Disposable Double Jeopardy

January 3, 2012 44 Comments
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I’ve noticed that in the UK someone has finally been convicted for the murder of Stephen Lawrence, some 18 years after the fact and after having already once been found not guilty. I don’t wish to defend the two men who’ve just been convicted – for all I know they did do it, and the very conspicuously did not sue The Daily Mail when that paper came right out and accused them of the murder on the front page and challenged them to sue if it was wrong. This is one of those awkward situations where I think that someone who is probably, though not certainly, guilty has been convicted but I’m as uncomfortable as hell in the way it’s come about. In short an ancient legal protection was tossed away and then this was applied retrospectively in order to paper over the cracks of an inadequate investigation.

The law of double jeopardy meant no one could be tried twice for the same crime but that legal principle was abolished in 2005 following a series of high profile campaigns.
The Lawrence murder played a key part and Sir William Macpherson recommended the law be changed following his inquiry in to the case in 1999.
Until 2005 there was no chance of ever bringing Dobson back to court as a suspect in the murder because he was acquitted, along with Neil Acourt and Luke Knight, following a private prosecution brought by Stephen’s parents in 1996.
However, that situation changed with the 2003 Criminal Justice Act 2003, which abolished the double jeopardy rule for serious crimes and which came in to effect two years later.
Crucially, it was also retrospective meaning it did not matter whether an alleged offence had occurred before 2005.

Seriously, how can anyone be comfortable with the police getting another go when it’s believed the jury got it wrong the first time? How many people in the UK went apeshit over the EU’s practice of repeat referenda until it got the desired outcome? How many of those will now be nodding approval at the British criminal justice system doing more or less the same thing?

Let’s look at a more mundane parallel. Let’s say you’d been done for speeding and decided to fight the ticket in court, and you discovered that the device the police caught you on was supposed to be calibrated daily but in fact they’d only been doing it once a week. As a result you’re found not guilty and sent on your way. Now imagine that the law is changed so that the speed device was now allowed to be calibrated once a month and that speeding motorists who’d been acquitted by a court once could be dragged back in again, except this time they wouldn’t have a leg to stand on. Ridiculous? Why? The law allowing the criminal justice system a second bite for murderers sets the precedent, and it’s naive to think that eventually there won’t be calls for it to be extended to those acquitted of kidnap or rape or drug dealing… and if those then why not robbery, burglary, assault, fraud, possession and even motoring offences? The principle has now been established that nobody may be tried twice for the same offence unless someone thinks it’s quite important, and that importance may be established retroactively if need be.

And in case anyone thinks that I’m an unfeeling bastard who cares nothing for the death of Stephen Lawrence, or even that I’m a racist taking the side of the white guys, it’s not that at all. Like I said, I think they’re probably, though not certainly, guilty. But the steps taken to convict them of murder open up the possibility, slender though it might be at the moment, of anyone being tried again (and who knows, maybe again) if there’s enough belief that they’re guilty. Until now the police and Crown Prosecution Service have not had the luxury of being able to put defendants in the dock again and again until one jury gets the ‘right’ verdict, which is both to protect the innocent and discourage police and prosecutors from putting up with a sloppy investigation.

This will be a popular result and might even be a just one, but really it shouldn’t please anyone, not even those close to Stephen Lawrence and certainly not those who are already hoping to see more use of disposable double jeopardy. I’ll let Sir Thomas More have the final word and explain why.

“What would you do? Cut a great road through the law to get after the Devil? … And when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast, Man’s laws, not God’s, and if you cut them down — and you’re just the man to do it — do you really think you could stand upright in the winds that would blow then? Yes, I give the Devil benefit of law, for my own safety’s sake!”

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44 Responses to Disposable Double Jeopardy

  1. January 3, 2012 at 4:43 pm

    Quite. Double jeopardy was an essential safeguard. That safeguard has been swept aside. We should be very worried by this. very worried indeed.

    • January 3, 2012 at 4:56 pm

      I’d be a lot more worried if I was still there. As it is I’m fairly worried that some fucknuts here will think it’s a good idea.

