Thursday, 2 June 2011

Changing the Double Jeopardy Law was a Grave Error

This is the sort of discussion which I was hoping would become a regular occurrence at OutspokenRabbit, with two of our writers in profound disagreement about a topical issue. In his post, 'the Inadequacy of Adversarial Justice', Malpoet argued that, "the double jeopardy rule must be discarded" and, referring to the fact that cases were re-opened due to 'new and compelling evidence' after the 2005 amendment, that "the rule needs to go completely". I'm here to put forward the opposing side of the argument, namely that the old laws on double jeopardy were in place for a very good (while not universally popular) reason and that the change in the law, while if not implemented would have resulted in some heartbreaking anomolies, was a mistake.

Firstly it is worth asking Malpoet what he means when he states that, "the rule needs to go completely". While I understand (but don't entirely agree with) his point about the inadequate outcomes of trials that collapse due to procedural errors, my understanding of the current legal situation would appear to be as far away from my viewpoint as any sane and reasonable man would wish it to be. A defendant who has been acquitted can currently be re-tried for the same offence if 'new and compelling evidence' comes to light and passes a sufficient threshold to shift the pendulum back in the direction of a safe conviction.

Now if we assume that the procedings did not represent a mistrial and that no jurors were bought off, I struggle to see any case whatsoever, even one I cannot agree with, for trying a man twice on essentially the same evidence. This reduces the judicial process to something of a lottery and is therefore something that no civilised society would want to be associated with. I'm sure he will, but I'd be grateful if Malpoet could clarify exactly what he meant by that comment, as it seems to be one that makes little sense.

I made a point of watching something strongly pushing the opposite view before commencing work on this piece. 'Real Crime - Justice for Julie' focussed heavily on Ann Ming, the mother of Julie Hogg who was murdered in 1989. Filmed in 2004, the programme covered Julie's death and the two trials of William Dunlop, who was acquitted when on both occasions the jury found itself unable to reach a verdict. While serving a sentence in Durham prison for a subsequent act of GBH, Dunlop confessed to killing Hogg, unaware that the warden to whom he had coughed was wearing a wire and recording the conversation. He received a further six years for perjury, but although he had clearly stated that he was guilty of the crime, the rules in place covering double jeopardy prevented him from being tried again.

Ann Ming articulates this case for changing the law at the time very strongly, in her own clear and robust way. Would you be happy with that chain of events if it was a member of your family who had been killed? is an obvious riposte to anyone trying to defend the legal status quo as it was at the time and therefore becomes the central thread in any argument for reform. Like many who feel that the change in the law was wrong, I would struggle desparately to provide a clear face-to-face answer, so I'm unsurprised by and completely believe her claim that while canvassing for a change in the law she "has (had) not enountered one person who was strongly against what we are (were) doing". Ann's dedicated and dligent work eventually brought her a face-to-face meeting with Home Secretary David Blunkett, and the amendment to the law that she craved. By the end of 2006, Dunlop had received an additional minimum sentence of 17 years for the murder of Julie Hogg.

However, the fact that you would struggle to answer the earlier question with a simple yes or no that sat comfortably with retaining the old laws on double jeopardy does not automatically mean that the case for reform is watertight. In fact, it is a massive part of the inherant flaw in such a line of thinking. As a general rule, people with an emotional stake in any issue tend not to be the best-equipped to take a step back from their own case and make an objective and dispassionate judgement which weighs up all of the relevant factors on both sides of the equation (I am deeply uncomfortable with the notion of 'witness impact' statements in court for the same reason). Ultimately, this is one of those questions where no compromise can be struck - a defendant can either be placed in double jeopardy or they cannot.

While Dunlop's record of violent criminality and history with Julie Hogg makes his confession entirely believable, there is also the question of whether or not a man in his position would 'come clean' in such a way now that the law has changed. He did of course repeat his statement of guilt when reminded that the laws on double jeopardy were under review, but by this time his conversation with the warden while in Durham prison was on tape, and the critical damage therefore already done. Dunlop appeared to be one of the few criminals stupid enough not to recognise that he had received a phenomenal stroke of luck in legal terms.

