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Sections in this issue outline (in order):
1. What they said. 2 The issue at a glance. 3 Background. 4 Internet information links. 5 and 6 Arguments for / against. 7 Further implications on this issue. 8 Newspaper items used in the compilation of the outline.
2003/09: Should double jeopardy provisions in Australia be substantially cut back?
What they said ...
'[To] abolish the rule of double jeopardy will mean that a person accused of a crime will be perpetually considered a criminal even if acquitted'
Mr Robert Hulls, Victoria's Attorney-General
'We owe it to the victims of these crimes to make sure the guilty are brought to justice'
Mr Bob Carr, New South Wales Premier
The issue at a glance
On April 10, 2003, the Standing Committee of Attorneys-General of Australia announced it would review the double jeopardy principle. The Federal Government supported the Committee's decision to review double jeopardy.
The double jeopardy rule prevents a person who has been tried and acquitted of an offence from being tried again for an offence relating to the same conduct or event.
Much of the impetus for the Committee's decision to review the rule appears to have come from New South Wales.
In February 2003, six weeks prior to the New South Wales election, the NSW premier, Mr Bob Carr, declared that if re-elected his government would overturn the double jeopardy rule. The Carr Government was returned in April and now plans to abolish double jeopardy.
It is unlikely that other states would be happy to see this principle differently applied in different state jurisdictions. This creates a problem as though Queensland and Western Australia support reviewing the principle, Victoria seems less anxious to see it fundamentally changed.
The Prime Minister, Mr Howard, has indicated he would back changes to allow for retrials in exceptional circumstances.
Background
The situation in Britain
As it currently operates in Great Britain, the law does not permit a person who has been acquitted or convicted of an offence to be retried for that same offence - this risk of retrial is known as "double jeopardy". This provision has been part of common law for some 800 years.
There are two principles arising from the common law that the defendant being placed in double jeopardy. These principles prohibit the trial, for the same offence, of a person who has previously been either acquitted or convicted of that offence.
In addition, the courts may consider it an abuse of process for additional charges to be brought, following an acquittal or conviction, for different offences that arose from the same behaviour or facts.
The Blair Government has put before the British Parliament a Criminal Justice Bill 2002. This Bill is currently at its third reading stage and is extremely likely to become law. One of the effects of this Bill once it is passed will be to alter the operation of double jeopardy provisions in Britain.
The British Government considers that the law should be reformed to permit a retrial in cases of serious offences where there has been an acquittal in court, but compelling new evidence subsequently comes to light that indicates that the acquitted person was in fact guilty.
The British changes propose that the double jeopardy rule be suspended only if the Court of Appeal is satisfied that ordering a retrial is "right in all the circumstances".
A retrial could be ordered only for offences for which the consequences for victims or for society as a whole are particularly serious. These include murder, manslaughter, rape and offences involving firearms. In all thirty offences are listed.
The law will operate retrospectively. This means that defendants already acquitted before the Bill becomes law will still be able to be retried.
The impetus for the British review of the double jeopardy rule came from the Stephen Lawrence case.
Stephen Lawrence was an 18-year-old black youth who in April 1993 was set upon and fatally stabbed by a gang of white youths. His parents were extremely critical of the cursory manner in which their son's death was investigated and a year later launched an unsuccessful private prosecution of the young men they believed had killed their son. Under the terms of the double jeopardy rule, this unsuccessful prosecution effectively ruled out any further charges being brought against these young men in relation to the death of Stephen Lawrence.
In February 1997 the Coroners court ruled Stephen Lawrence death an 'unlawful killing'. Shortly after the Daily Mail newspaper began a media campaign against the young men whom the Lawrence family believed responsible for Stephen Lawrence's death.
In July 1997 the Government established the McPherson Inquiry into the Lawrence investigation and the general police handling of racially motivated crimes.
In February 1998 the Blair Government embraced the 70 recommendations of the McPherson Inquiry and promised to break down 'institutionalised racism'.
In April 2001 the Law Commission, the official law reform body for England and Wales, recommended that the rule against double jeopardy be changed with regard to murder. The Law Commission announced the reform in response to one of the tentative recommendations of the government convened McPherson Inquiry into the death of black teenager, Stephen Lawrence.
In September 2001 Lord Justice Auld's review of the Criminal Courts was released. This also recommended a review of the double jeopardy provisions.
On November 21, 2002, the Criminal Justice Bill was presented to the British Parliament and had its first reading. It included provisions to amend the double jeopardy rule.
The situation in The United States
The Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States provides that no person "shall . . . be subject for the same offence to be twice put in jeopardy of life or limb . . ."25
This protection is not limited to capital felonies (that is, crimes punishable by death); it also applies to offences for which lesser penalties, such as imprisonment and monetary penalties, can be imposed.26
The guarantee against double jeopardy consists of three separate constitutional protections.27 It protects against a second prosecution for the same offence after acquittal, a second prosecution for the same offence after conviction, and multiple punishments for the same offence.'
The situation in Australia
The double jeopardy provision currently operates in Australia as it traditionally has in Britain.
On April 10, 2003, the Standing Committee of Attorneys-General of Australia announced it would review the double jeopardy principle. The Federal Government supported the Committee's decision to review double jeopardy.
In February 2003, six weeks prior to the New South Wales election, the NSW premier, Mr Bob Carr, declared that if re-elected his government would overturn the double jeopardy rule. The Carr Government was returned in April and has announced plans to abolish double jeopardy.
