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Wednesday, 14 March, 2001, 15:54 GMT
New evidence - new murder trial?

A law which prevents defendants being tried twice for the same crime is expected to be scrapped in murder cases in England and Wales.

The move to change the so-called "double jeopardy" rule, recommended by the McPherson inquiry into the death of Stephen Lawrence, is also backed in a Law Commission report.

It says it should be possible to quash acquittals in murder trials where there is "reliable and compelling new evidence of guilt".

But some lawyers say scrapping double jeopardy would affect human rights, and John Wadham, director of civil rights organisation Liberty, described the existing law as a "fundamental part of our criminal justice system".

What do you think? Is this a sensible way to look at cases afresh, or should the age-old law be kept?

This debate is now closed. Read a selection of your comments below.

Your reaction

I don't think that allowing one person to be tried twice is a good idea

Keith L, UK
There have been a number of famous cases in the UK where police made arrests before checking all evidence, leading to a number of people being released at a later date when the majority believe that the likelihood is that the accused did have some involvement with the crime. However, I don't think that allowing one person to be tried twice is a good idea - it doesn't inspire much confidence in our legal system and police forces if we can't trust them to get it right first time.
Keith L, UK

Removing the 'double jeopardy' rule, removes the presumption of innocence, the fundamental basis of our legal system.
John Weir, UK

New evidence - new trial.
Manfred Kuehn, Australia

What about the human rights aspect of the victims? Surely the Stephen Lawrence case is a prime example of the need for this type of reform?
Alex, England

This might have been more useful 50 years ago than today

Stephen Kenney, USA
This might have been more useful 50 years ago than today, but with the advances of forensic science we currently enjoy, there is no reason whatsoever to repeatedly go to trial. To do so smacks of corruption. If a police department and prosecutor can't get it right the first time, having repeat attempts to convict only rewards the incompetent. Also it will become easier for corrupt departments to harass individuals if it's permissible that more "evidence" can be brought in later to arrest someone later in life. It would make the individual a prisoner of the state and at the mercy of the prosecutors for life, even after serving their penalty to society.
Stephen Kenney, USA

A number of people have referred to the Scottish system of 3 verdicts - "guilty", "not guilty" and "not proven". What they do not seem to realise is that "not guilty" and "not proven" mean exactly the same thing in law. Neither verdict allows a retrial under the double jeopardy principal.
Fergus, Scotland

Justice is best served by requiring the prosecution to prove their case, once and once only beyond all doubt. Majority verdicts ought to be disallowed and retrials should not be permitted under any circumstances. Get it right when you present your case or fail forever.
Steve Browne, USA

Rule of law is such a messy thing. Wouldn't it be easier to just let a tabloid conduct a 60p per minute phone poll? The supposed victim could receive the proceeds and depending on the results, the paper could boost circulation.

Without clear and fair guidelines, I do not see how such a proposal could work

Herman, USA
In the US, the "double jeopardy" law is clearly stated in writing as part of the Constitution. The chief reasoning behind it is to prevent overzealous prosecutors from trying somebody over and over again until a guilty verdict is obtained. The proposed change to UK law states that only if "reliable or compelling evidence of guilt" is presented, but who determines "reliable" or "compelling"? Without clear and fair guidelines, I do not see how such a proposal could work.
Herman, USA

I think if new techniques for using evidence (such as DNA testing) come to light that radically change the outcome of a case, then they should be allowed to be used to prove a person's innocence OR guilt after an initial trial. How many times have we seen people who have sat in jail set free because new techniques have proved their innocence? This should also work the other way around.
Martin, Canada

What about the human rights of the people who are violated by crime in the first place? Sometimes it seems the law is so misguided it protects the aggressors rather than the victims.
Anna, UK

There's a lot of emotion involved here, but whilst there's a strong individual motivation in the face of the Lawrence case, it is not fair to impose a lifetime of worry on those wrongfully prosecuted found innocent. Or have we suddenly stopped believing in our legal system's over-riding capability to generally get it right in spite of the fallibility of individuals? That is, after all, what due legal process is supposed to be about.
Raj Rijhwani, UK

