Why nobody should be tried twice for the same offence
The UK government's ditching of the double jeopardy rule diminishes the dignity and autonomy of all of us.
‘If there is compelling evidence, say in the form of DNA or other scientific analysis or of an unguarded admission that an acquitted person is after all guilty of a serious offence, then, subject to stringent safeguards….what basis in logic or justice can there be for preventing proof of that criminality?’
So asked the English Lord Justice Auld as he made the case in September 2001 for dispensing with the rule against double jeopardy, the rule that you cannot be tried twice for the same offence (1). He put the question, but the answer quite escaped him. It had also, less surprisingly, escaped the New Labour government, which already, in June 2001, had announced its intention to change the law on double jeopardy in relation to murder cases.
It did not, in the eighteenth century, escape Sir William Blackstone: ‘[T]he plea of autrefois acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence.’ (2)
It did not, in 1957, escape Mr Justice Black in the United States Supreme Court: ‘The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.… A principle so deeply rooted in the law of England, as an indispensable requirement of a civilised criminal procedure, was inevitably part of the legal tradition of the English Colonists in America.’ (3)
It did not, in 1964, escape Lord Devlin in the House of Lords: ‘No system of justice can guarantee that every judgment is right, but it can and should do its best to secure that there are not conflicting judgments in the same matter.… That is why every system of justice is bound to insist on the finality of a judgment arrived at by a due process of law. It is quite inconsistent with that principle that the Crown should be entitled to reopen again and again what is in effect the same matter.’ (4)
Nor did it escape the Law Commission, in March 2001, when it defended this principle in the criminal process: ‘The finality involved in the rule against double jeopardy (known by almost everyone, even if not by name) represents an enduring and resounding acknowledgement by the state that it respects the principle of limited government and the liberty of the subject. The rule against double jeopardy is, on this view, a symbol of the rule of law and can have a pervasive educative effect. The rule serves to emphasise commitment to democratic values.’ (5)
But, unfortunately, having stated the principle, the Law Commission sold the pass – oh, go on then, perhaps a limited exception, just for murder (6). In the end, the Labour government, with Lord Justice Auld bringing up the rear, drove a coach and horses through the gap, and the 800-year-old rule fell to the Criminal Justice Act 2003.
The Court of Appeal (on an application approved by the Director of Public Prosecutions) may now order the retrial of persons acquitted of ‘serious offences’ if it considers there is new and compelling evidence and that it would be in the interests of justice to do so. The specified offences all carry a maximum sentence of life imprisonment, and include murder, manslaughter, rape, kidnapping, various sexual offences (for example, intercourse with a girl under 13 years of age), possession of various certain Class A drugs, and certain terrorism offences.
Section 76(5) of the Criminal Justice Act provides that there can only be one further retrial. But then, if new evidence emerges after that second trial ‘…what basis in logic or justice can there be for preventing proof of that criminality?’ I cannot see that sub-section lasting 800 years.
Some may feel that logic and justice do support Billy Dunlop being the first person to be retried under the new law. He had been tried in 1991 for the murder of his girlfriend Julie Hogg (in 1989), but neither of two different juries could reach agreement, and so after the second failure to agree, he was acquitted. In 1998, Dunlop was sentenced to seven years for grievous bodily harm after attacking a couple with a knife and a baseball bat. In prison he told a warder (and indeed a new girlfriend) that he had killed Hogg. Questioned by police, he made a full confession, and in 2001 he was tried and convicted of having perjured himself at his original murder trial (the rule against double jeopardy precluding a retrial for murder). Having pleaded guilty to perjury (and confessed in court to the murder), he was sentenced to six years (one short of the statutory maximum for perjury) on top of his current sentence. Dunlop was retried for murder on 11 September 2006. He pleaded guilty to murdering Hogg, to strangling and mutilating her body. He was convicted and will shortly be sentenced to life imprisonment, and told how long he should serve before being considered for parole (7).
Such cases do of course represent a miscarriage of justice. It does happen that guilty defendants are acquitted, but there is no evidence to suggest that there are many such cases that could be remedied by this change in the law. It is argued, however, that if convictions can be reopened in exceptional circumstances, then why not acquittals? The circumstances are not the same. However hard it is for a victim or family member to bear the fact that a criminal ‘got away with it’, that cannot be compared with the plight of a man unjustly detained in prison for years on end. With the new law there will certainly be satisfaction at seeing justice done at last in a few cases, but the point is that the price we pay for that – for the change in this fundamental law – is a heavy one.
