This House would scrap the double jeopardy rule

All the rules and laws that protect the accused at the first trial will be in place at a second - it's not as if the rule of law suddenly disappears. The presumption of innocence, proof beyond reasonable doubt, the right to a fair hearing and competent counsel, the judge's duty to appropriately direct the jury, etc. will all continue to apply and prevent miscarriages of justice from occurring. Nor is the system likely to be overwhelmed with retrials. Much of the current push for the end of the double jeopardy rule comes from the widespread use of DNA testing, which has allowed many old cases to be revisited with compelling new evidence of guilt or innocence. Mark Weston, for example, was convicted at a re-trial after specks of the victim's blood were found on Weston's shoes, justifying the re-opening of the case¹. After a few years, the impact of DNA testing on solving similar cold cases will be expended and there will be very few retrials.
¹ Bate, S. (2010, December 13). 'Loner' convicted of murder in double jeopardy re-trial. Retrieved July 19, 2011, from The Guardian:

Juries will know this is a retrial – because evidence will have to be ‘read’ from the first trial where witnesses have died, because notes from ‘last time’ will be available to advocates and the accused, because the legal procedure of the last trial will be subject to discussion in this one. If a jury knows a case has been brought again, there will be a presumption that the accused is guilty because a higher court has already decided that the new evidence makes the acquitted defendant now look guilty after all, and so granted a retrial. The presumption of innocence will no longer exist. And unless the system is going to be overwhelmed with retrials like this, in which case it would be unworkable, then second trial capacity can only (and rightly) be directed towards ‘exceptional’ cases. Such cases are well known - like that of the murder of Stephen Lawrence ¹. How could individuals face trial again on the same charges, when in the glare of media attention it has been declared they should have been convicted at the first trial? How could they possibly expect a fair trial?

1.Akwagyiram, A. (2008, April 22). The legacy of Stephen Lawrence. Retrieved May 12, 2011, from BBC News:

The problem with the 'double jeopardy' rule is that people who are clearly guilty - because new evidence has emerged, because they've confessed - are not being punished for crimes they have committed. We believe that guilty people should be punished for their crime, and our justice system should be tailored to allow that. In 2009, a footballer in London confessed to murdering his ex-girlfriend at a re-trial after fresh evidence was found to overturn the original verdict¹; under previous double jeopardy laws in Britain, the murderer would have remained free. We have as great a duty to ensure miscarriages of justice are not perpetrated on victims as on accused. An offence committed ten years ago does not cease to be an offence because time has passed, or because the perpetrator has managed to evade justice in the past. The criteria by which the decision to charge an individual is taken ought to be likelihood of guilt, not whether or not they have had a trial before.
¹ BBC News a. (2009, May 21). Cleared man admits killing woman. Retrieved July 15, 2011, from BBC News:

The overriding objective of the justice system is to ensure that the innocent go free, not that the guilty are punished, and the system should be orientated around that objective.

Ex post-facto confessions do not make someone ‘clearly guilty’ as false confessions can arise for a number of reasons, from boasting to an innocent misstatement.

It is also wrong to assume that new evidence is better evidence.  The longer a trial takes place after a crime the less strong the evidence gets; memories get weaker, people go missing, evidence can be damaged etc.  There is also the problem that in a re-trial any tactical advantage of ‘ambushing’ a witness in cross-examination is lost because they know that the ambush is coming.    There are therefore a multitude of reasons why retrials are less likely to achieve convictions than a well prepared first trial.

The scrapping of the double jeopardy would be practicable if it was permitted for serious crimes, like murder and rape, and only when fresh, compelling evidence of guilt emerges that calls into question the original acquittal. Such restrictions on any scrapping of the rule would not tie up courts in re-trials, for they could only be called for certain crimes in certain, restricted conditions. The British Law Commission in a 2011 review concluded that whilst the ancient rule of double jeopardy is of 'fundamental importance', it should be possible to "quash acquittals in murder trials where there is 'reliable and compelling new evidence of guilt'". In practise, this would preserve the traditional advantages of the law, whilst ensuring that those who are guilty, and can be proved so, do not remain free.

Such restrictions on double jeopardy would not be effective in practice, for they attempt to put a value on the relative importance of crimes without using either the prospect of re-offending or the impact on victims. As QC Geoffrey Robertson noted in response to the Law Commission's finding, it is irrational to confine the possibility of re-trials to 'serious crimes' alone and exclude "repetitive, professional" crime like armed robbery. If the intention of the repeal is to bring both offenders to justice and prevent further crime, it is exactly the 'repetitive, professional' criminals who should be targeted.