The Government should not even bring a suspect to trial until it has the evidence necessary to produce a guilty verdict

Keith, USA
If the double jeopardy restriction were lifted, the Government, with its deep pockets, could basically harass someone for life with trial after trial. The Government should not even bring a suspect to trial until it has the evidence necessary to produce a guilty verdict. If they go ahead and try the case on faulty evidence, they do it at risk of losing their case. Yes, this means that someone actually guilty of a crime might get off, but it is far better to allow one guilty party to go free than allow any innocent party to be convicted. If the police have a vendetta against someone, it should be "put up or shut up". We cannot allow the Government the right to keep on litigating until they get the verdict they want. Innocent people could be ruined financially, emotionally, professionally by an out-of-control district attorney bent on vengeance. And don't say that won't happen. It will.
Keith, USA

If you allow people to be retried in the light of new evidence what will stop lawyers holding back evidence to be used to force a retrial if they don't win the case first time around.
Robert Deer, UK

Surely saying that this law can be used if "reliable and compelling new evidence of guilt" is found suggests that in these cases, the defendant will be guilty without trial.
Daniel Howdon, England

There is a simple fix that will get around all the (justified) fears over doing away with double jeopardy - allow a "Not Proven" verdict as in Scotland. It is used rarely, but would seem to satisfy everybody's wants. A retrial is allowed if the judge is satisfied that it is justified, and the principle of double jeopardy is still followed.
Daryl Dickson, Scotland

Who thinks that this is more than electioneering? After the election, this will be forgotten like so many other promises made in similar circumstances by both parties before.
Mike, Sandwich, UK

I wonder how many of those disagreeing with the ending of double jeopardy have actually been the victim of a crime whereby both they and the police know the guilt of the offender(s) but it has not been possible to get that one last piece of evidence and as for those that say the Police should pull their finger out and stop slacking - well it just goes to show exactly how much they know about how the police work.
Rob Elliott, Kosovo

Those who advocate scrapping the double jeopardy rule have not actually considered the practicalities of doing such a thing. Who would decide whether or not the fresh evidence was worthy of a new trial? The answer must surely be a court. But how can a trial be fair when the jury knows that a judge has already decided the evidence is sufficiently damning to warrant a new trial? The answer is it can't. The fundamental principle of innocent until proven guilty would be fatally undermined.
Harriet, Oxford, UK

OF course the Law Commission would recommend the removal of the "double jeopardy" law. More trials means more money for lawyers. This government will support it because this, along with other legal changes such as removal of right to trial by jury and keeping DNA samples even if there is no conviction is not about law enforcement and "justice" - it is about political control!
Paul, England

There will always be cases where true justice is not served

George Holmes, UK
The legal system is operated by people, who are not infallible, therefore the legal system is not infallible. As difficult as it can be to accept, there will always be cases where true justice is not served. Emphasis should be put on improving the quality of criminal investigations to fit in with the existing system, rather than following a hue and cry to remove one of the fundamental principles of justice
George Holmes, UK

The checks and balances imposed under the English legal system, such as that of the rule of double jeopardy, have one simple aim and that is to assert justice. Although a relaxing of such a rule does seem at first light to pose many benefits in the administration of justice it could in fact be the downfall of the system in the future. Malicious prosecution of an innocent citizen could fail the system drastically. Lets ensure that the focus of the legal system remains to establish a fair and just administration of justice, rather than just a platform for the prosecution of the innocent "so to satisfy the public mood".
Andrew Davies, Hampshire, UK

Double jeopardy is a red herring because it appears, to any sensible person, to make the legal system more just, when it actually does the opposite. Allowing more than one trial for the same crime encourages the CPS and the police to do an even poorer job than they do now. I'd rather see a few criminals go free than innocent people go to prison. And that is the foundation of our justice system.
Phil Saum, UK

I find it interesting that many people are worried about crime, yet when the Government propose measures such as this, they complain about civil liberties.
Paul Nash, UK

