual violence, which may result in criminal prosecution, in the following circumstances:
- if the alternative process was not completed, which would include the situation where either the victim or the perpetrator withdrew from the process prior to completion of the process;
- if, at the provider’s discretion, it ceased the programme;
- if the terms of an outcome agreement were not fulfilled by the perpetrator; or
- if disclosures were made during the alternative process concerning acts of sexual violence against other victims or new disclosures were made concerning other acts of sexual violence against the same victim.
- R62 The statute should provide that where a perpetrator participates in and completes the alternative process, there is a bar against subsequent prosecution of the perpetrator for the same incident of sexual violence against the same victim, except in the instances noted in paragraph 9.162 of this Report.