      • January 3, 2012 at 4:57 pm

        Oh, you just know it’s on someone’s mind!

      • Twenty_Rothmans
        January 3, 2012 at 6:51 pm

        Don’t you worry about that, AE. The VicPolice always get their man, unless he’s well-connected, allegedly.

  2. January 3, 2012 at 4:45 pm

    Removing the double jeopardy rule takes away a fundamental safeguard, that of protecting the individual from an overbearing state that wants the ‘right’ result. Whether the defendants in the Stephen Lawrence case committed murder or not has not been the main issue. The impetus to bring someone to trial has had a strong political aspect to it. Double jeopardy,along with trial by jury,which has also been cast aside- is exactly what the rules were guarding against. I believe we can expect more such trials in the future

    • January 3, 2012 at 4:58 pm

      “I believe we can expect more such trials in the future”

      Depends. I’m betting we won’t see a retrial in the Charlene Downes case… :/

      • January 3, 2012 at 8:42 pm

        Good point. Don’t know if you picked this up, but it was slipped out on Christmas eve to avoid as much publicity as possible:

        A Lancashire detective has been forced to resign after an investigation into the handling of a murder case.

        A disciplinary hearing found Det Sgt Jan Beasant guilty of misconduct following a review of the investigation into the murder of Blackpool teenager Charlene Downes.

        Iyad Albattikhi was cleared in 2008 of killing her after “grave doubts” were raised around the evidence.

        Lancashire Police said Ms Beasant had shown conduct that “let everyone down”.

        Two other officers who retired prior to the Independent Police Complaints Commission (IPCC) investigation could not be considered for disciplinary sanctions.

        link to bbc.co.uk

        Story continues there. If the rhetoric is sincere, the police would love a chance get it right.

        • January 4, 2012 at 6:57 am

          I did indeed see the report (albeit the ‘Guardian’ version rather than the BBC one).

          Both are rather coy about exactly what she’s supposed to have done wrong, though it’s interesting in light of the heavy use of surveillance in the Lawrence case that one criticism was this: “John Bromley-Davenport QC, defending Mr Reveshi, said Det Sgt Beasant was totally unqualified for the task of listening to the tapes and already knew a huge amount about the case.”

          If that’s a valid criticism, I wonder if it was avoided with the Lawrence suspects?

    • January 3, 2012 at 5:01 pm

      I’m sure of it, and I doubt it’ll stay at just murder. I forgot in the post but there’s going to be a lot of pressure to be able to try terrorists repeatedly, so that’s going to be a whole lot of conspiracy to do X, Y and Z type offences that could be added. Hate crime? Surely too many people are getting away with this at the moment. I’d be astonished if someone in Whitehall isn’t already thinking about these questions.

  3. January 3, 2012 at 5:23 pm

    There is very little doubt in my mind that these two were involved, however, it’s near impossible, due to police failures and other matters for it to be proven beyond reasonable doubt. This conviction worries me, because it will almost certainly go to appeal.

    Either way the biggest miscarriage of justice was felt by the Lawrence family.

  4. James Strong
    January 3, 2012 at 5:29 pm

    Thank you for this post.
    And I’m pleased to see the comments underneath it too.

    It is right that murderers should be convicted and put in prison.

    It is also right that citizens should not be subject to repeated prosecution until the ‘right’ desired verdict of conviction is achieved.

    If both these goals cannot be achieved then I want to prioritise the protection from repeated prosecution.

    Surely nobody believes that it will stop here with this case, or stop with murder cases. It will creep and creep over time and will do enormous damage to our legal system and society.

    It will also lead to, if not encourage, lazy and sloppy police work.
    They will be tempted not to pursue investigations properly, thinking that if they don’t do quite enough first time there’s always the chance of a second bite at the cherry.

    • January 4, 2012 at 7:19 am

      “It will also lead to, if not encourage, lazy and sloppy police work.”

