Double Jeopardy Law to be Axed

Great Debates
#1

The so-called “Double Jeopardy” Law, which states that noone can be tried twice for the same crime, is set to be disbandoned for murder cases in the UK.

A little bit of history to set the scene:

A few years ago a young, black teenager called Stephen Lawrence was killed by a group of men. The police, sad to say, didn’t take the case as seriously as they should have done - I believe that there was a tacit assumption that it may have been gang-related. Of course, it was no such thing. Rather it was a racially motivated murder carried out by a bunch of racists. The thing was, the police screwed up the case so much that the murderers were able to successfully avoid prosecution. They were later successfully prosecuted in a civil trial and IIRC have admitted guilt. But they are not in jail.

An inquiry led by Lord McPherson was set up into the way the police handled these affairs. I note in passing that amongst other things he declared that the police force was “institutionally racist” - the systems in place had inherant disadvantages in them working against ethnic minorities. That however would be another debate.

But germaine to this debate: Lord McPherson also found that the double jeopardy law should be repealed in respect of certain cases.

The Law Commission then took this on board. After 20 months they have concurred and it looks as if will soon be possible to quash acquittals in murder trials where there is “reliable and compelling new evidence of guilt”.

So what do you lot make of this? Is the double jeopardy law a vital cog in our justice system that prevents police harassment? Or does it just prevent justice from taking place? I myself must admit to a certain ambivalence on this matter and could be swayed either way.

pan

#2

Just to highlight some of the arguments in the BBC news link:

(The report) “also controversially suggests that the new law should apply retrospectively”. There are suggestions, however, that this could be a breach of human rights.

John Wadham, director of civil rights organisation Liberty: “we increase the chances of innocent people being convicted if we remove it”.

Defence barrister Geoffrey Robertson QC has welcomed the call to allow second trials but said it was “irrational” to confine the change in the double jeopardy rule to murder trials and exclude “repetitive, professional” crime like armed robbery.

Michael Napier, president of the Law Society which represents 80,000 solicitors in England and Wales:
“The police may not, if the double jeopardy rules are repealed, carry out thorough and effective initial investigations, relying on the fact that there could always be a second chance of prosecution even if the first case fails.”
pan

#3

**

In the United States we’re protected by the Constitution from doubly jeopardy. We’d have to make an Amendment to the Constitution to repeal that particular protection which isn’t likely to happen any time soon.

Sure it is a vital cog in the justice system. Being charged with a crime and going through the trial can be emotionally and finiancially draining. Not only do lawyers cost money but a lot of people can’t work while they’re tried on criminal charges. Now imagine if the state could keep sending you to trial at their leisure. Pretty soon I bet you’d see a whole bunch of plea bargains and their rate of prosecution going up.

England should keep their subjects protected from double jeopardy just like we in the United States do. In fact I would think that we got the idea from you guys in the first place. It sounds to me like some politicians are just talking out their arses to sound good to their constituants.

Marc
Marc

#4

But Marc - what about if you kept the requirements for a second trial very strict indeed? If they were only allowed if very significant new evidence had come to light that manifestly cast in doubt the original aquital?

That would surely keep nuisance prosecutions down to a bare minimum?

pan

#5

I would say that at the very least, there would have to be a requirement to show a good reason that the evidence could not have been presented at the first trial. Otherwise, the Crown isn’t exactly motivated to present all the evidence to get a conviction the first time around, which might be an advantageous tactic to exhaust the accused’s financial resources.

Another requirement would be to show that the new trial has a high likelihood of getting a conviction before the trial starts. Even if there is new evidence, that doesn’t mean that the case has merit. It would be quite wrong to subject the same person to multiple trials every time new evidence is found.

Basically, the sheer number of qualifiers required to protect the rights of the innocent are probably going to make the whole thing rather difficult to pull off.

(Sorry if this double posts, but I don’t think it will)

#6

<tracer points at the U.K.'s lack of the equivalent of the U.S. Constitution’s 5th Amendment>

<Nelson from The Simpsons>
Ha ha!
</Nelson from The Simpsons>

#7

But we already have strict standards for bringing people to trial. If you can’t convict someone the first time around I’m not about to let you have another crack at it.

Marc

#8

The Metropolitan Police screwed up the investigation to the point where the Crown Prosecution Service refused to bring a prosecution. They had some evidence against the suspects but, in their opinion, not enough for a conviction. The Lawrences brought a private prosecution which was essentially thrown out of court. I don’t know what the legal term for it is, but the judge instructed the jury to return a not guilty verdict, effectively rendering the defendants immune from further prosecution.