This issue is one that makes me rather glad to be an American, with rights guaranteed by a written constitution

Larry Brennan, California, USA
This issue is one that makes me rather glad to be an American, with rights guaranteed by a written constitution. The Fifth Amendment to the US Constitution prohibits retrial for the same offence. Any change to this basic doctrine would require the substantial effort of introducing and approving a new amendment. This basic right has not been fully effective at preventing abuse of power by malicious prosecuting authorities, but it has provided a valuable and necessary check on government power. Public outrage at the idea of the guilty walking free is understandable - such a miscarriage of justice is, however, preferable to freeing overly zealous prosecutors, armed with the unlimited resources of the state, to endlessly pursue the innocent.
Larry Brennan, California, USA

For far to long now the police have or must have been frus trated, at seeing who they were sure of committing murder going free. As long as the police have sufficient new evidence to get a conviction, the case should be allowed to go to retrial. We must have faith in the justice system to get it right. There is, I do not think a fairer system in the world.
Steve Fuller, England

It's all well and good discussing the issue of double jeopardy but surely what is actually needed is a re-think of the current legal system in its entirety. We are currently working from a system put in place long before many forms of defence or prosecution were thought of or used and punishments rarely fit the crime anyway. If we could find a way to actually punish criminals that are caught rather than releasing them into society after minimal periods following heinous crimes then double jeopardy would be worth changing. As it currently stands it doesn't really matter if half these people are prosecuted as they will be back out in 6 months anyway!

Justice is denied more and more to people because they don't possess the money to demand it. Shall we have justice on the roulette wheel as well as the bank balance.
Dave Page, UK

We don't keep people in jail who have been wrongly convicted, neither should we ignore evidence that comes to light after an 'innocent' verdict.
Mark, Austria

The presumption of innocence becomes meaningless if we have to defend it over and over and over again

James Price, USA
The double jeopardy law, along with presumption of innocence, are two of many legal buttresses we as individual citizens have to protect us from abuses of power by the state. Overturning it means an a prosecutor, overzealous, or mean spirited, or drunk with power, can try a person, guilty or innocent, until he finds a jury willing agree with whatever arguments he is able to make, right or wrong. The presumption of innocence becomes meaningless if we have to defend it over and over and over again. The state can take control of your life if ever you do anything wrong, and even if you are only wrongly charged. Only fools to believe this is a right-minded change.
James Price, USA

Would a jury really convict someone who has been previously tried and found not guilty?
Nigel Baldwin, UK

No, because it effectively give the prosecution no time limit on the presentation of their case. If you can be acquitted and then they can go away and reinforce the weak points in their case, then no-one can ever be free of the fear that someone will come up with a clever way to reverse the acquittal.
Jon Livesey, USA

People are innocent until proven guilty. It is well known that guilty men walk free as guilt has not been established. Could there not be a compensatory system so that if on the second trial guilt is not established, the defendant may receive compensation?
Anne-Marie Laws, USA but am British

Finally, someone is sticking up for the victims of murder

Vickie Reeves, USA
Finally, someone is sticking up for the victims of murder. I hope the USA follows the lead set by England and Wales. It is rulings such as this that clearly shows why England has been first in the World regarding law and the court system. First DNA evidence and now victim's rights.
Vickie Reeves, USA

There is a simple solution add not proven to the list of possible outcomes as is possible in Scotland. Not proven leaves open the possibility of a future trial should there be new evidence or a technicality that prevents conviction.
Martin Smith, USA (Ex Pat)

Emotional cases make for bad law. The scrapping of the principle of double jeopardy which has stood the test of time for 800 years would be disastrous. Yes guilty people go free but we allow them that right. If the full weight of the law cannot get it right first time then that is tough. The legal system will have had its chance. I could only expect this to happen in a totalitarian state. What is our country coming to???
Steven Roberts, UK

I'm studying the constitution right now in school, and I can see both sides of double jeopardy there is evidence, that can put a guilty person in jail, then double jeopardy stinks. But then again, the state should get it right the first time, instead of violating human rights, and spending all their time searching for one person
Vanessa , U.S