Not only did he neglect to understand that a perjury charge may still find its way onto the table, but his violent impulses allied to a lack of all-round intelligence meant he could not keep a low profile for long. Criminals such as he are uncommon occurrences and it is perhaps unwise to build adjustments to the legal framework around the nuances of such cases. Before proposing radical changes which substantially shift the pendulum in the courtroom, perhaps we should ask how criminals such as Dunlop and later Mark Weston were not convicted in the first instance? Unlike Dunlop, Weston was actually acquitted by a jury of the murder of Vikki Thompson in 1996.

The answer in both, along with the Stephen Lawrence case which will also go to retrial for original defendant Gary Dobson, is inept police investigation. They could not find the body of Julie Hogg, which was buried underneath the bath of the home in which she had lived and had been searched by 29 police officers spanning five days. By the time the body was found nearly three months later, it had decomposed to such an extent that a clear cause of death could not be established. This glaring error more than anything else created the reasonable doubt in the eyes of sufficient jurors to free William Dunlop. The 1996 case against Weston was undermined when the original forensic investigation failed to uncover substantial quantities of the victim's blood on one of the boots he had been wearing.

As for the investigation into the death of Stephen Lawrence, well that has been the subject of so much publicity that most readers will understand exactly how useless it was. From the moment that investigating officers mistakenly assumed that the death of a black youth must be gang-related, their efforts to catch the culprit or culprits were pretty much doomed to failure. It is possible that Dobson and suspected accomplice, first-time defendant David Norris are guilty of the offence they stand accused of. However, amid the backdrop of gross incompetence, it is hardly surprising that a jury lacked the confidence to convict anyone of the crime while the Metropolitan Police brand was highly tainted in 1996. Lord MacPherson would of course coin the controversial phrase 'institutional racism' in his enquiry into the way the case was handled.

The key point is that certainly in the cases of Dunlop and Weston, the evidence already existed that should have secured a conviction in the first instance. That all left court free men owed nothing to the existing laws regarding double jeopardy and had far more to do with basic incompetence on the part of the authorities. The result was fundamentally flawed trials built on a famine of meaningful evidence. My suspicion is that allowing the police and the courts as many cracks as they want at a would-be defendant would result in even more of these forays into judicial darkness. This path tends to follow the old phrase that "man with feet in fridge and head in oven is, on average, highly comfortable" - i.e. for every perverse acquittal such as Dunlop or Weston, there is a Barry George or Stefan Kiszko.

One of the other major criticisms of the old rule on double jeopardy centred around the fact that it was, "an 800-year old law", as if the fact that it dates back as long as it does automatically renders it not fit for purpose. Another document, although considerably younger, is over 200 years old and widely respected as one of the greatest and most meaningful pieces of writing that has existed in the history of the free world. Article five of the United States constitution contains the following timeless gem, "no person shall be subject for the same offence to be twice put in jeopardy of life or limb". In the land of the free, the old order on double jeopardy remains except for those instances of mistrials or acquittals that have either been bought or secured through witness tampering. Believing that anything enshrined in law which happens to be more than five minutes old has no merit in the present is a fundamentally flawed and dangerous premise on which to propose change - positively NewLabour-esque, as it happens.

Having countered some of the arguments for the law as we have it now, it is worth considering the other main points in favour of the double jeopardy arrangement that existed prior to 2005. After all, any principle of law that survived without reform for 800 years must have had some basis in merit, surely? The finality of a verdict in court is something which rendered our legal system superior to that used by the Scots, where the presence of 'not proven' verdicts is akin to the sword of damocles dangling over the head of a defendant not actually found guilty of anything.

Depriving the genuinely innocent of that sense of closure means that in many ways relevant to the everyday experience of the acquitted defendant, 'not guilty' may as well read 'not proven'. The friend who gave you an alibi in court could turn and blackmail you, or an "I was there" eyewitness might be magically conjoured up by the authorities - if you think this is far-fetched, then read the book 'the Monster of Florence' and see how witnesses who never came forward in the original investigation can suddenly and very conveniently emerge when the efforts of desparate police has stagnated and hit the wall. While the pressure on the authorities to catch the culprit remains, the acquitted defendant is never truly in the clear. Given the record of some forces on issues such as fabrication of evidence, this is neither a desirable nor satisfactory state of purgatory for any real innocent to be in.

This ties in neatly with another issue surrounding the dangers of a never-decreasing cycle of acquittal and retrial. As we see even in 'civilised' countries, not all of those who find themselves before the courts do so for sensible reasons. Metric martyrs, serial 'hate-criminals' and political protestors all routinely find themselves in the dock for offences which are of questionable menace to the general public. This underlines that under the current system, the authorities frequently have political motive for pursuing a case that may outweigh any legitimate grounds of public protection. The thought that the state could have the means to use prosecution as a smokescreen for persecution is one that should trouble anyone who is genuinely interested in liberty and justice.

While juries would previously have had the power to acquit a defendant in such cases and for that to be an end to the matter, now the statists are able to use the change in the double jeopardy law to pull their favourite trick - if you ask a question of the general population and get the 'wrong' answer, simply keep asking it until you get the 'right' one. One person's definition of 'new and compelling' evidence may vary wildly from that of another, and this appears to be one of those deliberately vague definitions used to allow the maximum amount of wriggle-room to ensure a desirable outcome. As with many of these complicated issues, pandering to emotion and populist sentiment with a 'simple solution' is the thin end of a toxic wedge which invariably has nuclear consequences.

To be honest, I remain unsure as to exactly what I'd say to Ann Ming if I was confronted by her to discuss the question of double jeopardy. In the face of an individual with justifiably emotional views on an issue, one immediately risks being mis-cast as a cold, uncaring fish if they dare to launch any sort of serious counter. However, the one observation I would be comfortable making is that in a climate where people are responding to their hearts, the ability of their brains to assess the potential pitfalls of the 'simple solution' appears to disintergrate fairly rapidly. The draconian insanities of the current gun laws are an instance of where as a country we have failed to step back and allowed emotion to get the better of reason. I believe that in time we will see that changing the double jeopardy laws was another such case.


  1. The problem with our courts as they were is that you're only supposed to render a guilty verdict on a criminal case if you believe beyond the shadow of a doubt that the defendant is guilty. In practise, this has been largely disregarded in recent years but occasionally surfaces, and sloppy prosecution can thus lead to acquittal.

    By allowing a person to be tried again for the same crime, you're basically saying to the police and the prosecution that it doesn't matter if they don't do a thorough investigation or make sure the case is air-tight, they can always go get more evidence and try again.

    That said, I always liked the idea of Not Proven as a nice in-between...

  2. Hi Rational - I tried to touch upon the good point you make about having as many goes as the police want and this leading to complacency. You just make it a bit better than I do.

    Not Proven to me is the worst of all worlds - you're free as an innocent but everyone thinks you did it. The finality of an acquittal is the only thing that can bring comfort to a genuinely innocent person.

    By the way, I've added your blog to the roll at the bottom - thanks for adding us to your blogroll and hope Thoughts on Morality is a big success.

  3. Rational Anarchist3 June 2011 at 20:28

    I couln't disagree with you more on the subject of Not Proven

  4. I start out from the position that the justice system is not a game or contest in which there is a winner or loser and that once the game is played it cannot be re-run.

    The major purposes of criminal justice are to:

    1. protect citizens from crime and criminals
    2. secure restitution for victims of crime so far as is possible
    3. rehabilitate criminals

    The idea that a person should not be placed twice at jeopardy for the same offence rests in the perception of trial as combat and that having won the battle a person may not be challenged a second time. A mark of a mature society is that the primary focus is on protection of citizens and establishment of the truth in order to provide the best protection possible to every member of society.

    At this point it is worth pointing out that a finding of 'not guilty' is not the equivalent of being innocent as is often suggested by the media and is implied by the criticism of the 'not proven' finding in the Scottish system. Before curtailment of the double jeopardy rule, an acquittal gave a defendant protection against further trial on the same charge on the basis that guilt was not established beyond reasonable doubt in the minds of a jury. No judgement is made about innocence and it is quite possible that defendants protected by this position may have fallen short of conviction by only a tiny element of doubt or even a complete misunderstanding on the part of lay people about what reasonable doubt might mean.

    Jeopardy means risk and of course a person should not be put at repeated risk of defeat by a combative process. Once you free yourself from that mindset, the question of whether a criminal should continue unpunished, and society unprotected, because of failures at first trial takes on a different light. This does not imply that incompetencies by the authorities should go unaddressed and that defendants should be repeatedly exposed to the ordeal of trial without powerful reason.

    When I say that the double jeopardy rule should be abandoned completely, I do so because I want to see the abandonment of our entire criminal justice process and its replacement by a rational system. I do not suggest that people should be repeatedly returned to trial at whim. The 'new and compelling evidence' test is actually fairly precise. The term 'new' is self explanatory. There must be real evidence which was not available at the time of the first trial. In most cases this will rule out surprise eye witnesses. The hypothetical blackmailing alibi friend will not be a reality because such a person will not only be a perjurer, but also be guilty of perverting the course of justice as well as the serious crime of criminal extortion (perjury).

    The term 'compelling' means such evidence as would have been likely to have resulted in a different decision. In plain terms there is information that the first trial came up with the wrong result. Removing double jeopardy requires the most appalling cock ups for the genuinely innocent to be dawn into a second trial, but with the double jeopardy rule, well connected, powerful or wealthy criminals are able to win procedural acquittals under the adversarial trial system and can then go on to menace society further while being entirely immune from correction of the error.

    Hard cases make bad law. It will always be possible to find sad situations which ought not to have happened. Flawed humans cannot produce perfect systems. What we need to do is develop procedures that place individual liberty and public protection from crime above the interests of lawyers, judges, politicians, experts or administrators. That includes protecting people from unjust prosecution, but not allowing criminals to 'win' on a first go and then stick their fingers up at their victims.

  5. I agree with you entirely about the double jeopardy rule, it provided adequate protection for the thousands of people acquitted of offences every year. And giving proper consideration to that well-worn but brilliant maxim, "It is better for ten guilty men to go free than for one innocent person to suffer", I think we are left in no doubt about the corrosive effect of removing the double jeopardy rule.

    Anyone acquitted of any of indictable offence for a crime committed after 1996 has reason to be suffering. The Sword of Damocles is above their heads because their acquittals are not final. The CJA 2003 was an evil bit of legislation and while I am as fond of lambasting New Labour as much as the next [decent] guy it was a piece of Tory legislation which deprived, in theory, many acquitted defendants of their peace of mind. Under the Criminal Procedure and Investigations Act 1996 an acquittal can be quashed if there is evidence of jury/witness tampering and someone has been convicted of a relevant offence. Notwithstanding the fact that this was a badly drafted piece of legislation (suppose the man who bribed the jury dies before his trial for PCOJ begins then there can be no quashing of the unjust acquittal), this means any acquitted person (subject to the 1997 proviso) can be tried again without new evidence.

    So: why should we allow acquitted defendants to be protected even if new evidence emerges or it transpires that someone fiddled things for them? We should allow it because a) There are almost always other offences they can be charged with, ones which relate to the lying they did to ensure their acquittal, b) Doing so allows the many factually innocent acquitted defendants peace of mind. After all, if you were tried for a crime then there was some evidence against you, so who is to say more won't emerge? Often things point to an innocent person being guilty, if they didn't then we wouldn't bother with such a demanding standard of proof, we'd just say, if there is any evidence against him then he's guilty.

    I also like the prophylactic argument you mention; the idea that if the CPS/police are given only one chance then they will make sure not to mess it up. I like it in principle but am unsure if it applies in practice? Murder trials are handled delicately, they were pre-2005 and they are now. A second bite of the cherry is not something any prosecutor expects.