I can understand why Macpherson made the recommendation he did, but IMHO he was acting outside his terms of reference and it’s an exceptionally bad idea to impinge significantly on the rights of all accused people because of one bad case.

The problem in the Lawrence case began and ended, more or less, with police incompetence, racism and possibly corruption.

We do have an equivalent of the US’s 5th Amendment. The difference is that there is no distinction in terms of amendability between constitutional and non-constitutional laws in Britain, so Parliament can do away with the double jeopardy provision as easily as it can change the penalty for speeding.

Congress could do away with the 5th Amendment if it wanted to, couldn’t it? I realise that it would be politically difficult, but it’s going to be politically difficult here too.

#9

Plus it would completely ruin that Ashley Judd/Tommy Lee Jones movie. :wink:
[sub]Somebody had to say it, and dammit, I wanted it to be me[/sub]

On topic, I have a great deal of concern about how it would be used and abused. It seems like it lets the nose of the camel into the tent, and it will be hard to keep the rest out. Initial constraints on it’s use could be slowly eroded.

On the other hand, if there was new evidence that was unavailable and not just overlooked or ignored, I can see the appeal. For example, convicting someone based on DNA testing that had not been invented at the time of the first trial.

Still, probably a bad idea, overall.

#10

[QUOTE]
*Originally posted by TomH *
**

Not just politically difficult but probably realistically impossible barring a string of major, major blunders in prosecution. And OJ isn’t major enough.

A Constitutional amendment can’t simply be repealed by statute (though Congress has tried an oblique runaround on this more than once, and has and will be shot down most times by the Supreme Court). It requires another Constitutional amendment to do so.

To amend the Constitution, 2/3 of both houses of Congress have to approve. Most of the time, getting a 2/3 majority on any subject out of Congress is impossible.

Assuming that there’s enough political capital in the amendment to get it passed, it then goes to the states, 38 of which must approve it before it’s accepted. Again, getting 3/4 of the states to legally agree to even generally popular things is extremely difficult.

It’s hard enough to get a regular new amendment ratified. I can’t imagine it being easy to get a repeal amendment. We only have one, the repeal of Prohibition. And we’ve been smart enough not to put the modern Prohibition (the “Drug War”) on a constitutional footing. We do learn from our mistakes…just awfully slowly.

#11

(hope the quote works out right)

TomH, what is a private prosectution? Is this a criminal prosecution initiated by the family of the victim?

If so, this sounds just as bad as removing double jeopardy.

#12

Thank you for tuning in to this week’s special episode of Educating TomH.
If perhaps he or someone else could explain “private prosecution” we could return you to your regularly scheduled program.
For me, I follow along with waterj2’s approach.
I would add the extra stipulation that the state must assume financial burden of the defense. Unless the accused hired the “Dream Team” the first time around, the state should be expected to pay more than the cost of the original defense.

*No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. - John Marshall ( McCulloch v. Maryland )

#13

Of course, as the article mentions, once you start stipulating that the case has to be approved as being likely to succeed ahead of time, which is necessary to prevent abuse, you start working against the presumption of innocence. The jury knows going into the trial that it has already been decided that the defendant is most likely guilty. The only way this could work is if you set up a system like Scotland’s where someone can be found “not guilty” without exactly being exhonerated. But that leads to problems with the idea of being “innocent until proven guilty”.

With characteristic American distrust of government, I don’t see how this system could be implemented without giving the government new powers over the people. Sure, it seems noble, and we’d all like to think of the government as honest, but look at what happened when the British decided to crack down on terrorism in Northern Ireland. The populace wanted convictions, so innocent people were forced to spend 15 years in prison.

#14

I see this as another “where do you draw the line?” issue, and being a raving civil libertarian, am against repealing double jeopardy protection. Even if you have protections and guidelines there, the potential for abuse by the government still exists.

As a side note, in the US, many criminals who were acquitted at the state level of crimes for which they were obviously guilty have been successfully prosecuted by the federal government for “violation of civil rights.”

#15

I understand the temptation completely… OJ springs IMMEDIATELY to mind…ahem.

But in the big picture, I think double jeopardy is crucial to our system of justice. The potential for abuse is just too great. And we must always remember that the real guiding principle by which the Founding Fathers wrote our constitution was protection of the individual against a tryrannical State. So that should be the standard that we look to when evaluating these sorts of things.

(I know that this is happening in the UK, but I took the OP to be asking about how DJ works in the States)

#16

Actually no, Stoid. I was more considering the basic concept of “thou shalt not prosecute someone twice for the same crime”. Personally, I would prefer to talk of it in a UK context as this is where it is potentially about to be scrapped. I understand however that the predominantly US contingent here will probably prefer to talk of it in US terms. Doesn’t really matter - we are still talking of the same thing. I can only plead that US posters don’t get too hung up on the 5th Amendment prevention of such a thing happening over there.