When we see people still unpunished for offences in society they've clearly committed, it damages our faith in the justice system. Our bargain with the state entails the state's right to judge the individual because the state protects the individual: if our attackers roam the streets because an arbitrary legal rule exempts them from prosecution despite clear guilt, then that system has broken down. When Jennifer McDermott witnessed her daughter's murderer get convicted at a re-trial, she described it as a 'victory for everyone who feels let down by the justice system.'¹ Victims deserve such justice and it is an insult to them, and all of us, to see their persecutors go free. As a Home Office spokesman stated when England overturned the double jeopardy ban, 'it is important the public should have full confidence in the ability of the criminal justice system to deliver justice.'¹ Justice is only applicable when the perpetrators remain within the arm of the law; double jeopardy prevents this.

¹ BBC News a. (2009, May 21). Cleared man admits killing woman. Retrieved July 15, 2011, from BBC News: 
² BBC News. (2005, April 3). Double jeopardy law ushered out. Retrieved May 12, 2011, from BBC News:

Faith in the justice system is derived from it being been to be fair and even-handed.  It is not merely faith on the part of victims that offenders will be found guilty, but faith on the part of innocent defendant that they will be found innocent.

The double jeopardy rule reinforces faith in the justice system because it forces the prosecution service to make the best possible case that they can – because they only get one shot to make it.  It also means that defendants can feel secure in submitting themselves to trial on the basis that an acquittal represents complete security from future accusations.

Abolishing the double jeopardy rule would actually undermine confidence in the system – overturning an acquittal is an explicit statement that the system produces false negatives.  If it becomes widely accepted that a not-guilty verdict is meaningless then the principle of the presumption of innocence loses its force.

All the rules and laws that protect the accused at the first trial will be in place at a second - it's not as if the rule of law suddenly disappears. The presumption of innocence, proof beyond reasonable doubt, the right to a fair hearing and competent counsel, the judge's duty to appropriately direct the jury, etc. will all continue to apply and prevent miscarriages of justice from occurring. Nor is the system likely to be overwhelmed with retrials. Much of the current push for the end of the double jeopardy rule comes from the widespread use of DNA testing, which has allowed many old cases to be revisited with compelling new evidence of guilt or innocence. Mark Weston, for example, was convicted at a re-trial after specks of the victim's blood were found on Weston's shoes, justifying the re-opening of the case¹. After a few years, the impact of DNA testing on solving similar cold cases will be expended and there will be very few retrials.
¹ Bate, S. (2010, December 13). 'Loner' convicted of murder in double jeopardy re-trial. Retrieved July 19, 2011, from The Guardian:

Juries will know this is a retrial – because evidence will have to be ‘read’ from the first trial where witnesses have died, because notes from ‘last time’ will be available to advocates and the accused, because the legal procedure of the last trial will be subject to discussion in this one. If a jury knows a case has been brought again, there will be a presumption that the accused is guilty because a higher court has already decided that the new evidence makes the acquitted defendant now look guilty after all, and so granted a retrial. The presumption of innocence will no longer exist. And unless the system is going to be overwhelmed with retrials like this, in which case it would be unworkable, then second trial capacity can only (and rightly) be directed towards ‘exceptional’ cases. Such cases are well known - like that of the murder of Stephen Lawrence ¹. How could individuals face trial again on the same charges, when in the glare of media attention it has been declared they should have been convicted at the first trial? How could they possibly expect a fair trial?

1.Akwagyiram, A. (2008, April 22). The legacy of Stephen Lawrence. Retrieved May 12, 2011, from BBC News:

The problem with the 'double jeopardy' rule is that people who are clearly guilty - because new evidence has emerged, because they've confessed - are not being punished for crimes they have committed. We believe that guilty people should be punished for their crime, and our justice system should be tailored to allow that. In 2009, a footballer in London confessed to murdering his ex-girlfriend at a re-trial after fresh evidence was found to overturn the original verdict¹; under previous double jeopardy laws in Britain, the murderer would have remained free. We have as great a duty to ensure miscarriages of justice are not perpetrated on victims as on accused. An offence committed ten years ago does not cease to be an offence because time has passed, or because the perpetrator has managed to evade justice in the past. The criteria by which the decision to charge an individual is taken ought to be likelihood of guilt, not whether or not they have had a trial before.
¹ BBC News a. (2009, May 21). Cleared man admits killing woman. Retrieved July 15, 2011, from BBC News:

The overriding objective of the justice system is to ensure that the innocent go free, not that the guilty are punished, and the system should be orientated around that objective.

