Individual liberty is in serious jeopardy

Why is no one in Britain outraged that this week a man was found guilty of a murder he was previously acquitted of?

Brendan O'Neill

Brendan O'Neill
chief political writer

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Topics Politics

This week in England, a key legal principle was done away with, and no one batted an eyelid. No one gathered in Parliament Square to set fire to things. No one marched on the Ministry of Justice. What happened exactly? A man from Oxfordshire was found guilty of a murder carried out in 1995. But it was a murder for which he had previously been found not guilty. In short, he was subjected to ‘double jeopardy’: he was tried twice for the same crime – an event that every half-decent legal system of the past two millennia has forbidden.

The man in question, Mark Weston, is undoubtedly a nasty piece of work. A 35-year-old alcoholic and loner, he was found guilty at Reading Crown Court on Monday of murdering Vikki Thompson, a mother-of-two whose body was found by a railway line in 1995. He had subjected her to a ‘prolonged and brutal attack’. No one in their right mind would want to stand up for him. Yet the fact that he has become the first man in modern-day England to be found guilty of a murder that he was previously acquitted of means that his case, whether we like it or not, is now a flashing neon advert for today’s boosting of state power at the expense of individual sovereignty.

Under the double jeopardy rule, no one who is autrefois acquit (previously acquitted) or autrefois convict (previously convicted) can ever again be dragged before a judge and jury to be grilled about the same offence. As the American Constitution puts it (inspired by older English common law): ‘[N]or shall any person be subject for the same offence to be twice put in jeopardy of life and limb.’ In short, the state or the Crown or whatever form the prosecution takes cannot relentlessly hound an individual with a jealous determination to brand him guilty, because we recognise that allowing the authorities to do this, allowing them to indulge their vengeful instincts, would jeopardise people’s right to peace of mind and freedom.

The double jeopardy rule has existed in some form or other for centuries. There was the Roman maxim ‘nemo bis in idem debet vexari’ – no man shall be punished twice for the same. It’s there in early Christianity, in St Jerome’s insistence in the fourth century that ‘there shall not rise up a double affliction’. Indeed, one study of the double jeopardy rule in history points out that it is one of the ‘few legal rights recognised by the Christian fathers throughout the Dark and Middle Ages’ (1). It’s also in the sixth-century Digest of Justinian, the seed of much of modern jurisprudence, which held that, ‘The governor should not permit the same person to be accused of a crime of which he has been acquitted’ (2).

In twelfth-century England, a form of double jeopardy was codified in the Constitutions of Clarendon, which, in an attempt to rein in the authoritarian instincts of Henry II, stipulated that no man could be tried for the same offence in both the ecclesiastical courts and the king’s courts. It had to be one or the other. And from there it spread to the US, where the revolutionaries and their successors made a bar against double jeopardy a key plank of the new republic’s constitutional guarantee of liberty against state power.

Yet while early versions of the double jeopardy rule managed to survive the Dark Ages, that period of profound cultural deterioration, they could not survive New Labour. Demonstrating that it is even more allergic to ancient liberties than those pointy-hatted men who ruled Europe during bleak and black times, New Labour decided to slash-and-burn the double jeopardy rule in 2003. In the name of chasing down individuals who were found not guilty of crimes they actually committed – says who? – New Labour’s Criminal Justice Act 2003 did away with the double jeopardy protection for serious offences. It decreed that those who were autrefois acquit in relation to murder, manslaughter, kidnap, rape and serious drug offences could be tried a second time if new evidence came to light.

And so it was that a couple of thousand years’ worth of legal principle was signed away by liberty-loathing suits. The fact that New Labour’s actions have resulted in the finding guilty of a lowlife like Mark Weston, who does indeed seem to have murdered a young mum, should not distract from the seriously illiberal consequences of their binning of the double jeopardy rule. It is undoubtedly true that in the past some people were found not guilty of crimes they actually committed, and that they could possibly have been found guilty if only the state were given a second stab at convicting them. But I’m afraid to say that having people occasionally get away with crimes was a small price to pay for a key institution such as the double jeopardy rule, which was there not to ‘protect criminals’ – as New Labourites and their Lib-Con successors no doubt believe – but rather to protect all of us.

The double jeopardy rule, the right to silence, the right to trial by jury, the insistence that the prosecution must prove beyond reasonable doubt that someone is guilty before he can be convicted… All of these rights exist for a very important reason: because we recognise that the relationship between the state and the individual is severely skewed in favour of the state, and therefore it must, as much as is humanly possible, be rebalanced.

The state has the police, the Crown Prosecution Service and the vast prison system at its command, and what does the individual who finds himself caught up in the criminal justice system have? A defence lawyer. Thus individuals must also have – indeed they need – the right to be judged by a jury of 12 of their peers, to stay silent throughout their whole trial, to have the burden of proof put entirely on to the prosecution, and to expect that once they are found not guilty they will never, ever be tried for the same offence again, because this is a way of empowering the individual and reining in the state in order to make it a slightly fairer stand-off. Without these key rights, it is just one man against the awesome machinery of state power – unfair, unjust and unacceptable.

Beyond the world of criminal justice, the dumping of the double jeopardy rule speaks to a worrying new political climate. A climate in which the individual is increasingly denuded of fundamental rights and where there is so little liberal fervour, so little firm commitment to protecting individual liberty, that people either don’t notice or don’t mind. Following Weston’s trial, a spokesman for the Crown Prosecution Service issued a warning to all those who have previously been found not guilty of crimes which, in his somehow magical eyes, they actually committed. ‘You have nowhere to hide’, he told them. Those words are really aimed at all of us, who can now potentially be stalked by the state in a way that would have been considered outrageous just a decade ago. We shouldn’t hide; we should fight back out in the open.

Brendan O’Neill is editor of spiked. Visit his personal website here.

To enquire about republishing spiked’s content, a right to reply or to request a correction, please contact the managing editor, Viv Regan.

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