Disposable double jeopardy

Having stuffed up the RSS readers of anyone unlucky enough to be on the feed when I altered all those posts I feel I owe some sensible comment as well as apologies. Unfortunately it’s late, it took me much longer than I expected, and I really need to get to bed so I’ll be brief. 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!”