Like most posters here, I myself am also leaning towards the “bad idea to scrap it” side of things. I too have an intrinsic fear of giving the government too many powers. But could this not just be paranoia on my part? We trust the criminal justice system with so much already, would this not actually be a minor thing in comparison to the already existing potentials for abuse? Does a civilized society not demand a cjs it can trust and should we not then show that we trust it?

The fears about the possibility of abuse are indeed quite a forceful argument. But to look at things the other way round: isn’t it rather silly that if overwhelming new evidence comes to light, we aren’t allowed to go after those manifestly guilty? If it is plain that it would be very difficult to obtain permission to persue a second prosecution, surely fears of this kind are rather… well… almost superstitious.

In particular:

Marc

Not letting me have another crack at it? Even if I have overwhelming new evidence that wasn’t available at the original trial?

Tom

Thanks for correcting my recall of exactly how the events went. I just remembered the case being thrown out due to police screw-up.

And to those asking - a private prosecution is exactly how it sounds. The CPS feels that it has no chance of a conviction and refuses to prosecute so the affected private party takes it upon themselves to prosecute.

waterj

The overcoming of the presumption of innocence is a powerful argument and one I hadn’t previously considered. You’re right - the jury would be prejudiced knowing that the evidence for a conviction would be “overwhelming”. I’m not sure that the below counters are enough. They still leave the fundamental problem of this eradication of the presumption of innocence.

Nevertheless, consider:[list=A][li]surely your argument holds for all cases where the CPS decides to prosecute. The jury knows that the CPS must have very strong evidence; and[/li]
[li]if the evidence really is that overwhelming to allow the second prosecution, guilt must be obvious anyway. Hence this facet of the jury’s state of mind will be less relevant - with such evidence, even if they started out convinced of innocence, a guilty verdict would stil be inevitable.[/list=A][/li]
pan

#17

jayjay, 2sense,

I know what the procedural requirements are for a Constitutional amendment in the US. 2sense explained them in the train wreck that is the Hillsborough thread. My point is that we do have a double jeopardy provision in England and Wales, it’s just easier to change it.

A private prosecution is a prosecution brought by a private individual, rather than by the Crown Prosecution Service. It’s not that uncommon in England.

I can’t find anything from England, but here’s some advice from a Canadian law firm about how to bring one.

Why?

#18

I was wondering if a susequent confession, after having been found innocent of a crime, would constitute ‘substantial new evidence’?

#19

As a stand-alone suggestion, removal of double jeopardy rules for extreme cases may not appear too dangerous- after all, IIRC most Napoleonic Code countries have some type of double jeopardy, as Justice rather than Fairness is seen as more important.

However, in England, with no constitutional restriction on the power of parliament, rights to justice have been continually eroded over the past forty years.

It may be a shock to Americans, used as they are to entrenchment of rights, that Governments in Britain have ensured that:

1/ There is no right to jury trial for most cases in Britain. The Government is proposing further restrictions to cases which will in future only be only heard by government appointees who may be removed by government fiat-magistrates.

2/ Because of problems with recalicitrant jurors, two members of a jury can find you innocent, but you will still be guilty.

3/ The prosecution has virtually unlimited rights to object to jurors with no cause; the defendant’s lawyers have extremely limited rights.

4/ The Government has quite wide rights to decide which evidence which might be awkward for the government, should be witheld.

5/ One person, a political appointee, appoints all judges with minimal oversight and no set procedure.

6/ One person takes decisions on the length of murder ‘life sentences’; this person is a politician and not a judge.

7/ Jury selection is almost engineered to ensure that few ‘professional’ people are required to carry out jury duty. Jurors are largely those people who were not clever enough to avoid such service. This leads to juries which often tend to be subservient to the prosecution case.

8/ It is totally illegal to research any action of jurors in a meaningful way, and it is illegal for jurors to disclose any of their anxieties about how decisions were made.

Because of the lack of entrenched rights, anything is possible in English law. However, the acceptance into British domestic laws of the European Convention on Human Rights will see several of the above anomolies exposed to outside review over the next few years. Items 4 5 and 6 are currently undergoing this process; some of the others will follow. But even if the European Court finds against the government, they will still be free to ignore such decisions if they think that they can get away with it.

#20

Unles we are assuming that our respective (england’s and usa’s) legal systems are completely batty, inefficient, and corrupt, I see no reason to overturn the double jeapardy restriction.

There is little doubt in my mind that convictions are largely successful with it, and that the few who slip through the cracks, as horrific as they may or may not be, are pretty much not worth changing the whole course of convicting people.