Having served on a jury which split seven to five I found myself amazed at the range of views and even more amazed at the rationale given for the views. I had never suspected how much prejudice and emotional baggage people take with them into the jury room. Our deliberation was almost totally devoid of logic or application of the law. One juror felt the defendant was guilty because he had not lived up to the juror's idea of morality "Never mind the law." Another lady thought he was too "cute" and too "nice" to be guilty. Most of the views seemed to me to have little to do with the evidence or any exercise in logic. Taking a case before a jury is a tremendous risk to the defendant. No one should be forced to dice with the hangman more than once.
Jake Middlebrook, USA

This govt is trying to be more Tory than the Tories. This new idea has the aroma of the police wanting a second bite of the cherry. IF new evidence does come to light and appears to be sufficient for a re-trial, it will create the presumption of guilt in the minds of many people. Couple this to the govt's plans to retain DNA samples of innocent people on file forever causes me great concern about the direction we are heading.
Chris Millbank, London, UK

Appalling that this should be suggested at all and appalling that it should be suggested retrospectively.
Charles Thompson, UK

I think it is entirely reasonable that a new trial takes place when reliable and compelling new evidence of guilt is found.
I.D.Dunn, England

We seem to be increasingly ready to give up on our fundamental rights to fair and impartial treatment under the law

Jon, UK
Chris Klein makes a very good point. On the one hand there is a desire and need for a society to see that justice is done. In this case the arrival of "compelling" new evidence clearly needs to be taken into account. On the other hand, we seem to be increasingly ready to give up on our fundamental rights to fair and impartial treatment under the law; the usual argument being that the innocent have nothing to fear. Any application by prosecution to re-try must be closely controlled. Perhaps a closed hearing in front of a panel of judges to assess this new evidence would be appropriate prior to relaunching a case. This should go some way towards protecting against malicious prosecution.
Jon, UK

If someone is guilty they should be found guilty, no matter how long it takes to prove. When there are miscarriages in the other direction we do not force the wrongly convicted person to remain in prison as the Jury found them guilty
Gavin Stewart, Scotland

In Queensland, a murderer with a history of violent crime was found not guilty after the jury did not believe the main witness and had no prior knowledge of the man's previous history. The man was found guilty by the second jury and put away for life. The second jury didn't convict for the original murder charge. They convicted after the plaintive was proved to have murdered the witness who spoke against him. To date he will never be retried for the first murder.
Peter Haslett, Australia

Nothing is 100% and it will be difficult to change the law and get it done in a fair way

The 'double jeopardy' law should be scrapped. When new, important evidence comes to light, then it SHOULD be used. After all the law should be to protect the innocent, not offer criminals a hiding place.
Jeremy Coates, UK

So the prosecution, who has mystical and infallible knowledge of guilt, will keep sending cases back to the courts until they "get it right"?

No, if the state doesn't do it right the first time, then they should not have a second or third or fourth or fifth go

Michael J Turberville, London
NO, if the state doesn't do it right the first time, then they should not have a second or third or fourth or fifth go, making the persons life hell. Yes you might put one person away for something but what about all the other 99.9999999% of people who would be maliciously tormented for years and years who are not guilty but are found guilty by the media.
Michael J Turberville, London

Allowing a person to be tried more than once for the same charge is wrong. What is 'discovery' of new evidence? Bearing in mind this government has already embarked on political trials (eg G.Pinochet), how can we trust them or their successors not to abuse the opportunity to retry defendants? Mr Klein's observations are spot on in this respect.
Nick, UK

The very real possibility of new DNA evidence establishing the "guilt" of someone previously acquitted of murder, for example, clearly presents a major legal conundrum given the "double jeopardy" rule. But the appeal system should take care of this circumstance, or should be re-written to so accommodate. But to scrap, out of hand, the whole principle of the "double jeopardy" rule is a very dangerous road ... it puts too much latitude in the hands of the state. Doubtless, more EU inspired legislation.
Mark M. Newdick, USA/UK