We should notice that all defendants now acquitted of ‘serious offences’ are not only at risk of suffering anxiety at the thought of further prosecutions (which may, given the usual publicity, now be stacked against them, and result in miscarriages of justice), but also that the quality of their freedom itself is compromised simply by their remaining subject to such a process.
We should note, too, that the rule no longer deprives the prosecuting authorities of the occasion of visiting oppressive attention on acquitted defendants, and also that it will not now function to encourage diligence and probity in the investigation of serious offences, or to promote care in the presentation of the whole case at trial (as the rule did when those authorities knew they only had one bite at the cherry).
And in the big picture the individual has undoubtedly been diminished once more in point of dignity and autonomy in relation to the state and its public authorities.
In the big picture, what is the criminal justice system for? Lord Justice Auld states that, ‘the general justifying aim of the administration of criminal justice is to control crime by detecting, convicting and duly sentencing the guilty. It is not part of that aim, simply a necessary incident of it, that the system should acquit those not proved to be guilty.’ (8) This is inadequate, even as a shorthand description. The aim of the system is to do justice in the matter of controlling crime. It is a criminal justice system, not a crime control system (at any price).
The system must strive to detect and convict the guilty but also to ensure that those who may be innocent are acquitted. The latter is not an incident (an accessory or subordinate relation) of the former, but an imperative of at least equal weight. It is an obligation owed not simply to the defendant but to the victim (who has a real interest in the right person being sent to prison) and also to every citizen.
The whole process must pay due regard to the interests of the public at large in the protection and vindication of all citizens, victims and their families, in the defence of all citizens from being wrongly imprisoned by a powerful state apparatus, and in the maintenance of due respect being paid to every person in their dealings with this system. If it does not, the system will not retain the confidence of the people, without which it cannot be effective in any dimension.
In the Hogg case, public confidence in the system was challenged long before Dunlop first confessed to her murder (at a time when he could not be retried for it) – by the lack of diligence in the police investigation. On being notified that Hogg was missing the police took over her house for days of searching, and took a dog there. They somehow missed the fact that her body had been hidden upstairs behind the bath panel. The family found the decomposed body there nearly three months later. It was impossible to establish the cause of death (9). The police paid Hogg’s mother £10,000 to settle a claim of police negligence (10).
One also wonders about the effect on public confidence of the circumstances in which Billy Dunlop came to his second trial. When he confessed to perjury (and the murder) in April 2000, it was reported that police were ‘looking closely at the whole case again’ – to see if a retrial for murder could be arranged. The following month a former police chief joined the family in calling for the scrapping of the double jeopardy law. In June 2000 the House of Commons Select Committee for Home Affairs produced a report on double jeopardy supporting a change in the law, and referred to the Dunlop case in the third paragraph (11).
When the government announced in the Queen’s Speech in 2001 that it would indeed change the law, a newspaper wondered aloud if a certain Billy Dunlop would be charged. In 2002 ITV broadcast a documentary from Tyne Tees Television, Justice for Julie, which featured her mother’s campaign to change the law, so that Dunlop could be prosecuted again. On the day in November 2003 that the Criminal Justice Act received the Royal Assent, a newspaper reported that Dunlop could now face trial for murdering Hogg. In November 2004, in anticipation of the Act coming into force, it was confidently reported that: ‘The first case lined up is the 1991 killing of pizza delivery girl Julie Hogg.’ When the Act did come into force in April 2005, this news was accompanied by the information that the police planned to re-examine the Dunlop case. No surprise, then, that in September 2006 the papers could duly announce his conviction (12).
This is no way for a criminal justice system to do business. Whatever the merits of the legislation, or indeed its retrospective effect, it is distinctly unhealthy for the progress of any piece of proposed criminal legislation, let alone one of such importance, to be tracked so closely in relation to one individual.
The elevation of victimhood
Of course, there is what the Law Commission calls ‘the spectre of public disquiet, even revulsion, when someone is acquitted of the most serious of crimes and new material (such as that person’s own admission) points strongly or conclusively to guilt. Such cases may undermine public confidence in the criminal justice system….’ (13) The paragraph goes on immediately to state the obvious – that confidence is also undermined by manifestly wrongful convictions. As Lord Devlin pointed out, no system will ever be free from mistakes. Every effort has to be made to avoid both types of mistake. A balance has to be struck, and the balance is always kept, as it should be, under review.
