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.