I also see a concern that this would undermine the psychological and social value of a not-guilty verdict

Chris, England
Overall I am in favour of dropping the double Jeopardy rule, though I have some reservations. Firstly, there should be a limit to its use, so that someone cannot be brought back again and again until the jury makes the "right" decision. Obviously strict rules on requiring new evidence are needed, but maybe some strict limit, like never being tried more than three times. I also see a concern that this would undermine the psychological and social value of a not-guilty verdict. At the moment someone acquitted in court can say that they were "proven innocent". Will the lack of double jeopardy mean that this will come to be seen as "not proved guilty this time", giving a continued slur to the genuinely innocent? Maybe we could redress this balance by following the Scottish lead and allowing a "not proven" verdict. This is used where the defendant gets off on a technicality, or where the jury believes that there was insufficient evidence to prove guilt beyond reasonable doubt. This allows the "innocent" verdict to be used for situations where there was no case to answer, or the jury believes the defendant to be genuinely innocent rather than just not proved guilty.
Chris, England

The double jeopardy rule is a joke - that is, on the innocent victims of crime. I want all thugs and criminals tried with all available evidence and if all evidence does not surface until after their trial, then retry them again. Too often criminals with slick lawyers manage to "beat the system" and laugh all the way to the street where they persecute the innocent yet again. I am so tired of people bleating about human rights as they relate to crime.
Di Stewart, USA

I agree that the present system needs to be changed. It cannot be right that somebody can get away with murder, or any other crime for that matter, such as rape or child abuse, if at a later date the police find evidence which proves that somebody was in fact guilty after all. Just as you have the right of appeal, the law should allow for the right to re-trial, otherwise the system is farcical. We seem to focus too much in this country on the human rights of criminals at the expense of the victims.
Ian Messer, UK

The real problem is sloppy police investigations which do not gather all the relevant evidence in the first place. As we all know from recent miscarriages of justice, the police seem to find it impossible to admit they make mistakes and if double jeopardy is abolished, then it is more likely that the police will continue to pursue the original defendant in the hope of being able to dig up something on him rather than actually do what they are supposed to do, which is to completely reopen the investigation. I have huge sympathy with the Lawrence family but I am with their lawyer Imran Khan on this one.
Andy Richards, UK

Yes providing they have new evidence
Pat, England

This fundamentally undermines one of the key defences of individual liberty
Richard Briscoe, England

The rule of double jeopardy exists to protect the citizen from malicious prosecution and also to encourage the prosecuting authority to get its finger out and do its job properly first time around

Alastair Alexander, UK
The rule of double jeopardy exists to protect the citizen from malicious prosecution and also to encourage the prosecuting authority to get its finger out and do its job properly first time around. The rule is not itself the expression of some great legal principal. It is a practical attempt to stop the authorities abusing their power or getting away with incompetence. So long as any proposed changes do not allow the Police and CPS to abuse their position, or become (even) more slack in their approach, there doesn't seem to be any obvious moral objection to a relaxation in the rule. If the prosecution must go to court before being allowed to bring a attempting a second prosecution, one assumes that the appeal court judge will give them a severe grilling in order to establish why the original prosecution failed.
Alastair Alexander, UK

I think they should look at improving their track record of putting right cases where innocent people have been wrongly convicted before they start tinkering with such things.
John Collins, UK

Just as new scientific technology has lead to the release of wrongly accused prisoners so it will lead to the conviction of the guilty who have slipped through the net the first time due to lack of evidence. It's good.
Jason, UK

This is a catch-22 situation. On one hand the removal of Double Jeopardy would have beneficial results if fresh evidence is found which obviously would convict someone who has wrongly been acquitted. On the other hand there is the scenario where cases may get re-tried many a time over many years. This would be a waste of valuable time, on the parts of the courts, and also an incredible and unnecessary burden on the taxpayer. It could also infringe the right to a fair trial imposed by the European Convention of Human Rights, as incorporated into UK law by the Human Rights Act. There are compelling arguments both for and against the removal of Double Jeopardy, and there is no obvious line to follow in my view.