    Technical errors which are fatal to the prosecution are quite rare. The legal system is not just a game, and it is recognised that the thought of murderers "getting off" because of clerical errors is not attractive. I struggle to think of cases where people have been formally acquitted of "serious crimes" for any reason which didn't go directly to the question of establishing their guilt (or not); usually this means that the judge decided that, taken at its highest, the prosecution evidence is simply insufficient to justify a conviction; but it could even mean that the defendant was charged under the wrong section of the Act; and anything in between. The last one sounds a bit technical, could just be that the person typing out the indictment put s. 16A when he or she meant s. 16; surely a man cannot walk free because of that!! Well, suppose by accident you were charged with murder when you should have been charged with theft, however compelling the evidence of you being a thief is should a jury be allowed to convict you of murder on it? This example is unrealistic but it shows my point, that getting things spot on is very important because the difference between a conviction for crime A and crime B can be massive for the defendant.

    Of course it is likely that a second prosecution could be started under the right section of the Act, and the test to be applied would be the one laid down in Connelly. My point being, relevant administrative errors likely to be ones which throws up the question, "On the evidence before us can this defendant, fairly, be convicted of the offence on the indictment"?

    1. The purpose of the criminal law is to protect the citizen. It obviously fails in this objective if it is so constructed that ten guilty murderers can go free to ensure that an innocent person accused of shop lifting might not suffer a fine. The maxim is not helpful to the question of possible re-trial in the event that new and compelling evidence arises in respect of a serious crime.

      A significant proportion of violent criminals are repeat offenders. Society can only be properly protected by acting against such criminals when compelling new evidence emerges after the reasonable doubt standard was not met at first trial.

      The peace of mind argument is absurd. An innocent person who has been acquitted knows that compelling new evidence cannot emerge to subject them to further trial. There is no reason why the acquittal of a guilty person should provide them with peace of mind that they have escaped justice. There are some well reported cases before the change in the law of criminals boasting of their past crimes to intimidate in the knowledge that they could not be re-tried.

    2. The purpose of the police and the purpose of prisons is to protect the citizen, I agree, but the criminal justice system has some other overarching aims which compete with the simple aim of protecting the citizen. For a start accused criminals are citizens too, and unless we want to chip away at the presumption of innocence we have to say that being accused of a crime does not diminish what you can expect of the state one iota.

      It is important that people have confidence in the criminal justice system, wrongful convictions damage that as much, if not more than, wrongful acquittals. So there is a lot to be said for being quite critical of evidence before it is ever presented in court, as it is the CPS prosecute if it is more likely than not that a jury will convict. They are admitting that they will be defeated in X amount of cases before the cases have even come to court. And a case which ends in acquittal was, with hindsight, a big waste of everyone's time and everyone's money.

      Repeat offenders are likely to be off the street for other reasons by the time compelling new evidence emerges. Look no further than the case which triggered the 2005 abrogation of the double jeopardy rule; Billy Dunlop was in prison for a serious assault when be made his infamous confession to the murder of Julie Hogg.

      A better way of dealing with violent offenders is to not let them rack up 100 convictions, hand down proper sentences for serious crimes. That would increase faith in the justice system among the law abiding public (though, to speak to your point, I did read that it is the chances of being caught and not the severity of the possible punishment which deters potential criminals).

      The peace of mind argument is not absurd. As I said, there is often enough evidence against innocent people to bring a case to court (unless you believe that everyone who has ever been acquitted by a jury was actually factually guilty of the offence alleged), so if it happened once why can't it happen again? There was that DNA evidence cock-up recently, a man was put on trial for a rape in a town he had never visited; it's quite likely he would have been convicted had the error not been spotted.

      The impact of the changes to the double jeopardy rule was never going to be massive, I think that Parliament identified 35 cases in which it thought there would be a case for a post-acquittal trial. Throwing out a rule which protected thousands of people to punish 35 people might make sense to some I suppose. As I said, I think trials for serious crimes are dealt with in a conscientious way because prosecutors know that it is very, very unlikely that they will get a second chance if the defendant is acquitted; but for the acquitted defendants out there there is always that possibility. So, who is this new rule serving? Not the public, who only get to be protected from a few dozen murderers who committed the relevant crime 10 or 20 years ago.

