Note: Since this article is almost a decade old, it can surely have no bearing on any matter currently before the courts. SIG
Free Life Commentary,
an independent journal of comment
published on the Internet
Issue Number 67
26th June 2002
Why the Double Jeopardy Rule
Should not be Changed
by Sean Gabb
In a speech given last week, Tony Blair announced that the Government is to change the double jeopardy rule, so that an acquitted person may be tried again for the same offence.(1) The relevant Bill has yet to be published, but will most likely follow the recommendations made three years ago by the Law Commission.(2) If so, the change will in the first instance be limited. The courts will probably be able to set aside an acquittal in these circumstances: where the offence was very serious—the Ministers all promise that the change will apply only to murder—where new evidence has emerged that was not available or reasonably obtainable at the first trial; where this new evidence greatly strengthens the prosecution case. We are also told that the changed rule will allow only one more trial, and that an absolute bar will remain to repeated trials for the same offence.
In his speech, Mr Blair came out with the usual New Labour smokescreen of presenting every change as a “modernisation”. We need, he said, to take a legal system fashioned in the 19th century and make it suitable for the 21st. Of course, circumstances do change over time, and institutions that were suitable in one age may not be so suitable in another. But there is more than just pragmatism in this New Labour talk. It is a vital part of “the Project” that changes should not be discussed in terms of first principles—whether the ideas being advanced are true or false. They should instead be presented as new and modern. The intended—and usually achieved—effect of this is to cast opponents as defenders of the old and “outmoded”. This done, the changes can be carried through with minimal discussion, and with the support of people who seldom care what they are doing, so long as they can feel charged with the warm glow of doing something “progressive”.(3)
A subsidiary point made in the speech was that the time has come to put the rights of victims before those of defendants. This is another smokescreen put up to prevent rational discussion. It sets debates in terms of bold reformers grappling as best they can with huge problems, against legalistic pedants who do not really believe in punishing criminals. Unlike the “modernisation” talk, this is not a move confined to Labour. It was used for a generation by Conservative Ministers every time they wanted to push the country a little closer to a police state.
In this kind of debate, the double jeopardy rule is presented as a bar to the efficient prosecution of criminals. A trial may end in acquittal because a jury has found a verdict contrary to the evidence, or because fuller and better evidence subsequently comes to light. According to something called the National Crime Faculty, there are currently 35 people walking around free who should be in prison for murder, but who cannot be touched because of the double jeopardy rule.(4) Just as a defendant has a right of appeal if the original trial goes against him, it is said, so the prosecution should be able to appeal against unjust acquittals.
However, the double jeopardy rule is neither “outmoded” nor legalistic pedantry. It is an important procedural safeguard for the very reason alleged against it.
In any system of criminal justice, the prosecuting authorities will have a large and permanent advantage over an accused person. They can choose whether, what, when and how charges should be brought. They have unlimited money and access to the best lawyers. They are usually more intelligent, and always more experienced in the workings of the system, than a defendant. So far as the media and many judges and magistrates—and even many juries—are concerned, there is a certain bias in favour of the authorities; and the evidence of a police officer will often be heard with greater respect than that of a defendant.
It is to offset these advantages that civilised countries allow a systematic bias in favour of the defence. On the whole, English law and those systems derived from it contain the most developed bias. There is habeas corpus, to prevent a person from being held in captivity without charge or conviction. There is the presumption of innocence, so that the whole burden of proof falls on the prosecution, and that any substantial defect in the prosecution case must lead to an acquittal. There is trial by jury, to ensure that judgments of guilt or innocence shall be made by a defendant’s peers, and not by a judge employed by the Crown. And there is the double jeopardy rule, to ensure that an acquittal is the complete end of a prosecution, and that a defendant need not live under fear of being tried again before a different judge and jury or in a different climate of opinion.
Of course, the current proposal is not to abolish the double jeopardy rule, but simply to amend it. As already said, the proposal is to allow the prosecution one extra chance of getting a conviction, and then only on the production of compelling new evidence. Moreover, while the European Convention on Human Rights—now enacted into English Law—allows prosecution appeals so far as is now proposed, it does not allow any more than that.(5) It is said that this will be a largely technical change that will have no adverse effect on the general protections of freedom in this country.
