End of double jeopardy: nothing to be proud of
It is surreal to give Doreen Lawrence a Pride of Britain award for her alleged assault on ‘arcane’ legal principles.
Last week, the Pride of Britain Awards were held in London. Watching the award ceremony on TV was a truly surreal experience.
Nowhere else can you watch Robbie Williams tell a terminally ill girl, in a cringeworthy, watch-through-your-fingers moment, that he ‘loves her to bits’. Nowhere else can you watch a good two minutes of footage taken up by a bidding match between Peter Andre and Arg from The Only Way is Essex over a picture drawn by Rolf Harris, while a terrified-looking sick child watches from the stage in the arms of Carol Vorderman. ‘Fifteen thousand pounds!’ Carol shouts, as the TOWIE table gets excited by Arg’s bid. The child looks bewildered as the audience applauds their collective generosity. The whole ceremony is a truly bizarre exercise in self-congratulation, where the award winners, arbitrarily plucked from the community by a panel of mysterious judges (one of them is Emma Bunton), are paraded for the pleasure of the cloying celebs, desperate to fill their public philanthropy quota.
But when it came to the lifetime achievement award, things got serious. The award was going to Doreen Lawrence for her campaign for justice on behalf of her son Stephen, who was murdered by racists in south-east London in 1993. The video that introduced Doreen Lawrence celebrated her work in bringing about the conviction of David Norris and Gary Dobson for Stephen’s death in January this year. The video also celebrated the repeal of ‘double jeopardy’, a legal principle that said a defendant cannot be tried again for a crime he has been acquitted of, and commended Lawrence’s stand against this ‘400-year-old’ legal barrier to justice.
Stephen Lawrence’s family have always had a certain quiet dignity in the face of their media canonising, their unusual elevation to the status of anti-racist demigods by the media over the past 19 years. Now, it seems, that history may well remember Doreen Lawrence as the woman whose restless campaigning ended double jeopardy as a result of her brave stand against allegedly arcane legal principles.
Of course, this is not how it happened. The last New Labour government spent years peeling back traditional legal protections against state power. Its disregard for the rights of criminal defendants led to: lowering the age of criminal responsibility to 10; forcing defendants for the first time to disclose details about their defence in advance of their trial; allowing some witnesses to give evidence anonymously behind screens and through having their voice disguised; giving judges greater discretion to allow juries to hear evidence of the defendant’s ‘bad character’, such as whether they had been convicted before for a similar offence.
It was the 1999 Macpherson Report into the investigation of Stephen Lawrence’s murder that recommended a reconsideration of the law of double jeopardy – a recommendation which was duly taken up by the then New Labour home secretary, Jack Straw. While New Labour had been pursuing an authoritarian attack on the rights of defendants for some time, the Lawrence case gave it an effective means of making its most radical attack yet on defendants’ rights through repealing double jeopardy. The fact that this reform was perhaps the most egregious in a series of draconian legal changes brought in under New Labour made it even more galling to see Jack Straw in that Pride of Britain videotape for Doreen Lawrence, singing praise to her bravery.
The conviction of Gary Dobson and David Norris was also chilling because they had already had most of their legal rights suspended since they were first accused of killing Stephen Lawrence. The Daily Mail felt no regard for the presumption of innocence when it branded the men ‘murderers’ following their acquittal in 1997. Macpherson didn’t think they were deserving of ancient legal protection when he said in the course of his report that ‘it [was] not difficult to see why people cannot believe you [Dobson et al] are innocent’. The conviction of these men did not come about as a result of Doreen Lawrence’s campaigns, but as a result of a collapse of respect for traditional freedoms among the political and media classes, a collapse which Norris and Dobson had been at the hard end of since 1993.
The principle of double jeopardy was in fact far older than the 400 years referenced in the Pride of Britain footage. The Ancient Greek jurist Demosthenes noted how the principle of ne bis in eadim, or ‘not twice for the same thing’, prevented Athenian (but not Spartan) citizens from being tried twice for the same crime. It arrived in English Law following the Norman Conquest and was exported to the United States, which enshrined it in the Fifth Amendment to its Constitution. It was held unqualified in English law until the 1960s, when limited exceptions were acknowledged in ‘special circumstances’. But this noble history was not enough to keep it on the statute book under New Labour, which abolished it in the Criminal Justice Act 2003, where compelling fresh evidence convinces the Court of Appeal that retrial is in the interests of justice.
The repeal of double jeopardy represented a significant redrawing of the line between state and citizen – in favour of the state. Now, even when someone is acquitted of an offence, the existence of fresh evidence which is significantly probative will place defendants back before the courts even years after the event. This means acquitted defendants will have to live their whole lives in the knowledge that they could, in effect, be carted off back to prison to await trial at any moment. This permanent hold that the state has gained over the lives of people, who are by virtue of their acquittal completely innocent, is the appalling outcome of the authoritarian streak in New Labour lawmaking – which frequently carried out its illiberal assaults on democratic legal principles under the cover of assisting Doreen Lawrence’s struggle for justice.
So while one may admire Doreen Lawrence for her determination and commitment to her cause, I hope she is not remembered for repealing double jeopardy. I hope that, looking back, we are able to recognise that the repeal of double jeopardy, and the numerous other reforms which scaled back individual rights during the Nineties and early Noughties, were spearheaded by New Labour. While Pride of Britain is not usually the kind of ceremony that gives any insight into contemporary discussions about freedom, last week it did. It showed the dangers of society accepting a false narrative, of accepting the false idea that draconian legal change can come about as a result of one woman’s struggle for justice. This emotive but utterly false view of history obscures the fact that there is one, key driving force behind these reforms: a state engaged in an ongoing erosion of individual liberty.
Luke Gittos is a paralegal working in criminal law and convenor of the London Legal Salon.
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