      If it does, how will we tell..? :twisted:

  5. January 3, 2012 at 5:55 pm

    Another thought here. The issue of joint enterprise was mentioned – in that one of the defendants claimed that although present, he took no part in the attack. Leaving the veracity of that claim aside, joint enterprise did not apply in 1993. So he has been tried for an offence that was not on the statue book when the attack happened.

    Think about the implications of that one, eh?

    • January 3, 2012 at 6:15 pm

      Also, the ‘Guardian’ mob have been dead set against the concept of ‘joint enterprise’ – but somehow, they seem to have unaccountably forgotten that here….

      As our US cousins say ‘Go figure!’. :twisted:

      • January 3, 2012 at 6:17 pm

        But maybe I’m wrong, and Afua will pen a strongly-worded CiF article decrying this verdict tomorrow.

        Wow! Those winds are strong tonight, a pig just went flying past my window!

    • January 3, 2012 at 11:52 pm

      Surely joint enterprise has been around for donkey’s years. Wasn’t it what got Derek Bentley hanged even though he was already under arrest when his mate shot the police officer?

      • January 4, 2012 at 7:29 am

        I thought so too. But the ‘Guardian’ sure made an awful fuss about it.

      • January 4, 2012 at 8:58 am

        Derek Bentley swung for the “let him have it” comment. So, yes, evidence they used as joint enterprise, I guess.

  6. jaded
    January 3, 2012 at 6:47 pm

    Difficult subject this one.This case was hijacked by the racism industry and the original prosecution was wrongly bought after the CPS (correctly this time) said the evidence wasn’t good enough.However these two were not acquitted by a jury but a judge threw it our before then (from memory).
    I don’t think more minor cases will fall into the double jeopardy trap.That could include MP’s who have got off previously!

    • January 3, 2012 at 10:55 pm

      ‘Racist Murder and Pressure Group Politics’ by author Norman Dennis.

      His book covers the Lawrence Investigation and provides a good critique of the McPherson enquiry and subsequent Report.
      Well worth a read

    • January 4, 2012 at 12:03 am

      I think you may be right about the original case but since writing the post I see that before this new trial could go ahead it was necessary to have the result of the private prosecution, an acquittal, quashed by the appeal court. It does smack of a determination to get these guys, which might be fine when guilty people are involved but overall should worry the rest of us. I don’t have your faith that ‘mission creep’ won’t come into play, even though the point about MPs who escaped is well made. Thing is, I don’t believe current and future MPs would hesitate to throw their predecessors under that bus if they felt that there were votes in it.

  7. Single Acts of Tyranny
    January 3, 2012 at 6:53 pm

    I support the concept of no double jeopardy, not because I don’t think these animals did it, but because I want protection from a pervasive state.

    I do not wish to be critical, but imagine a scenario where some guys murdered your son, would you wait eighteen years for justice, or about ten minutes?

  8. January 3, 2012 at 7:12 pm

    “And in case anyone thinks that I’m an unfeeling bastard who cares nothing for the death of Stephen Lawrence, or even that I’m a racist taking the side of the white guys, it’s not that at all.”

    Those thoughts never crossed my mind as I’m in complete agreement with you. Double jepordy was there to ensure the machinery of law did it’s job properly.

    This is not justice.

  9. January 3, 2012 at 8:09 pm

    I’m currently monitoring the third trial in the case of Knox [coming up] and the notion of appeal is an interesting one. Does only the defence get to appeal or can the prosecution appeal too? In Italy, the latter is now happening, though on points of law.

    This is different to the law being changed in the interim and people being hauled in who weren’t under the former law. Perhaps this last point is the critical one.

    • January 4, 2012 at 12:12 am

      Yes, I think the last point is particularly important, but on the whole I don’t think it’s a good idea that the prosecution gets to appeal verdicts it’s not happy with. Sentences, yes, and that’s possibly something that isn’t done often enough. But I’m not comfortable with the Crown wanting another go when it’s failed to prove its case. Doesn’t sit well with the idea that it’s better for ten guilty people to go free than one innocent being imprisoned, which already happens as it is.

