KembaraXtra - Legal Terms - Special Plea

1. Introduction

A special plea is a formal plea in criminal proceedings that raises a legal objection preventing an accused person from being tried on an indictment, irrespective of the factual merits of the prosecution’s case. Historically known as a plea in bar of arraignment, it does not dispute whether the accused committed the alleged offence but instead asserts that there is a legal reason why the prosecution cannot proceed. The plea therefore seeks to terminate the criminal proceedings before the court considers the evidence relating to guilt or innocence. Unlike a plea of guilty or not guilty, which addresses the substance of the criminal charge, a special plea concerns the legal validity of the prosecution itself. It represents one of the oldest procedural safeguards in the common law, protecting individuals from unlawful or repetitive prosecutions.

2. Historical Development and Legal Basis

The concept of the special plea originates in the English common law, where pleas in bar of arraignment were recognised as exceptional procedural defences preventing an accused person from being placed on trial in certain circumstances. Although modern criminal procedure has evolved considerably, these pleas continue to be recognised where fundamental principles of justice require that a prosecution should not proceed. The Criminal Procedure Rules and the common law regulate the manner in which such pleas are raised and determined, while statutory provisions may also apply depending on the nature of the defence advanced. Courts ordinarily determine the validity of a special plea before the trial itself begins, thereby avoiding unnecessary proceedings if the plea succeeds. This procedural approach promotes judicial efficiency while safeguarding the legal rights of the accused.

3. Types of Special Plea

The two most important forms of special plea are autrefois acquit and autrefois convict, both of which are founded upon the principle that no person should be tried twice for the same offence. A plea of autrefois acquit asserts that the accused has previously been lawfully acquitted of the same offence and therefore cannot be prosecuted again for that identical allegation. Conversely, autrefois convict alleges that the accused has already been convicted and punished for the same offence, making any further prosecution legally impermissible. These pleas reflect the broader doctrine against double jeopardy, which seeks to preserve the finality of criminal proceedings and protect individuals from repeated prosecution. Although modern legislation has created limited exceptions permitting retrials in certain serious cases involving compelling new evidence, the underlying principle continues to form an important safeguard within English criminal law.

4. Procedure and Determination

A defendant wishing to rely upon a special plea must ordinarily raise it before entering a plea to the indictment or at the earliest appropriate stage of the criminal proceedings. The court will determine whether the legal requirements of the plea have been satisfied, often by considering documentary evidence relating to previous proceedings rather than hearing evidence concerning the alleged offence itself. If the court concludes that the special plea is well founded, the prosecution is barred from continuing and the accused will not be required to stand trial on the relevant charge. If the plea is rejected, the criminal proceedings continue in the ordinary manner and the accused must then respond to the substantive allegation by pleading guilty or not guilty. This preliminary determination ensures that questions affecting the legality of the prosecution are resolved before the court proceeds to consider the factual issues.

5. Relationship with Double Jeopardy

Special pleas are closely associated with the constitutional principle of double jeopardy, which protects individuals from being prosecuted repeatedly for the same criminal conduct. The common law has long regarded repeated prosecutions following a final acquittal or conviction as fundamentally inconsistent with justice, legal certainty, and the proper administration of criminal law. Modern legislation, including the Criminal Justice Act 2003, has introduced carefully limited exceptions allowing retrials for certain serious offences where compelling new and reliable evidence subsequently becomes available. Nevertheless, these statutory exceptions are narrowly confined and operate only under strict judicial supervision to prevent abuse of the criminal process. Consequently, the traditional special pleas continue to represent an important procedural expression of the enduring protection against double jeopardy.

6. Legal Importance

The special plea remains a significant procedural safeguard because it protects individuals from unlawful prosecution while preserving confidence in the fairness and finality of the criminal justice system. By preventing repeated or legally impermissible prosecutions, it reinforces the rule of law and ensures that criminal proceedings are conducted in accordance with established legal principles rather than prosecutorial discretion alone. The availability of special pleas also reflects the balance that criminal procedure seeks to achieve between the public interest in prosecuting crime and the individual’s right to legal certainty and procedural fairness. Although such pleas arise relatively infrequently in modern practice, they continue to perform an essential constitutional function within English criminal law. Accordingly, the special plea remains an enduring example of how procedural rules safeguard individual liberty while maintaining the integrity of the criminal justice system.