Ex post-facto confessions do not make someone ‘clearly guilty’ as false confessions can arise for a number of reasons, from boasting to an innocent misstatement.

It is also wrong to assume that new evidence is better evidence.  The longer a trial takes place after a crime the less strong the evidence gets; memories get weaker, people go missing, evidence can be damaged etc.  There is also the problem that in a re-trial any tactical advantage of ‘ambushing’ a witness in cross-examination is lost because they know that the ambush is coming.    There are therefore a multitude of reasons why retrials are less likely to achieve convictions than a well prepared first trial.

The scrapping of the double jeopardy would be practicable if it was permitted for serious crimes, like murder and rape, and only when fresh, compelling evidence of guilt emerges that calls into question the original acquittal. Such restrictions on any scrapping of the rule would not tie up courts in re-trials, for they could only be called for certain crimes in certain, restricted conditions. The British Law Commission in a 2011 review concluded that whilst the ancient rule of double jeopardy is of 'fundamental importance', it should be possible to "quash acquittals in murder trials where there is 'reliable and compelling new evidence of guilt'". In practise, this would preserve the traditional advantages of the law, whilst ensuring that those who are guilty, and can be proved so, do not remain free.

Such restrictions on double jeopardy would not be effective in practice, for they attempt to put a value on the relative importance of crimes without using either the prospect of re-offending or the impact on victims. As QC Geoffrey Robertson noted in response to the Law Commission's finding, it is irrational to confine the possibility of re-trials to 'serious crimes' alone and exclude "repetitive, professional" crime like armed robbery. If the intention of the repeal is to bring both offenders to justice and prevent further crime, it is exactly the 'repetitive, professional' criminals who should be targeted.

When we see people still unpunished for offences in society they've clearly committed, it damages our faith in the justice system. Our bargain with the state entails the state's right to judge the individual because the state protects the individual: if our attackers roam the streets because an arbitrary legal rule exempts them from prosecution despite clear guilt, then that system has broken down. When Jennifer McDermott witnessed her daughter's murderer get convicted at a re-trial, she described it as a 'victory for everyone who feels let down by the justice system.'¹ Victims deserve such justice and it is an insult to them, and all of us, to see their persecutors go free. As a Home Office spokesman stated when England overturned the double jeopardy ban, 'it is important the public should have full confidence in the ability of the criminal justice system to deliver justice.'¹ Justice is only applicable when the perpetrators remain within the arm of the law; double jeopardy prevents this.

¹ BBC News a. (2009, May 21). Cleared man admits killing woman. Retrieved July 15, 2011, from BBC News: 
² BBC News. (2005, April 3). Double jeopardy law ushered out. Retrieved May 12, 2011, from BBC News:

Faith in the justice system is derived from it being been to be fair and even-handed.  It is not merely faith on the part of victims that offenders will be found guilty, but faith on the part of innocent defendant that they will be found innocent.

The double jeopardy rule reinforces faith in the justice system because it forces the prosecution service to make the best possible case that they can – because they only get one shot to make it.  It also means that defendants can feel secure in submitting themselves to trial on the basis that an acquittal represents complete security from future accusations.

Abolishing the double jeopardy rule would actually undermine confidence in the system – overturning an acquittal is an explicit statement that the system produces false negatives.  If it becomes widely accepted that a not-guilty verdict is meaningless then the principle of the presumption of innocence loses its force.

Respect for the law will diminish if criminal verdicts exist in a perpetual state of uncertainty. We need to be protected from the state in other ways, too - from the vindictive or obsessed policeman that will pursue a case because he 'knows' the accused, properly acquitted in a court of law, to be guilty nevertheless. The nature of our police force means that these instances are inevitable as it imparts a strong cognitive bias onto our policemen to look for guilt - so unless we mandate a rule determining when a line of investigation has to end, police will continue to focus on their chosen 'perpetrator' until they get the result that they have decided is correct. As Matthew Kelly QC notes, removing double jeopardy restrictions could 'lead to prosecutions routinely seeking a second bite of the cherry, if a case flopped first time for good reason.'¹

Given that we are talking about a tiny proportion of cases, it is better to have the principle of finality - because the police will spend vast amounts of time and effort and money on case that are already resolved, to the detriment of crimes that will receive less attention. Therefore successful detective work, and subsequent conviction rates, will increase with the double jeopardy rule in place, not decrease, for police cannot allow themselves to remain rooted in closed cases.
¹ BBC News. (2005, April 3). Double jeopardy law ushered out. Retrieved May 12, 2011, from BBC News:

The rule of law, by its very nature, serves the cause of justice. In doing so, it is often overturned, but only in order to ensure that justice is delivered and offenders punished. Protection from the state therefore is a principle that is relinquished by those who commit crimes; it is the protection of the state from such people that thereafter becomes paramount. The double jeopardy rule enshrines in law that the key factor in any trial is the quality of police work up to that point, rather than the actual guilt of the defendant. If abolished, vindictive policemen will not affect the integrity of the justice system, the case will still be judged by the quality of the evidence whilst the defendant will have recourse to protest their innocence. The potential for innocent people to go through the stress of further trials is a price worth paying to ensure the guilty do not walk free.

We’re not just protecting ‘evil people’. The double jeopardy rule protects everyone from the danger of constant harassment from the state. The opposition would rather see a guilty man occasionally go free than see the resources of the state trained on individuals again and again and again, ‘until the state secured (the) popular result’ ¹. The double jeopardy rule provides closure for both defendants and the prosecution; if the prosecution regret their case in the future, the fault lies not with the double jeopardy rule itself, but their decision to go to trial based on insufficient evidence. Citizens should not be forced to go through the stress of multiple trials due to the incompetence of the state. ‘If a person accused of a serious crime is acquitted, they are entitled to have some certainty in their future’². That certainty can only be guaranteed if the prosecution is granted one attempt at a conviction, and one only.

1.The Independent. (2002, July 18). The abolition of double jeopardy will undermine confidence in British justice. Retrieved May 11, 2011, from The Independent:

2.Bosscher, M. (2006, November 10). Danger in abolishing double jeopardy rule. Retrieved May 12, 2011, from Online Opinion: 

The people who are protected by this rule are the guilty who are wrongly declared innocent; the murderer whose voice couldn’t be identified on the tape; the rapist who couldn’t be identified because DNA testing wasn’t sufficiently developed at the time; the robber who couldn’t be identified because facial mapping technology didn’t exist to show their face beneath the mask.  People may in unguarded moments confess to crimes for which they have been found not guilty. Why would the state be in their favour and against the victims that so deserve justice - why should victims suffer because evidence didn’t emerge until later? 

The test for guilt will still be 'reasonable doubt' - defendents who are genuinely innocent have no need to fear because they will still be found innocent.

The implications of this should be looked at carefully. This would grant police and the prosecution the right to prosecute an individual if the evidence against them can be ‘reanalysed.’ Surely almost all cases could see such ‘improvement in investigatory techniques,’ allowing the state to pursue individuals at will. Presumably this ‘generation’ of techniques isn’t the last; why won’t the same logic hold in asking for a third trial? A fourth? A fifth?…Subsequently, if the ‘double jeopardy’ rule is scrapped, police work will be sloppier, because police detectives will know that the insurance of a second trial exists. The ‘one-shot’ rule forces investigations and prosecutions to be of as high a quality as possible. The abolishment of double jeopardy would be ‘merely a shortcut to prosecutors seeking unlimited re-trials until they get the verdict they want’ ¹. Courts cannot be permitted to be tied up in such cases, nor can prosecutors be allowed to destroy the lives of defendants by enforcing such constant emotional turmoil.

1.Bosscher, M. (2006, November 10). Danger in abolishing double jeopardy rule. Retrieved May 12, 2011, from Online Opinion: 

Vast improvements in the technology of crime-solving have occurred in recent times to ensure that defendants brought to trial are done so appropriately. DNA testing, voice identification technology, facial mapping techniques that reveal faces beneath masks - all can now solve cases and show guilt in individuals whose escape from punishment occurred only because of a lack of satisfactory evidence. For example, In 1963 when Hanratty stood trial for the A6 murder (a gruesome offence where the abused victim was shot in her car and left to die on the motorway), semen stains on the victim's underwear could not be investigated using the technology of the day¹. He was convicted anyway on the facts, but if he hadn't been, and thanks to advances in technology the sperm turns out later to be his (as it has), shouldn't we use that evidence to obtain justice for those concerned? Some evidence couldn't possibly have been used at the time of trial, because the technology doesn't exist. Looked at now, it could demonstrate conclusive guilt. If such evidence exists, isn't there a compulsion to use it?² How can we ignore it?

¹ Foot, P. (2000, July 25). Hanratty was innocent. Retrieved May 12, 2011, from Guardian: 
² The Independent. (2002, July 18). The abolition of double jeopardy will undermine confidence in British justice. Retrieved May 11, 2011, from The Independent: