Downloading PDF. Please wait... Issue 2288

The dangers of double jeopardy

This article is over 9 years, 11 months old
The Stephen Lawrence verdict was right, but we should be cautious of re-trials, writes Brian Richardson
Issue 2288

Every decent person will have rejoiced at the conviction of two of Stephen Lawrence’s murderers.

The loss of their son and brother is irreplaceable, but at least his family have received some justice for their dogged and determined campaign.

In the wake of that verdict, a number of commentators have praised the law change that resulted in one of Stephen’s killers, Gary Dobson, being hauled back into the dock.

Historically the “double jeopardy” rule prevented someone being re-tried for an offence that they had previously been acquitted of.

If that rule still applied, Dobson could not have been re-tried—he’d been found not guilty in 1996.

Among those hailing the demise of double jeopardy are Daily Mail editor Paul Dacre.

But socialists should challenge that chorus of approval.

Lawyers and grassroots campaigners didn’t call for the abolition of double jeopardy at the Stephen Lawrence Inquiry in 1998.

And there is now a very real concern that, instead of investigating matters thoroughly, the police will simply harass, bully and round up the “usual suspects”.

That in turn could lead to unreliable confessions and convictions based on weak evidence.

Even where suspects are acquitted, many would live in fear of being hauled into court again.

And knowing that the defendant has been before the courts before may influence juries at re-trials.

Despite these dangers, reform to allow for a re-trial where “fresh and viable evidence is presented” was one of the recommendations of Macpherson’s report into Stephen’s death.

This was adopted and implemented by New Labour.

Today, the change only applies to a small number of very serious offences and any application to overturn an acquittal is examined by the Court of Appeal.

These requirements supposedly act as a safeguard against frivolous or vexatious applications. Before Dobson could be re-tried, therefore, the Court of Appeal had to scrutinise the evidence upon which he was ultimately convicted.

But had the police done their job properly back in 1993, Dobson and Norris could have been convicted then.

Moreover, had the murder been investigated properly, it might have netted all the suspects rather than just two. We may now see a clamour for further reform of the double jeopardy rule.

Recent changes in the law have already made it easier for criminal courts to rely upon previous convictions and the evidence of absent or even anonymous witnesses.

The government is also considering further restrictions to a defendant’s right to trial by jury and, of course, legal aid is being slashed.

The Stephen Lawrence trial has also highlighted the controversial issue of joint enterprise.

The jury that found Dobson and Norris guilty did not have to be convinced that either of them actually wielded the knife that killed him.

They were convicted on the basis that the attack on Stephen was carried out by a gang of which they were a part. It was also found that the attack was deliberate and concerted, and that the person who stabbed him did so with their knowledge and approval.

There is widespread concern amongst lawyers and activists that this is being used indiscriminately and leading to the overcharging of young people.

The law is complex. It employs concepts such as “tacit agreements” and liability for acts that they “contemplate” others committing.

It also says defendants need to show a certain level of what is called “effective withdrawal” from the situation if they are to mount a successful defence.

The overuse of this law led to calls for a change from lawyers and activists.

The current director of public prosecutions, Keir Starmer, made his name as a progressive human rights barrister.

But we can’t rely on him. Campaigners must keep up the pressure to ensure that the new guidelines he has promised take into account these concerns.

The fancy Latin language of the legal system is a sham. The courts have never provided an “equality of arms”. Instead they have been used against poor and oppressed.

Any further erosion of a defendant’s rights, including a wider abolition of double jeopardy, will tip the balance even further.

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