In July 1993, the Royal Commission of Criminal Justice reported on its inquiries into the criminal justice system following a whole raft of miscarriages of justice (to defendants). It did not support any change to the rule on double jeopardy (14). Nevertheless, 10 years later the law changed. How did that happen?
It is not really explicable in terms of the number of defendants likely to be retried (it seems to be widely accepted that it will be small) (15). Nor is it simply explicable in terms of the generally authoritarian tenor of the Labour approach to law and order, nor in terms of the insouciance about the integrity of the criminal process that we have come to associate with the government. One element, perhaps, is a lack of confidence in society in general which leads people, when confronted with exceptional, even freakish, cases, to lose their nerve and their conviction in the worth of tried and tested arrangements. Those arrangements should be valued, of course, not just because they happen to be old, but because they express and maintain worthwhile standards.
Clearly the key factor has been the wider elevation of victimhood in society, and the consequent enhancement of the status of the victim in criminal proceedings. Much greater prominence has been afforded over the past decade to victims, and not simply in terms of their formal role in the process itself (for example through impact statements), but also in the way that newspapers and politicians have taken up the campaigns of parents such as Ann Ming, mother of Julie Hogg, or exploited cases such as that of Sarah Payne, the eight-year-old girl who was murdered in 2000 by a convicted sex offender.
The key development in this respect was the report in 1999 of Sir William Macpherson on the investigation into Stephen Lawrence’s murder in 1993. He called for the law on double jeopardy to be reconsidered (16). Perhaps of more significance, however, was the tremendous boost that he and the whole affair gave to the profile of the families of victims, not least because of the charisma of Lawrence’s parents themselves. It was this development that enabled Mrs Ming to pursue her campaign so effectively.
The more we dwell on the pain of the victim or their families, however, the more susceptible we become to being manipulated, especially with respect to the perception that defendants are being unjustly acquitted or too leniently sentenced. If there are in fact unfair acquittals, the answer is not to lower the standards at trial, or to allow retrials, but to raise the standards of investigation and prosecution. The idea that society will be better protected by making it easier to convict (eventually) those people that the police arrest is wholly fallacious. As Mr Justice Curtis remarked on dismissing the case against those charged for the Lawrence murder, ‘adding one injustice to another does not cure the injustice done to the Lawrence family’ (17).
It is clearly right that witnesses, complainants, victims and their families should be treated properly by police and courts. They should, for example, be kept fully informed of developments. Often, of course, the victim will be a key witness. Yet the more prominent the role of the victim (or their families) in the process, the higher the risk that emotion will upset the cool, measured consideration of the evidence which is crucial to fairness and to good judgement. We recently saw a judge weeping on the bench as he read an impact statement (18).
It is not healthy to allow the victim too prominent a role after either conviction or acquittal. In a civilised society retribution is exercised rationally by the community as a whole and is balanced with other considerations – the need to protect the public, to deter other offenders, and of course to rehabilitate the victim. The instinct for revenge is natural, but it is just that, an instinct, which should be restrained by the reasoned punishment of the court.
Similarly, the checks and balances of the criminal justice system as a whole must be carefully calibrated, and not driven by the grief of victims. A steady eye must be kept on protecting the interests of all individuals – victims, defendants and citizens. In the end, justice is done not when the victim is satisfied, or when the defendant is satisfied, but when society as a whole is satisfied.
In this respect we might notice that while vindicating a sense of justice is important, encouraging victims to focus on their grievances is a very destructive institutional response. There is much talk of ‘closure’ in these cases, about how that is not possible until a certain result is achieved. Mrs Ming’s comment is typical: ‘I want him convicted for the murder of my daughter and then I begin again.’ (19)
In defence of finality
One of the advantages of the finality that we have lost is that it did not encourage those coming to terms with loss or trauma to continue to live in that past. We should not assume that everybody wishes to deal with these matters by keeping them alive in the present. Nobody underestimates the desire and the need, felt particularly acutely by the families of murder victims, for justice to be done. Nevertheless, for most people it is likely that finality, even in the unwelcome form of an inexplicable verdict, is more apt to offer deliverance than is the prospect of further appeals, publicity, campaigns, changes to the law, etc. The fact that we would be very loathe to condemn a family for pursuing such a course does not mean that we should agree to the action that they demand. For there to be good law, there must sometimes be hard cases.
