Monday, April 04, 2005

Double jeopardy law ushered out

This from the BBC. I am ashamed to say it didn't make the front page of its news website. The strange sound you are hearing all over England is that of the great judges of the Common Law spinning in their graves.

BBC NEWS | UK | Double jeopardy law ushered out


Albion Blogger said...

You know, I have enormous problems with this. On principle alone I would like to see the protection offered by double jeopardy remain.

But it is itself a flawed idea. An accused must be tried within a reasonable amount of time following arrest. New evidence does come to light after a trial - sometimes years afterwards - and it's evidence which can oftentimes lead to the overturning of a sentence as well as possibly securing a guilty verdict on somebody who clearly did the deed. Currently, we use evidence that later emerges to serve justice in the cause of the innocent. I want it to be used to serve justice in the cause of society against the criminal too.

Is a second trial - limited to only certain, very serious crimes and never exceeding one retrial - such a bad thing? I think not.

Which means we have to return to principle and simply accept that double jeopardy rules come with the rest of it and it's not a pick and mix constitution we have here.


Tom Paine said...

Thanks for the comment. English jurist William Blackstone said "..."Better that ten guilty persons escape than that one innocent suffer..."

The modern obsession with perfecting "society" (whatever that actually means) is threatening individual liberty everywhere. We need a fair system of trial in which everyone can have confidence. We need to be confident that if someone is convicted and punished s/he really deserved it. If people outside the prisons believe that people inside them are often wronged innocents, they will not cooperate with the system of "justice".

In the 18th Century, British justice was famously barbaric. We had more than 200 capital offences, many extremely trivial. The phenomenon known as "...criminal equity...", that is juries refusing to convict the guilty because they thought the punishment disproportionate finally forced a reform.

Double jeopardy survived as a concept in England for 800 years because it was a key element in building confidence in the system. It was visibly fair and protected an individual from being persecuted by the State. It was incorporated into the US Constitution for the same reason.

Its removal is an important signal. The balance between State power and individual freedom is shifting dangerously - and we should all be concerned.

Albion Blogger said...

Everything you say makes sense in itself. But justice is not seen to be done - and so confidence in the justice system is not enhannced - when several pieces of evidence - proof, maybe - comes to light after an acquital that shows the acquital to be erroneous.

One retrial - allowed only for certain crimes and based on evidence deemed almost certain to secure a conviction - serves more than it hinders the cause of justice.

Then again I feel that in order to guarantee our freedoms we need to stick to some rules through thick and thin even if individual instances that suggest the rule to be inefficient come to light.

I agree with your comments about the obsession to 'perfect' society. It's not perfectable and those who seek to perfect it actually only perfect it according to a model of their own choosing. An expansive welfare state, for example, is not a model of perfection that I regard as good for us at all.

Very interesting blog - keep it going.


Tom Paine said...

Did you see that the French authorities are going to prosecute again the paparazzi who were accused (somewhat hysterically) at the time of causing the death of Dodi Fayed and Princess Diana?

Apart from the fact that the proximate cause of her death was being driven wildly by a drunken and drugged man, this smacks of persecution by prosecutors with an eye for publicity.

In France, they at least have to prosecute them for something else, that is "invading her privacy" not causing her death.

In England now, they could have another go at trying them for murder - with square-jawed and dewy-eyed politicians egging them on in an attempt to associate themselves with Diana's glamour during an election campaign.

And all this YEARS after her death. Those cameramen are being persecuted for other purposes. Is our Home Secretary any less liable to interfere in justice for political gain than a French Minister?

If you believe you can trust the State to be impartial, then don't have trials at all. Just let the policemen decide!

I don't trust this or any government. Government has quite enough resources to bring a proper case against anyone it pleases. If it loses, so be it. An acquitted person must be able to get on with his life without looking over his shoulder all the time.

To put it another way, what has changed over the last 800 years to make the Government so much more trustworthy that you would give this extra power?

Albion Blogger said...

I agree with your sentiments - Blair is a living example of just how dishonest a politician can become if he feels there's something in ot for him. And that's a good enough reason to stick rigidly to the present rule regarding double jeopardy - even if it does allow some bad people to get away with something horrible.

I just keep imagining a situation where a rapist, say, gets away with it and then, later, we find something - CCTV we didn't know we had - that actually shows the man committing his crime. If we were allowed to retry serious crimes just once we'd have him...

Ah well.