  10. January 3, 2012 at 8:17 pm

    The news item I saw suggested that the evidence was reviewed to apply DNA testing – which was not available first time round – and hence was treated as new evidence. Which is not quite the same as holding repeated retrials until they get the right answer.

    • January 4, 2012 at 12:29 am

      You’re looking at the specifics of this case rather than the principle of the prosecution getting multiple attempts to convict whoever they believe is in the frame. Yes, advances are made and new techniques developed all the time, and insufficient evidence now may become convincing evidence in ten years. But this isn’t an argument for the prosecution to get another go when it’s once failed to prove its case but an argument for it not to prosecute unwinnable cases in the first place. They have that 51% rule for a reason. Put another way, if the CPS had kept its powder dry and refused to prosecute, and this was the first trial now, then there wouldn’t be an issue and we wouldn’t be talking about this because it’d be just another murder trial, albeit one that took a long time to come about. There’s also the problem that evidence against someone who’s acquitted could potentially be manufactured in order to get the desired result that the first trial didn’t achieve, though that would still apply if prosecutors resisted the temptation to go to trial with a weak case to begin with. On the whole I think this can of worms would have been better left unopened, though the people who’ve been beating the PC drum on this in order to get Stephen Lawrence’s murderers mightn’t agree until a few black kids have been acquitted before being retried and then jailed. As the old saying has it, we should be careful what we wish for in case we get it.

      • January 4, 2012 at 7:37 am

        “There’s also the problem that evidence against someone who’s acquitted could potentially be manufactured in order to get the desired result that the first trial didn’t achieve…”

        Especially if you send it out to a private lab, if you know what I mean… :twisted:

  11. Mudplugger
    January 3, 2012 at 8:46 pm

    Along with most here, I am uncomfortable with this situation.

    Although I did not sit through the trial or hear all the evidence, it seems a reasonable bet that the two in the dock were adequately involved in the crime. But justice should be about more than a ‘reasonable bet’.

    Ever since the inception of the CPS there has been a reluctance to bring prosecutions unless absolutely convinced it would succeed – that may make some economic/resource sense, but that’s not what justice is about. There are cases which should be put before a jury because that’s the right thing to do, regardless of whatever bonus scheme the CPS operates for its success-ratios. A current example is the Chris Huhne case – the only way to establish any credibility of result will be via a public jury trial, any other outcome will be greeted with cynicism, so just get on with it.

    Had the Lawrence murder resulted in an officially-prosecuted case from the outset, we wouldn’t be where we are today, another few joint murderers wouldn’t be where they are today and we wouldn’t have lost a key tenet of our legal system merely to quell the opportunist racket from the ‘race industry’. We have lost far more than we gained in this one.

    • January 4, 2012 at 12:36 am

      I think you’re a little unfair on the CPS, there. As far as I know the policy has always been that if they think the case has a 51% or better chance of being won they’ll prosecute. It’s a subjective standard, to be sure, but where there isn’t going to be a guilty plea it’ll always come down to a reasonable bet on their ability to convince the jury. Other than that I agree. The Lawrence case has been a minefield and either should have been prosecuted properly the first time around or, if poor investigating made this impossible, should not have been prosecuted at all until the evidence was good enough. The changing of the law, it’s retrospective application to this case and the quashing of an acquittal made at a trial brought about from a private prosecution is the prosecution having their cake and eating it.

  12. Snooperman
    January 3, 2012 at 8:49 pm

    My suspicion is that the political and legal establishments went for the abolition of double jeopardy to try to prevent ordinary people realising the power of cat-and-mouse prosecutions. The penalties actually imposed for murder are so light and the penalties available for attempted murder so heavy that it should have been worthwhile to try Dobson and Norris for attempted murder.

    Then we could perhaps have cat-and-mouse prosecutions of IRA terrorists released under the Good Friday Agreement.