In replying to this, there are four main points to be made:
First, departing from a rule frequently means making a new rule. We have seen this in recent years with the presumption of innocence. The Drug Trafficking Offences Act 1986 equalised the burden of proof as regarded confiscation orders against drug dealers. It became possible to take the assets of convicted persons without needing to prove the source of those assets beyond reasonable doubt. We were told at the time that this was an exceptional change from the fixed rule justified by the special needs of the war on drugs. Within two years, however, a Criminal Justice Act was passed that extended this confiscation procedure to the assets of all persons found guilty of a serious crime. Today, we are on the verge of accepting the full American system of civil asset forfeiture—in which assets can be confiscated on suspicion, and it is for the owner to sue for their return.
What has happened here could easily happen with the double jeopardy rule. When the matter was extensively discussed last year, a Guardian editorial suggested that the change should apply not just to murder, but also to manslaughter and rape.(6) As for the limitation of one extra trial only, I do not see that lasting more than a few years. If it is worth setting the rule aside for the purpose of allowing one more trial, there is no principled reason for setting it aside for a second or a third trial. It needs only the right case and the right outage in the media.
Second, though presented as a domestic change, relaxing the double jeopardy rule is best seen as part of the creeping abolition of our ancient laws and their replacement by those of the European Union. For several years, European Union bodies have been discussing the Corpus Juris, which is the draft of what may become a single European system of criminal justice. If adopted, this would set up a European Public Prosecutor on the continental inquisitorial model. This person would have an overriding jurisdiction throughout the European Union, to instruct national authorities to issue arrest warrants, to have suspects to other countries in Europe, and to hold them in detention for up to nine months without the need to produce evidence of a crime and with no right to a public hearing. Trials are to be held before professional judges sitting alone, ‘and not simple jurors or lay magistrates’.(7) And so there is no place in this new system of law for either habeas corpus or for trial by jury.
Nor is there any real place for double jeopardy. Article 27(2) reads:
In the case of total or partial acquittal, appeal is… open to the EPP as a prosecuting party….
When the Corpus Juris is finally imposed from Europe, there will be strong resistance in this country. That resistance, however, will be less effective if what we are defending in the case of double jeopardy is a rule that has already been at least once relaxed—and apparently done for our own reasons.
Third, relaxing the double jeopardy rule will tend to complete the abolition of trial by jury. When a person is brought to trial a second time for the same offence, the jury will know that it is because of unusually compelling evidence against him. There will be a presumption of guilt. It is claimed that reporting restrictions would prevent this from happening, and that a jury would not even know they were retrying a case.(8) I cannot believe this to be a serious argument. Admittedly, juries now retry cases where a juror has died or where a previous jury has failed to reach a verdict. But there is a difference between these instances and a full retrial, which must inevitably have been discussed in the media long before the impanelment of the second jury.
Bearing this in mind, and also Article 6 of the European Convention, which guarantees the right to a fair trial, it will probably be necessary to take retrials away from juries and give them to judges sitting alone. They will be better able to set aside the natural presumption of guilt. At the same time, we shall find ourselves subject to heavy punishment without the benefit of trial by jury. In the purely technical sense, of deciding the truth or falsehood of alleged facts, this might not be disastrous: there is no reason to doubt that judges are better at reaching true verdicts than juries. What makes juries so important, however, is that when all serious cases must go before them, political or vexatious prosecutions, or attempts to enforce unjust laws, become much harder. One reason, for example, why the authorities are considering a relaxation of the drug laws is that it is becoming increasingly hard to get convictions where simple possession is concerned. Therefore, an effort to reduce individual miscarriages of justice, will very likely result in the enabling of systemic injustice.
Moreover, even if trial by jury is not abolished, changing the double jeopardy rule will remove one of the main benefits of trial by jury. This is the right of a jury to acquit in the face of the evidence. Juries have used this right in England and America for hundreds of years to nullify bad laws. So far, the right has been effective because the authoriities have only one chance at getting a conviction. Change the double jeopardy rule, and acquittals can be appealed by the simple process of alleging new evidence.
Fourth, the authorities are already bad at investigating crimes. The police are recruited from the most stupid reaches of the population, and are then trained in a culture of brutality and petty corruption. They are joined by a Crown Prosecution Service filled with lawyers of two kinds. There are those so useless that they might have trouble in private practice earning enough to pay for their wigs and gowns. Then there are those with a taste for messing up other people’s lives that cannot be fully satisfied in private practice. With these people in charge of law enforcement, the wonder is not how many cases are bungled or unjustly brought, but how many are not. Take away the double jeopardy rule, and they will lose what little incentive they have to assemble decent prosecution cases. If they can try again—and perhaps again after that—why bother making the effort to get it right the first time? Why bother even trying to get it right? As Sir Michael Davies, who used to be a High Court Judge, asked, “Are we going to get a situation where the police and the CPS sometimes say, ‘Well we haven’t got much of a case, let’s have a go, we may pot him, if we don’t we’ll find something else in five years’ time and we can have another go’.”(9)
If there are 35 possibly unsafe murder acquittals at present, there may be several hundred unsafe acquittals for other crimes. After the proposed change to the double jeopardy rule, we can expect these numbers to rise enormously—and the finality of criminal justice to decline to the point where all acquittals become merely provisional.
