17 July 2001
Labour plans to reform the law on double jeopardy so that those acquitted of murder can be retried if new evidence arises. Martin Linton and Helena Kennedy put the case for and against the change
The case for change
I believe the time has come to relax the double jeopardy rule. When it originated, 800 years ago, it was a vital safeguard for defendants, but that was a time when absolute monarchs used torture to obtain evidence. It would be perverse not to recognise that things have moved on since then. We have the rule of law. We have a Human Rights Act.
But the biggest change has been the advent of forensic science. We don't have to believe it is foolproof to recognise the irrationality of, on the one hand, accepting DNA evidence when it shows that someone found guilty was innocent or that someone not charged was guilty and, on the other, not accepting it when it shows that someone acquitted was guilty. Some argue that is worse to put one innocent person in jail than to let 10 guilty people walk free. But wrongful acquittals can be just as harmful as wrongful convictions, not just to the reputation of justice but to, for example, a rape victim imprisoned in her own home by the knowledge that her assailant is free.
Double jeopardy is the cause of many manifest injustices. Billy Dunlop, acquitted of the murder of a pizza delivery girl in 1991, used to boast that he had committed the "perfect murder", and people would contact the girl's distraught parents to tell them. It took nine years to get his confession on tape and he was finally brought to justice last year, but even then, since he could not be tried again for the murder, he was found guilty only of perjury.
Ronnie Knight admits in his "kill-and-tell" Memoirs and Confessions that he "got away with murder" when he and the Krays were acquitted of the gangland murder of Alfredo Zomparelli, gunned down in the Golden Goose amusement arcade in Soho. "Dodgy" Dave Courtney, enforcer for the Krays, confesses in his memoirs to a murder of which he was acquitted and turns up in a white Rolls Royce to be feted at the Clerkenwell literary festival. Freddie Foreman described on television how he dispatched "Mad Axeman" Frank Mitchell and fed his body to the fish in the North Sea before being acquitted of his murder.
Yes, I do realise that these ex-mobsters may be embellishing their tales to sell more books, but I can't think of any good reason why a jury should not be allowed to make that decision. Nor can I understand the recent case of the man alleged to have broken into the home of a 66-year-old woman, tied her hands with flex and raped her. The prosecution had DNA evidence linking him to the crime, but it was ruled inadmissible because the sample had been collected in relation to another charge and should not have been kept. The House of Lords later declared the evidence admissible, but it was too late. He had been acquitted.
Like the Law Commission, I think the law should have retrospective effect. I accept the principle that no one should be punished for doing something that was not an offence at the time, but we are talking about people who knew that they were committing crimes, who lied in court and got away with it. But I would go further than the Law Commission. I would not stop at murder. If anything the argument for retrials is stronger in cases of rape or grievous bodily harm. At least in murder cases the victim is dead and has nothing more to fear, whereas the rape victim has to live with the knowledge that her assailant is both free and immune.
And I would not rule out new evidence that could have been adduced "with due diligence" at the first trial. If police investigating a robbery fail, for whatever reason - incompetence, negligence or stupidity - to look for fingerprints on the car next to the stolen car, but find them later, why should those fingerprints never be used? Is the accused less guilty because the police were incompetent?
The Bar Council argues that this would tempt sloppy investigation by police. But the police would still have strong reasons to bring a charge only when they feel sure they can make it stick. Are barristers suggesting that they are inclined towards sloppy defending because they know there is an appeals system?
There would still be safeguards. It would have to be new evidence of a serious offence and the appeal court would have to decide that a retrial was in the interests of justice. But to oppose double jeopardy in principle smacks of a legal system that does not want to revisit its own mistakes.
Martin Linton is Labour MP for Battersea and was a member of the select committee on home affairs which recommended the relaxation of the double jeopardy rule.
The case against change
The murder of Stephen Lawrence has sent shock waves through the criminal justice system ever since the dreadful event in 1993 when the young black student was stabbed to death by a group of white thugs. It has become a touchstone for the law's failures, replacing the Irish miscarriages of justice as the gauge of police and legal ineptitude.
The manner of the investigation left the Lawrence family with no trust in the system - even those parts of the system that were doing their job properly. The Crown Prosecution Service, examining all the evidence before them at the time, decided that there was insufficient evidence initially to secure a conviction against the young men suspected of the offence. They were right. There was only one eyewitness, Stephen's friend, who had been deeply traumatised by the incident and whose account was, not surprisingly, shaky on some aspects of what took place.
Had everyone waited, the chances are that further evidence would have come to light. Groups of people who swear allegiance to each other in extremis have great difficulty remaining silent in the longer term. People talk, people find religion, people abandon old loyalties, people resent being lumped together with others in whispered accusations of guilt if they themselves did not wield the knife. The chance that something would eventually break was, in my view, quite high. A continuing rigorous investigation was what was necessary.
But the Lawrence family had no trust in what they were hearing because of the way they had been treated. The system's failure derived from stereotypical assumptions about race and the family's anger and distress were wholly justified, as the Macpherson inquiry showed. However, the private prosecution was a mistake. The judge ended up having to enter verdicts of not guilty because of insufficient and unsatisfactory evidence and the men now walk free but are still suspected of having committed the crime.
Undoing the travesty that took place because of a disastrous investigation is virtually impossible. There is currently no new evidence that could justify bringing the suspects back before the court. The documentary film that shows the men larking about, simulating a stabbing and speaking in disgusting racist terms does not prove that they killed Stephen Lawrence. But the more important question is this: how could any jury be found that would be impartial after the saturation coverage that the case has received? Justice is now impossible.
The lessons to be learned are about improving police investigation and eradicating racism from the system. They are about giving proper support to victims and their families, establishing trust and giving clear explanations for decisions. Interestingly, the Dando family had only admiration and gratitude for the way the police supported them. The answer is not to start dismantling the legal protections and principles that underpin the system.
Yet now we have the government considering the retrial of an acquitted person in serious cases, such as murder, where compelling new evidence comes to light. The double jeopardy rule says that no person who has been acquitted should be put through a trial process again for the same offence. The rule exists as a protection of our liberty. The state should not be able to retry people until it gets the result it wants and to do so is oppressive. There must be finality. To do away with the rule even in serious cases lets the prosecuting authorities off the hook of conducting proper investigations the first time round.
The Lawrence case should serve as a justification of the double jeopardy rule because it is a case that illustrates police failures to investigate thoroughly at the time and the mistake of a premature decision to prosecute on inadequate evidence.
The government suggests that the retrial of an acquitted person would take place only after judges in the court of appeal consider the new evidence so compelling that a retrial is justified. Such cases would be few and far between and would attract huge publicity. How could there be a fair retrial? A second jury might assume that, since our cleverest judges found the new evidence persuasive, their role is simply to endorse a conviction. The risks of injustice are enormous.
What we are seeing now is a strange postmodernist kind of law reform in response to high-profile cases in which insufficient thought is being given to the reasons for the rules. When the system fails to deliver justice it is not because the legal principles have failed us. It is invariably because we have failed to live up to the legal principles.
Helena Kennedy is a Labour peer and a QC specialising in criminal law.