The main drive for this seems to be the with hunt regarding the accused in the Stephen Lawrence case. It's very dangerous when the law jumps on to media bandwagons
Chris, UK

It might be best if we have another verdict besides "guilty", or "not guilty", something like "unproven by technicalities"

Bruce, UK
Yes you should. A murderer that gets let off on a technicality - such as the guy recently who was let off because an old DNA sample was used, rather than an up to date sample, should be re-tried, once the police correct the technicality on which he was acquitted. This would improve justice for victims of crime and redress the balance between procedures in law and proper justice. If defendants are allowed to rely on new forensic evidence 20 to 30 years on, why shouldn't the police be allowed to use the same scientific improvements to gain convictions once science has moved on and they can get better evidence. It might be best if we have another verdict besides "guilty", or "not guilty", something like "unproven by technicalities" which could be used for all criminal charges to allow the police to correct procedural errors and get justice for victims, not just for murder.
Bruce, UK

Surely if a person is tried for a crime and found innocent but new evidence comes to light indicating their guilt they should be re-tried.
Sharon B, UK

It is a difficult subject. It is easy to say the law it should not be removed. One obvious reason would be that the police will not carry out as thorough investigations if they think they can re-try the person when new evidence comes to light. However - the prosecution should have the right to appeal against an acquittal, just as the defence has the right to appeal against a conviction.
Mark Thomas, England

Yes! It's a matter of applying the same rules to both the prosecution and the defence. At present, if you are convicted and later some evidence proving your innocence comes to light, you can appeal and be acquitted. The same rule should apply to the prosecution: if a suspect has been acquitted and some evidence later comes to light proving his guilt, he should be re-tried and (if appropriate) found guilty. By failing to apply the same rule to both sides, the present legal system is fatally biased in favour of the defendant.
Martin, England

What about human rights, i.e justice for the victim and/or the victim's relatives?

M. M. Zaman, UK in US
Scrapping "double jeopardy" may or may not affect human rights for the accused, but what about human rights, i.e justice for the victim and/or the victim's relatives? I think that Stephen Lawrence's family have and will continue to suffer much more than his cowardly killers ever will-even if they were to be tried and convicted.
M. M. Zaman, UK in US

Of course it should be scrapped. What about the human rights of the victims to justice. If compelling new evidence does come to light then why should the guilty go free.
Mark, UK

If someone is guilty, time or whether to retry a person should not be the issue. Surely, it should be whether they committed the crime or not not if they have been tried or not. I think we should abolish the double jeopardy however there should be strong justification to prevent any harassment or stress.

This government is the most repressive in my living memory and this latest assalt on basic concepts of freedom and justice should be resisted

Chris Klein, UK
What does New Labour mean for justice? Here are some examples: proposed removal of double jeopardy protection; restriction to right to trial by jury; summary seizure of assets that might be the proceeds of crime on the basis of the the balance of probability rather than proof beyond reasonable doubt. This government is the most repressive in my living memory and this latest assalt on basic concepts of freedom and justice should be resisted.
Chris Klein, UK

It's a good idea, there have been instances where damning evidence came to light after the case had been heard, but there was nothing anyone could do. However, I think that there should be a limit of three hearings for any particular case, otherwise if opposing parties (for example the police) have it in for someone they could persistently get new hearings if they can produce fresh evidence. The legal system could potentially turn into a merry go round.
Alex Banks, Wales, Living in Sweden

There is a simple way around this dilemma that could allow re-trials without serious infringement of civil rights - we could adopt a version of the Scottish system, where options are guilty, not guilty, and not proven. If those found guilty can appeal in the light of new evidence, it makes no sense for that not to apply to those whose guilt is not proven. To make things clearer, perhaps the options should be guilty, not guilty, and innocent, and only those found innocent cannot be re-tried. Whatever solution we plump for will have it's own inadequacies, but we should always strive for improvement.
Julian, Wiltshire UK

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16 May 00 | UK Politics
Debate: Double jeopardy
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