As said, the debate over things like the double jeopardy rule is normally set up as a contest between those who want to do something about crime and those who do not. The appropriate response is to reject the terms of debate and try to show how crime can be reduced without taking away from our fundamental rights. The sort of reforms needed are rather obvious. We need to reduce the number of crimes to those that actually harm life and property. Immense amounts of police time are presently taken up with enforcing the drug laws, and the prisons are crowded with drug offenders. Let drugs be legalised, and there would be an immediate freeing of resources for catching and punishing real criminals.
At the same time, there should be an increased severity of punishment. Once only real criminals could be brought into court, they could be made subject to real punishments. Threaten the criminal classes with heavy fines, or with long prison sentences—or even with the death penalty—and pay more attention to catching criminals, and there would be a diminution of crime.
Then there is the needed reform of the law regarding self defence. A friend of mine recently heard from a taxi driver, how he had nearly been hijacked by a crowd of thugs who stood in front of his car and tried to break through his side windows. The driver accelerated out of the crowd, crushing a few feet as he did so. When he called the police, he was told that he would be arrested and charged with assault occasioning actual bodily harm if any of the thugs chose to make a complaint against him. All over the country, householders are prevented from defending their lives and property by fear of going to prison if they try too effectively. Remember Tony Martin, the farmer still in prison for the bizarre crime of murdering a burglar. There is a law that needs rebalancing in favour of the victims of crime.
These are changes that might reduce crime and the fear of crime to levels last seen in the 1950s. And they could be made without touching a single one of the rights that our laws have anciently given to defendants. The shame is that we have political and media classes that are determined not to let the debate on crime drift away from its present construction of reformers against “the forces of conservatism” or of a supposed polarity between victims’ rights and criminals’ rights.
All we can really hope is that the Judges will use the powers they have lately taken to themselves to set aside unconstitutional laws. The European Convention is vague about the double jeopardy rule—but that may be no bar to a determined search by the Judges. Earlier this year, they found that—notwithstanding the clear wording of the Weights and Measures Act 1985, and the equally clear rule giving this precedence over the European Communities Act 1972—we have a constitutional right to have the metric system rammed down our throats. If the wording of their judgment is to have more than an occasional or partial meaning, it may be up to them to tell the politicians about our right to a continued double jeopardy rule. Otherwise, the politicians will have their way, and we shall have lost yet another ancient and important protection against the ubridled power of the State.
1. Tony Blair, speech, “Rebalancing the Criminal Justice System, given on the 18th June 2002—available on the Labour Party website, www.labour.org.uk
2. The Law Commission, Double Jeopardy: A Consultation Paper, Consultation Paper No. 156, Her Majesty’s Stationary Office, London, 1999.
3. See, for example: “Most accept… the reforms should be practical, based on common sense, not on an outdated ideological debate”, Tony Blair, speech of 18th June 2002.
4. David Bamber, “Straw aims to scrap ban on retrial of murder suspects “, The Sunday Telegraph, London, 5th November 2000.
5. European Convention on Human Rights, Protocol 4, Article 7:
No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has been finally acquitted or convicted in accordance with the law and penal procedure of that State.
The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.
6. Leading article, “Tried twice over: It is time to scrap the double jeopardy rule”, The Guardian, London, 7th March 2001.
7. Article 26. The whole text of these proposals together with a commentary on them is available as follows: Mireille Deams-Marty (Director), Corpus Juris: Introducing Penal Provisions of the Purpose of the Financial Interests of the European Union, Economica, Paris, 1997, ISBN: 2 7178 3344 7.
8. Leading article, “Tried twice over: It is time to scrap the double jeopardy rule”, The Guardian, London, 7th march 2001.
9. From the BBC Today programme—quoted, Patrick Hennessy, “Judge attacks Hague over axing ‘double jeopardy’ law”, The Evening Standard, London, 15th May 2000