  13. Daedalus
    January 3, 2012 at 8:52 pm

    The old double jeopardy rule should have made sure that the case was firm before it ever went to court. Why it didn’t I have no idea, was it really a case of the police not bothered, who can really say after all this time. The trouble with getting rid of it is that now there is no need to really make sure they have everything ready as they can go again. Totally wrong!!!!!!!!!

    Daedlaus

    • January 4, 2012 at 12:39 am

      I think Jaded mentioned it: hijacked by the race relation industry which pressurised the CPS, which probably saw that the brush of institutional racism had plenty of tar left on it, into a trial it was highly unlikely to win.

  14. RumSot
    January 3, 2012 at 9:00 pm

    Just for a moment assume that these two are innocent of the crime and that this verdict is the result of 18 years of political and media pressure. Pressure which has no doubt had a large impact on their lives.

    Would they not have been better off with a guilty verdict 18 years ago? They would have been out by now. Surely the temptation is for innocent people accused of politically sensitive crimes to simply offer no defence? After all they’re going to be pursued until the authorities get the ‘right’ verdict regardless. Personally I think that double jeopardy was the lynch pin that kept our judicial system fair and balanced; without it we no longer have a fair system of justice.

  15. Damo
    January 3, 2012 at 9:11 pm

    And what about European arrest warrants?

    link to bbc.co.uk

    • January 4, 2012 at 12:39 am

      :shock: Didn’t think of the EAW. Two bad things combining to make the whole worse than the sum of its parts.

  16. Mudplugger
    January 4, 2012 at 9:40 am

    An aside.

    After the initial failed prosecution, surely the defendants would have been entitled to the return of all their property which had been held as evidence. Had they recovered their clothing from the Police Evidence Store, it would no longer have been available for further forensic testing and, as double jeopardy applied at that time, there was no valid reason for Plod to retain it.

    An interesting lesson for anyone cleared of any offence in the future.

  17. Lord T
    January 4, 2012 at 1:12 pm

    I wonderif we will be revisiting all these cases where a black person has been cleared by lack of evidence?

    On the plus side the percentage of blac people in jail is higher than their percentage in society. I hope that they are all happy now that we will be able to retry them every time we get a result we don’t like.

    The justice system is going to grind even slower than it does and with many more miscarriages, and appeals, than ever before.

    • January 5, 2012 at 3:09 am

      I was thinking along similar lines. When some poor black kid is fitted up, acquitted, banged up on the second go, and finally released on appeal years later when the miscarriage comes to light, I hope the right on realise that it was all made possible because they changed the law so they could get someone for the murder of a black kid. Probably not.

      • January 5, 2012 at 6:00 am

        There was a black “friend of the Lawrence family” on BBC Radio 2 yesterday, he said (paraphrase) “The Community are worried about the double jeopardy thing but in this case it got a result so we’ll go with it”.

        I expect The Community might come to regret that.

        • January 5, 2012 at 6:21 am

          /headdesk
          /headdesk
          /headdesk

          I expect The Community might come to regret that.

          I think you’re probably right. What really make me despair here is that I usually moan that people want the law changed without fully considering how the change might be abused or used against them. Here it seems that someone has considered that very thing and then said, ‘Fuck it, let’s take our chances’ anyway. :???:

  18. Sackerson
    January 4, 2012 at 6:52 pm

    Potentially, a great way to tie up political opponents indefinitely, if the judiciary forgets its independence. Imagine month after month, year after year re-preparing your defence and perhaps forbidden to leave the country or even the local area. And as the IRA told the Thatcher government, you have to be lucky every time, we only have to be lucky once.

  19. January 5, 2012 at 6:05 am

    The Establishment were determined to get these two (and I’m happy that they did) because A. they caused them extreme embarrassment (cf Ronnie Biggs) and B. feeling they had great public support (rightly or wrongly) they have used it as an excuse to introduce double jeopardy with all the dire consequences already mentioned.

    Personally I disagree that a ‘racial’ motivation makes one murder worse than any other but the case provided a great boost to the whole Hate Crime industry upon which the promotion of so many senior police officers now depends.

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