      You point out that many violent offenders are repeat offenders, this is true. You say that this is a reason why compelling new evidence ought to be allowed to form the basis of a new prosecution; so would you be amenable to an argument from a barrister representing an autrefois acquit defendant against whom new/compelling evidence emerged that ran along the following lines, "We accept that it this new evidence is probative of my client's guilt, but he hasn't hurt anyone since this crime was committed 30 years ago, so for that reason it really is not in the interests of justice to have a new trial"? After all, if he's kept his nose clean for 30 years can we say anyone is going to be better off for him being locked up?

  6. @ Malpoet

    In what way could a layman misunderstand reasonable doubt? It seems that it is only Appeal Court judges who have managed to devote more than a modicum of thought to how sure a jury must be to convict. If there is doubt which makes you less than sure then the defendant should not be convicted.

    And while some acquittals may be the product of caution rather than being attempt by the jury to affirm the defendant's innocence is there any appreciable difference between the two sorts of acquittal? If the prosecution is tasked with showing beyond all reasonable doubt that the defendant is guilty then, notwithstanding perverse acquittals, they have failed to do so if the jury acquits the defendant. And since the default status of any defendant is innocent (i.e. innocent until proven guilty) then is there any difference between a defendant who is acquitted because some cautious jurors gave him the benefit of the doubt, as they should, and one who is clearly innocent? We're all to be regarded as innocent of any crime unless we have been convicted of committing it.

    It's clear from how verdicts are pronounced that the system does not want there to be "complete" acquittals and "marginal" acquittals (although I have heard that in parts of the U.S. after being acquitted you can petition the court to formally affirm that you are factually innocent as opposed to merely 'not guilty'. Not sure why, perhaps it is useful for later civil litigation where the standard of proof is lower), otherwise why is it that the clerk to the court doesn't ask by what majority an acquittal was reached (assuming the majority direction has been given)? I believe it is to avoid any suggestion that a particular acquittal was worth less than another one.

  7. It is very easy for people to fail to understand the concept of 'reasonable doubt'. Apart from the fact that a proportion of jurors will not be reasonable people or will not have understood the evidence at all, it is impossible for twelve people to have a collective lack of doubt. The verdict is arrived at by voting which follows persuasion, pressure and manipulation of the weaker members by the stronger in cases where arriving at a decision is finely balanced.

    The jury system is a dreadful way of conducting criminal justice.

  8. I have not had the pleasure of serving on a jury, yet, so I can't say whether the weaker members of the jury vote according to the strength of the arguments of the stronger members; but if they do then that may not always be a bad thing. Some people are just sheep, and inevitably a few people out of any given twelve will be sheep. The more mentally active and passionate jurors can have some fun trying to win them round I suppose.

    Until they changed the rules in, I think, 1967 (or 1968) it only required one member of the twelve man jury to have reasonable doubt. Now you need three for a hung jury. If you can get three to dig their heels in and refuse to go along with a guilty vote you'll get a re-trial, if the same thing happens again then usually you are formally acquitted.

    Reasonable people: not sure what they are or where to find them, but I assume your definition of unreasonable people extends beyond merely the certified mentally ill, convicted criminals and minors (the three groups excluded from jury service AFAIK; perhaps policemen too, and they're notoriously unreasonable). If we had the pre-1967/8 rules it would only need one reasonable person to say, "No, we can't be sure" to save the defendant, as it is you need 3 and 3 might be asking too much.

    For what it's worth I sort of agree with you, juries are not ideal finders of fact now that cases are so complex, but I can't think of an alternative. Perhaps measures to manage evidence more efficiently and a more open deliberation process would improve things. Provided jurors were made aware that they couldn't be punished for their verdict, no matter how perverse it may be, I think they would be quite open with the judge and so the routes they took to reaching a verdict could be determined by the judge.

    Even so, matters such as witness credibility will always be dealt with as jury questions, in fact even if we got rid of juries there would still have to be some human being making a judgement on two witnesses and saying, "I believe that one more than I believe that one therefore....". As far as I know there is no training which allows you to spot liars 100% of the time (the microexpressions stuff is useful if you have the right equipment but even that is not completely accurate).