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This House would scrap the double jeopardy rule
This House would scrap the double jeopardy rule
Double jeopardy is a long-standing legal principle existing in many countries which dictates that a defendant cannot be tried twice for the same crime. Along with habeas corpus, it is one of the oldest rules of English law, dating back to the 12th century. Article four of the optional Seventh Protocol to the European Convention on Human Rights states that nobody may be tried or punished in criminal proceedings for an offence for which he or she has already been cacquitted or convicted. Double jeopardy is prohibited in the USA by the 5th amendment to the US constitution.
In the UK there are several exceptions to the rule (See s.78-79 Criminal Justice Act 2003); most notably where new and compelling evidence has arisen and it is in the 'interests of justice' to prosecute again. In the US, the rule is stricter - only non-final judgements or fraudulent trials may be set-aside and reheard.
It is important to note the difference between a retrial following a mistrial and the double-jeopardy rule. It is not uncommon for jurisdictions to allow for trials to be stopped and heard afresh should there be some technical error or misconduct that prevents the original trial from continuing in a fair and just manner. The double-jeopardy rule applies after a trial has been successfully completed. The crucial difference between the two circumstances is that in the latter there exists a verdict which would nominally be considered conclusive on the matter.
The issues that arise in this debate depend upon the the exact mechanism being proposed. In order to avoid clashes with the definition of the status quo it is reccomended that the motion require the proposition to be bold and absolutely abolish the rule.
|Points For||Points Against|
|The rules and laws that protect the accused will remain at retrial||The rule of law means less if it is being constantly overturned|
|Abolishment of double jeopardy would ensure the guilty do not escape punishment||Double jeopardy protects the acquitted from the threat of constant harassment by the state|
|Double jeopardy could be abolished by state legislatures for all serious crimes whereby fresh, compelling evidence emerges||Double jeopardy ensures defendants are not brought to trial on weak grounds|
|Abolishment of the rule would restore faith in the justice system|
Remember to choose a winning argument!
The rules and laws that protect the accused will remain at retrial
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?Improve this
Abolishment of double jeopardy would ensure the guilty do not escape punishment
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.Improve this
Double jeopardy could be abolished by state legislatures for all serious crimes whereby fresh, compelling evidence emerges
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.Improve this
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.Improve this
Abolishment of the rule would restore faith in the justice system
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.Improve this
The rule of law means less if it is being constantly overturned
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.Improve this
Double jeopardy protects the acquitted from the threat of constant harassment by the state
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.Improve this
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.Improve this
Double jeopardy ensures defendants are not brought to trial on weak grounds
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.Improve this
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:
A Reed Amar, ‘Double Jeopardy Law Made Simple’ (1997) 106 Yale LJ 1807
Ian Dennis, ‘Rethinking Double Jeopardy: Justice and Finality in Criminal Process’,  Crim LR 933
Ian Dennis, ‘Prosecution Appeals and Retrial for Serious Offences’  Crim LR 619
Gavin Dingwall, ‘Prosecutorial Policy, Double Jeopardy and the Public Interest’ (2000) 63 MLR 268
David Hamer, '(Dys)functional Double Jeopardy Reform in Queensland' (2008) 19(1) Public Law Review 12
David Hamer, 'The Expectation of Incorrect Acquittals and The New and Compelling Evidence Exception to Double Jeopardy' (2009) 2 Criminal Law Review 63
Jill Hunter, “The Development of the Rule Against Double Jeopardy” (1984) 5 Journal of Legal History 3
Michael Kirby, ‘Carroll, Double Jeopardy and International Human Rights Law’ (2003) 27 Crim LJ 23
Charles Parkinson, ‘Double Jeopardy Reform: The New Evidence Exception for Acquittals’ (2003) 26 UNSWLJ 603
Paul Roberts ‘Acquitted Misconduct Evidence and Double Jeopardy Principles, From Sambasivam to Z’  Crim L R 952
Paul Roberts, ‘Double Jeopardy Law Reform: A Criminal Justice Commentary’ (2002) 65 MLR 393
Maxwell & Mansell v R  EWCA Crim 2552 (new evidence, acquittal quashed, retrial ordered)
R v A  EWCA Crim 2908 (new evidence from other victims, acquittal quashed, retrial ordered)
R v B(J)  EWCA Crim 1036 (new evidence from accomplice, unreliable, application dismissed)
R v Carroll (2002) 213 CLR 635 (perjury conviction quashed, inconsistent with murder acquittal)
R v Dunlop  1 WLR 1657 (new confession evidence, acquittal quashed, retrial ordered)
R v Dobson  EWCA 1256 (new scientific evidence, acquittal quashed, retrial ordered)
R v G(G) & B(S)  EWCA Crim 1077 (new evidence from accomplice, unreliable, application dismissed)
R v Miell  1 WLR 627 (new confession unreliable, application dismissed)
R v Weston  EWCA Crim 1576 (new forensic evidence, acquittal quashed, retrial ordered)
Legislation creating scope for quashing of appeals (a selection)*
Criminal Code 1899 (Qld) Ch 68
Crimes (Appeal and Review) Act 2001 (NSW) Pt 8 Div 2
Criminal Justice Act 2003 (UK) (‘CJA’) Pt 10
Criminal Procedure and Investigations Act 1996 (UK) (‘CPIA’) ss 54-57
* Similar legislation has been passed in Tasmania, South Australia and Ireland and is currently being considered in other jurisdictions.
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