17.05.2000

An insidious attack

Heightened government and opposition competition for the 'law and order' vote witnessed Tory shadow home secretary Ann Widdecombe trying to steal Jack Straw's thunder over the weekend by proposing the abolition of the long-standing principle of 'double jeopardy'.

Under the double jeopardy rule a defendant once acquitted cannot normally face charges a second time for the same alleged crime. Double jeopardy is of ancient origin: it was present in Roman law and has been part of English common law for over 800 years. But under this rule, Stephen Lawrence's putative killers Neil Acourt, Luke Knight and Gary Dobson, acquitted in 1996 of murdering him, cannot be retried for the same crime. This is the ostensible reason Tories and New Labourites and various legal honchos are seriously proposing removal of such an established legal safeguard. Widdecombe has incurred New Labour wrath only because she pre-empted the government's own conversion to the same idea.

The Macpherson report on the Stephen Lawrence inquiry came out a little over a year ago. Most pertinently, it recommended that, "Consideration should be given to the court of appeal being given power to permit prosecution after acquittal where fresh and viable evidence is presented; the powers of the prosecution to reinstate criminal proceedings; and also the United Kingdom's international obligations; and to make recommendations."

Almost immediately, home secretary Jack Straw moved the process on, referring the question to the Law Commission of England and Wales. Giving due consideration to Macpherson's words, it issued its preliminary recommendation last October.

Perhaps unsurprisingly, this included the proposal that a new trial should be possible where compelling new evidence had emerged - encroaching on the double jeopardy rule markedly.

Bowing in the direction of the European Convention on Human Rights, the Law Commission was careful to note, "Article 4(1) of the ECHR requires signatory states to have a rule against double jeopardy. Article 4(2) permits them to have certain exceptions to that rule." So, having established this, the commission was able to "conclude that there should not be an absolute bar to the reopening of an acquittal on grounds of new evidence; and that this is so irrespective of whether, in the light of the new evidence, the prosecution now seeks a conviction for a different offence on the same facts ... or for the same offence (which, at present, it may not). We provisionally propose that the rule against double jeopardy should be subject to an exception for certain cases where new evidence is discovered after an acquittal."

Legal opinion has not, however, been universally complaisant. For example, Geoffrey Robertson QC commented: "Double jeopardy is enshrined in almost every human rights treaty devised. It is a principle to protect people against oppression."

Exceptions to the double jeopardy rule under English law already exist, as the Law Commission noted in passing, such as if the jury is interfered with or intimidated. However, what the commission recommends breaks new ground, giving credence to proposals for a new law to widen these exceptions, and allowing new trials to take place on several grounds. Grounds already mooted which could readily be included are (a) new evidence that makes the prosecution case "substantially stronger"; (b) the offence is one serious enough to be punishable by at least three years imprisonment; and (c) there is a near certainty that the defendant will be convicted.

Commentators have already objected to such grounds on the basis that they are partial (what is "substantially stronger" anyway?) and have more than a tinge of loss of 'presumption of innocence' about them.

While the commission had been and still is expected to publish its definitive view on the issue in 2001, which in the normal course of such things would have given the Blairites time to mould public opinion, New Labour has found its schedule to change the law (and liberal minds) cruelly disrupted by Widdecombe. Now each party will have to try to outdo the other and ratchet up their law and order proposals even more in a spurious and mendacious debate, from which the working class is definitely to be excluded. And, sure enough, this week witnessed Straw introducing the idea of day-prisoners as another twist of the screw of his 'get tough' policy.

How will the left, especially the revolutionary left, react to the threat to double jeopardy? Will it be seduced by the desire for justice for Stephen Lawrence into supporting a change in the law that opens the door for the attack on democratic rights in this major way? Communists must be consistent democrats; otherwise they merely bend with the prevailing wind. Widdecombe and Straw and the rest of the disgusting anti-democratic crew may try to cynically use the Stephen Lawrence case to engineer more state control, but communists must resist this latest insidious attack on our rights. By attacking double jeopardy they attack us all.