Double jeopardy: No more getting away with it?

Judges may have to change their thinking

Getting away with it: the dream of criminals.

For centuries, one of the underpinning principles of law has been that if you are tried and found not guilty, then not guilty you shall remain.

In other words, if you get away with it, you get away with it.

A simple concept, known to eight centuries of lawyers as the law against double jeopardy. In practice all it means is that the authorities get one chance to prove your guilt - even if later developments make it obvious you are as guilty as sin.

But now the old principle could be having a facelift.

The Macpherson report into the death of Stephen Lawrence recommended the law be reviewed. Sir William Macpherson proposed that people acquitted of crimes should be liable for retrial if compelling new evidence arose.

Three of the five suspects in the Lawrence case were acquitted of Stephen's murder.

The proposals

The proposals from the Law Commission say the rule should be relaxed for serious crimes where substantial new evidence arises.

It should apply in cases where:

• new evidence makes the prosecution case "substantially stronger"
• the new evidence could not have been gained earlier, even if the authorities had acted with "due diligence"
• the sentence for the crime would be at least three years
• a conviction was almost a certainty
• a re-trial was in the interests of justice

Benefit of doubt

Like the presumption of innocence, double jeopardy is part of the legal culture which puts the onus of proving cases onto the prosecutors.

Some fear defendants' rights are being eroded

There have already been exceptions to the double jeopardy rule for cases where not guilty verdicts have been cast into doubt by witness intimidation or so-called "jury nobbling".

But further relaxation of the rule is likely to be opposed by civil liberties groups and lawyers, particularly since the right to silence, another bulwark of defendants' rights, has been restricted.

Wider perspective

Clare Connelly, lecturer in law at Glasgow University, said many people naturally called for reform after the Lawrence case.

But she said: "The difficulty if you remove the doctrine is that you would remove the protection from the accused."

"The focus of this case is a botched job by various criminal enforcement agencies, which has caused a lot of frustration.

Lawrence case not the 'norm'

"But I don't think that situation is the norm. It's probably more normal that we would have to protect accused people from victimisation and recurring prosecution."

With all the state's resources at the prosecution's disposal, it was incumbent on the prosecution to get its case right first time, she said.

Some worry that repeated prosecutions may make wrongful convictions more likely.

Law commissioner Stephen Silber QC said the rule did its job in protecting defendants from the distress of a second trial, but said the proposals would ensure it would only happen when it was fair and just because of powerful new evidence or because the original trial had been a sham.

Lawrence case

The chances of another prosecution in the Lawrence case are not good, however. For a start, it would require ministers to decide that any relaxation of double jeopardy should apply to cases that have already happened.

And it would also need significant new evidence to arise, which experts say is unlikely.

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