Saturday, 10 February 2007

Back to Jurisprudence: The return of double jeopardy

After my forays into general comment, I thought I'd return to my proper topic. So, true to form, I shall now show you how the Government's legal reforms are again absurd.

Double Jeopardy

Protection against double jeopardy is an ancient civil right. It was part of Roman lawIt has been part of our law for the last 800 years. It means this: if a person is aquitted of a crime, he cannot be retried. The prosectution can, of course, appeal. But that is part of the same trial.

Now, however, the government has reintroduced double jeopardy.(i) In certain cases, the Director of Public Prosecutions (DPP) can apply to the Court of Appeal for a re-trial. There are limitations, however. It can only be done when 'new and compelling evidence', not used at the original trial, is brought to light.

To the average chappy, this may seem reasonable. But I would like to examine the development of the principles behind the issue. More frightening is the Government's new take on jurisprudence. I hope you will see the dangerous nature of the Act of 2003.

Sir William Blackstone

This is one chap to whom I will probably refer several times over the course of my writing. A Fellow of All Souls, he was elected the first Vinerian Professor of Law in 1756. As a product of twelve years' worth of lectures, we are left with his great heritage, his Commentaries on the Laws of England. In four books. It is the greatest law-book we have ever had.

[For those of you wondering what the term means, Blackstone defined Jurisprudence as 'the knowledge of things divine as well as human - the science of the just as well as the unjust'. It is modernly defined as 'the theory of law'. Technically, I hope to do a degree in Jurisprudence, not law]

So where does Blackstone come in with our present topic? In his Commentaries, he expounded the principles of protection from double jeopardy:

"First, the plea of autrefoits 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. And hence it is allowed as a consequence, that when a man is once fairly found not guilty upon any indictment, or other prosecution, he may plead such acquittal in bar of any subsequent accufation for the same crime. Therefore an acquittal on an appeal is a good bar to an indictment of the same offence." (ii)

The principle

What is the reasoning for this policy? The underlying reason, firmly rooted in our 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. In doing so they would be subjecting him to embarrassment, expense and ordeal, 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.

But, you say, what if he's guilty? More of Blackstone's words have achieved axiomatic importance in the establishment of our system of common law: 'It is better that ten guilty persons escape than one innocent suffer'.

In such broad problems as this, legislators and judges must look at the whole issue.

In modern times

Now, however, this principle is being undermined. Our present government has long been in legal paralysis. It has aimed not to look like right-wing supporters of harsh, deterrent sentences. Yet it wants to be 'tough on crime, and tough on the causes of crime'. So it has a paradox.

Their solution is absurd. Incompetant Asbos and such can be dealt with later. But their solution is far from impotent. It is lethally dangerous. Marcel Berlins wrote in the Guardian:

'The way Blair and his ministers are trying to sell the new who-cares-about-the-innocent world is by way of a deviously populist approach centred on "the victim" - and using the key, if inappropriate, word "rebalance".

'Let me translate for you the phrase that the government is so fond of bandying about: "rebalancing the criminal justice system in favour of the victim." This has very little to do with victims. Our aim, the government is really saying, is to put away as many criminals as possible and if, on our trawl, we happen to catch some people who have done nothing whatsoever wrong, well, tough. Sorry and all that, but the police have more important things to do than to gather up evidence to prove that the accused committed the crime. And as for all those rights we give an accused, why, some people actually make use of them to get themselves acquitted!' (iii)

In our society, there is very much a presumption of guilt. We should be glad that the courts hold firm as a bulwark against this tide. But Parliament has not. Democracy, being glorified mob rule, required popular policies. So the politicinas reflect the ignorant masses.

No-one cares about the accused. Unless they themselves are accused of a crime. Empathy (not sympathy) is needed. We should recognise that the state has the power to accuse a man wrongly. He is acquitted by a just trial, by a jury of his peers. That is justice. This law, which permits re-trial on very vague grounds ('new and compelling evidence': what is 'compelling'?), is thus to be deplored.

The solution

No doubt that, by now, you'll have thought 'but what about the cases where a guilty man is wrongly acquitted?'. You might think it deplorable that he should go free. there is a simple solution. The Police, and the Crown Prosecution Service, need to get their job right first time. Once they have found all of the compelling evidence, they should proceed to trial. Thus, the chances of wrongful acquittal are hugely reduced. And the few that slip through the net must be borne.

What do you say? I would be intruiged to know.

(i) Criminal Justice Act, 2003. (
(ii) Sir William Blackstone, Commentaries on the Laws of England (IV, CAP. 26)
(iii)Marcel Berlins: Wednesday June 28, 2006, The Guardian


Tom said...

I'm not quite sure what to say Phil. I can at least say that I too know not what "compelling" evidence is. :)

As far as the law goes, I am not as well versed in its proceedings as yourself. However, I can see one problem that you are outlining. We are, in essence, attempting to decide which is the greater injustice; that an innocent man should be punished for a crime he has not committed, or that a guilty man should go free.

I would agree with Blackstone in that it is better for several guilty men to go free, if only to save one innocent man from undue punishment.

It depends upon one's definition of the judicial system. If one considers the role of the judicial system to be bringing to justice those who choose to break the laws of this country, then there is no room for empathy or sympathy for those caught up in the system. Except perhaps that if found guilty, the accused is, in the eyes of the judicial system, a criminal and so the duty of carrying out justice upon that person then applies. As such, justice is not being exacted upon that criminal, and the judicial system fails.

If, however, one's definition of the judicial system is to protect innocent members of society using the powers of the law, then it is the duty of the judicial system to not only make sure that innocent people walk free, but that guilty people don't, for the innocent public are not being protected if a guilty man walks free. As such, it is wrong in all cases for any innocent man to be found guilty. In a perfect system, this would not be a problem. But unfortunately we do not have a perfect system, and here I agree that if The Police and the Crown Prosecution Service got their job right, we would be a lot better off.

As such, we have ambiguity between rightly setting people free and rightly convicting a person. Should the judicial system focus on carrying out justice for the individual, who may be wrongly convicted, or for the public, who may have a dangerous person released amongst them? We must ask, as I'm sure we have before, is it right to sacrifice the few for the many?

Given the state of prisons right now, thanks to a soft Labour government, I wouldn't say that a man would suffer discomfort. However, he would most certainly suffer embarassment, expense and ordeal. And so at the moment, I will agree with Sir Blackstone.

In reference to the Act of 2003, I believe that in the event of a guilty person squeezing through the net of justice, a retrial to expose their guilt is justified. However, a retrial at the expense of an innocent person's time is wrong in the eyes of Blackstone's apparent preference for the individual.

Perhaps his opinion is drawn from the part that the public should NOT play in trials, and so their well-being at the time of trial is of no consequence.

So many more things to say, but I think this shall have to do for now. I understand there's quite a few ways in which I have left myself exposed to counter-argument and a kick in the back side. However, it makes for good discussion as I'm sure you'll appreciate :D

Phil' said...

I think I'll spare the kick. If only because you're the only interested person. We'll discuss it later, I promise.....