Lawrence case: the elephant in the room
The double-jeopardy rule survived the Dark Ages, but it could not survive the New Labour years.
With every media outlet, from the Sun to the Socialist Worker, editorialising about how the conviction of David Norris and Gary Dobson for the murder of Stephen Lawrence was a ‘glorious day’ for Britain, I knew it would be a thankless task to go on the radio and ask: ‘What about the double jeopardy rule?’
On Nick Ferrari’s breakfast show on London’s LBC radio this morning, I argued that all the people describing this case as a victory for justice are overlooking the fact that it is a victory built upon the wreckage of some pretty important legal principles. One longstanding legal protection in particular – the double jeopardy rule, the idea that no one should be tried twice for the same crime – had to be dismantled in order to get Dobson back in the dock. Having been acquitted of the murder of Lawrence in 1996, Dobson was what we used to call ‘autrefois acquit‘, previously acquitted, which in the past would have meant that he could not have been tried for the murder a second time. That all changed in 2003, when New Labour ditched the double-jeopardy rule.
Ferrari was having none of it. ‘But these men are wicked’, he said. Even my agreement with him that the men are indeed lowlifes, alongside my argument that ‘this isn’t about them, it’s about what kind of justice system we want to have’, didn’t wash. ‘I disagree with everything you say’, Ferrari told me, and cut me off mid-sentence.
Double jeopardy is the elephant in the room of the Dobson and Norris conviction. Sure, journalists are mentioning it, usually in fluffy factboxes titled ‘How this case came to court’, but no one wants to discuss it in detail. No one wants to discuss the extraordinary amount of history and progressive tradition that had to be consigned to the dustbin of ‘bad ideas’ in order to secure one conviction against two nasty blokes.
The double-jeopardy rule had existed in some form or other for centuries. There was a Roman maxim which said ‘nemo bis in idem debet vexari’ – no man shall be punished twice for the same. It’s there in early Christianity, too, in St Jerome’s insistence in the fourth century that ‘there shall not rise up a double affliction’. It’s also in the sixth-century Digest of Justinian, the seed of much of modern jurisprudence, which insisted that, ‘The governor should not permit the same person to be accused of a crime of which he has been acquitted’. An academic 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).
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. From England it spread to the US, where the eighteenth-century revolutionaries and their successors made a bar against double jeopardy a key plank of their new republic’s constitutional guarantee of liberty against state power. In each historic period, the purpose of the rule against ‘double afflictions’ was strikingly similar: to protect individuals from potentially being hounded and interminably retried by governors, crown forces or cops determined to stick them in jail. That’s because being permanently at risk of prosecution is itself a kind of life sentence.
Yet where the double-jeopardy rule survived the Dark Ages, it could not survive the New Labour years. Proving they’re even more allergic to liberty than those pointy-hatted men who ruled Europe in that bleakest period of cultural and moral deterioration, New Labour suits decided to ditch the double-jeopardy rule in 2003. Taking their cue from the 1999 Macpherson Report into the Stephen Lawrence case, which proposed a new ‘power’ to override the double-jeopardy rule, New Labour’s Criminal Justice Act 2003 made it possible to retry someone for a serious offence of which he had previously been acquitted or convicted.
And so it was that a legal protection that had existed in various forms for two millennia, articulated by everyone from Romans to saints to revolutionaries, was discarded – all in the name of bringing a few rotters from south London back to court to answer for the killing of Stephen Lawrence. Add the ditching of the double jeopardy rule to recent assaults on the right to silence and even on the right to trial by jury in some instances, and you can clearly see that it is not justice that is being boosted here, but rather the power of the state over the once-sovereign individual. The further legal denuding of the individual before the forces of the state is simply too high a price to pay to secure convictions against people we don’t like. The immediate losers might be people like Dobson, but the long-term losers are all of us, with our rights and protections, fought for over centuries, further eroded by the state and its compliant media cheerleaders and supposedly liberal supporters.
You don’t have to be a friend of Dobson or Norris to recognise that undermining long-standing legal protections for a narrow and fleeting end is never a good thing to do. Isn’t there also an old legal maxim about how ‘hard cases make bad law’?
Brendan O’Neill is editor of spiked. Visit his personal website here.