It is perhaps not stretching a point to feel here the influence of another contemporary trend, the obsession with the wrongs of the past. This is not about studying history, but about revisiting it, revising it, and trying to improve upon or correct what happened. Despite the claims that are made, this seems to be more about making people feel better in the present, rather than about learning lessons for the future. There is a tendency now to visit the condescension of history on just about any aspect of the past of which people disapprove, especially where it is seen to pertain to them personally in some way. In the name of justice and ‘closure’ we see campaigns for reparations for slavery, or for the restoration of dispossessed family fortunes, or for the return of art treasures, or for pardons for First World War soldiers or Derek Bentley, or for the arrest of war criminals almost too old to breathe. Television detective shows are awash with cold cases and disinterred corpses.
There is at large a morbid refusal to leave the perceived injustices of the past alone, and to this has just been added a large measure of encouragement to the victims of crimes and their families not to let it lie.
John Fitzpatrick is senior lecturer in law at the University of Kent in Canterbury, where he teaches human rights law and legal processes, and director of the Kent Law Clinic. He is speaking in the session The rise and rise of human rights: an unalloyed good? at the Battle of Ideas festival of debate in London in October 2006.
(1) A Review of the Criminal Courts of England and Wales by The Right Honourable Lord Justice Auld, September 2001, Chap 12, para 51
(2) Blackstone’s Commentaries on the Laws of England (4 vol., 1765–69), Book IV, Chap 26. Green v US 355 US 184 (1957) at 187
(3) Green v US 355 US 184 (1957), at 187
(4) Connelly v Director of Public Prosecutions , AC 1254 HL at 1353
(5) The Law Commission (Law Com No 267), Double Jeopardy and Prosecution Appeals, Cm 5048, March 2001, para 4.17
(6) Ibid, Part VIII, para 1
(7) Joshua Rozenberg, ‘First double jeopardy killer jailed’, Daily Telegraph, 12 September 2006
(8) A Review of the Criminal Courts of England and Wales, supra, Chap 12, para 51
(9) Yvonne Roberts, ‘Double jeopardy: ‘Killers’ fear justice at last’, Observer, 11 March 2001
(10) Joshua Rozenberg, ‘First double jeopardy killer jailed’, Daily Telegraph, 12 September 2006
(11) Select Committee on Home Affairs, 8th June 2000, Third Report, HC 190, The Double Jeopardy Rule, paras 3 and 66
(12) Ian Lamming, ‘Cleared Julie Killer Could Be Tried Again’, The Northern Echo, 15 April 2000; Hayley Gyllenspetz, ‘Lord Mackenzie Joins Call For Killer’s Retrial’, The Northern Echo, 2nd May 2000; Chris Brayshay, ‘At Last, Killers Won’t Get Away With Murder’, The Northern Echo, 21 June 2001, Bill Doult, ‘Mum’s Victory’, Evening Gazette, 21 November 2003; Andrea Perry, ‘The Change In The Law That May Finally Bring Killers To Justice’, Sunday Express, 21 November 2004; Joshua Rozenberg, ‘Murder reviews with end of “double jeopardy”’, Daily Telegraph, 4 April 2005; Joshua Rozenberg, ‘First double jeopardy killer jailed’, Daily Telegraph, 12 September 2006.
(13) Law Com No 267, supra, para 4.5
(14) Royal Commission on Criminal Justice Report (Cm 2263), The Stationery Office, July 1993, Chap 10, paras 75 and 76
(15) Third Report, HC 190, supra, para 25
(16) Report of an Inquiry by Sir William Macpherson of Cluny, Cm 4262-I, The Stationery Office, February 1999, Chap 47, para 38
(17) Richard Duce and Lin Jenkins, ‘Race murder case fails after judge rules out evidence’, The Times, 26 April 1996,
(18) Beth Hale, ‘Judge weeps at tribute to killer driver’s victim’, Daily Mail, 13 September 2006
(19) Yvonne Roberts, ‘Double jeopardy: ‘Killers’ fear justice at last’, Observer, 11 March 2001
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