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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.
Keith L, UK
Removing the 'double jeopardy' rule, removes the presumption of innocence, the fundamental basis of our legal system.
New evidence - new trial.
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?
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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!
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".
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.
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.
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
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.
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.
James Price, USA
Would a jury really convict someone who has been previously tried and found not guilty?
No, because it effectively
give the prosecution
no time limit on
the presentation of
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
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?
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.
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???
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
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.
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.
Appalling that this should be
suggested at all and appalling that it
should be suggested retrospectively.
I think it is entirely reasonable that a new trial takes place when reliable and compelling new evidence of guilt is found.
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
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.
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.
So the prosecution, who has mystical and infallible knowledge of guilt, will keep sending cases back to the courts until they "get it right"?
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.
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.
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.
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.
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.
Yes providing they have new evidence
This fundamentally undermines one of the key defences of individual liberty
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
06 Mar 01 | UK
Double jeopardy law set to go
16 May 00 | UK Politics
Debate: Double jeopardy
12 Oct 99 | e-cyclopedia
Double jeopardy: No more getting away with it?
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