Queensland and Western Australia support reviewing the principle, Victoria seems less anxious to see it fundamentally changed.
The Prime Minister, Mr Howard, has indicated he would support changes to allow for retrials in exceptional circumstances.
The impetus for a review of double jeopardy provisions in Australia seems to have come from the case of Deidre Kennedy a 17-month-old baby girl who was abducted, sexually assaulted and killed in Queensland in 1973.
Ten years later a man was successfully prosecuted for the child's murder. This conviction was overturned on appeal. A later conviction for perjury in the first trial was overturned on the grounds that the perjury trial violated the principle of double jeopardy.
Internet Sources
An overview of the British Criminal Justice Bill 2002, including its double jeopardy provisions can be found at http://www.parliament.the-stationery-office.co.uk/pa/cm200203/cmbills/008/en/03008x--.htm
The British Parliament's Select Committee on Home Affairs Report on Double Jeopardy, issued in June 2000, outlines the arguments for and against retaining the double jeopardy provisions in their traditional form.
This report can be found at http://www.parliament.the-stationery-office.co.uk/pa/cm199900/cmselect/cmhaff/190/19003.htm#note17
A summary of Lord Justice Auld's review of the Criminal Courts of England and Wales, including his recommendations re the double jeopardy rule can be found at http://www.criminal-courts-review.org.uk/summary.htm
The British Law Society's response to the White Paper outlining the Criminal Justice Bill can be found at http://www.lawsoc.org.uk/dcs/pdf/ResponseToWhitePaperJusticeForAll.pdf
The Society's response is critical of the bill. Points 19 through 22 of its response refer to the double jeopardy principle.
The British civil liberty organisation, Liberty, has published a press release criticising the Crimainal Justice Bill, including its double jeopardy provisions.
This can be found at http://www.liberty-human-rights.org.uk/press/press-releases-2002/criminal-justice-bill-liberty-response.shtml
The World Socialist Website has published a report of the British Law Commission's recommendations re double jeopardy provisions. The report is highly critical of the Law Commission's proposals.
This critique can be found at http://www.wsws.org/articles/2001/apr2001/jeop-a13.shtml
An editorial in the Adelaide Advertiser supporting British attempts to reform double jeopardy provisions and recommending that similar action be taken in Australia was published on November 18, 2002.
A full text of the editorial can be found at http://www.theadvertiser.news.com.au/printpage/0,5942,5506032,00.html
Arguments against the double jeopardy rule
1. It does not allow for a retrial in response to the discovery of significant new evidence.
Minister for Justice and Customs, Senator Chris Ellison has argued there might be scope to modify the [double jeopardy] rule to allow a new trial in exceptional circumstances. For example ... if compelling new evidence became available through new technology such as DNA analysis.
According to this line of argument, a failed prosecution does not have to occur because of inadequacies in the initial prosecution or police investigation. This is particularly the case where advances in technology make evidence available that could not have been presented at the time the case went to trial.
It is argued that with DNA evidence now a vital part of police investigations, new light is shed constantly on criminal cases that once appeared clear-cut.
This position was put strongly in an editorial published in the Adelaide Advertiser in November, 2002. The editorial states, 'Let's imagine, for a moment, that a person was acquitted of a murder 20 years ago. Evidence about blood samples was largely circumstantial and inconclusive and the jury had its doubts. The verdict must be not guilty. Today, DNA testing of those blood samples would prove beyond doubt what science could not prove 20 years ago. If police reopened the case they might be able to prosecute successfully. Under the present law they can't.'
2. The double jeopardy rule does not allow for a retrial in the event of a 'tainted acquittal'.
There are many who believe that when documents had been forged or witnesses or juries have been bribed or coerced then this should constitute grounds for a retrial.
An acquittal achieved by any of the above means is referred to in Britain as a 'tainted acquittal'. This was introduced in Britain on 15th April 1997, under Sections 54/57 of the Criminal Procedures and Investigation Act 1996 and as of 1999 there had been no acquittals ruled invalid on these grounds.
The British Law Commission in a consultation paper completed on June 26, 2000 announced its intention to recommend an extension of the 'tainted acquittal' provision to include attempts to bribe or coerce judges.
Many of those in Australia who support limitations on the double jeopardy rule believe that the double jeopardy principle should not operate where a defendant has been acquitted after a trial tainted in any of the above listed ways.
3. The double jeopardy rule is biased in favour of the defendant and minimises the rights of the victims of crime.
It is claimed that the double jeopardy rule gives undue weight to the rights of the defendant. According to this argument, the victims of crime and their families are entitled to see the person who committed a crime against them receive the appropriate verdict.
Select British Committee on Home Affairs Third Report on Double Jeopardy stated on June 8, 2000, ' The law must be concerned to prevent miscarriages of justice not just to the defendant but also to the victim who may be at risk if an offender is wrongly acquitted - the victim has as much need for finality as the accused.'
Ms Annabelle James, Lecturer in Law, Leeds Business School, Leeds Metropolitan University suggested that the present provisions may unreasonably favour the rights of the defendant over those of the victim.
Ms James stated, 'Given ... the growing recognition of the interests of victims within the criminal justice process, the present rules are arguably too absolute in favour of the defendant.'
The New South Wales premier, Mr Bob Carr, has made a similar point. Mr Carr has stated, 'We owe it to the victims of these crimes to make sure the guilty are brought to justice.'
The British Prime Minister Mr Tony Blair, in defending his government's proposal to substantially reduce the operation of the double jeopardy rule, stated, 'We will rebalance the system emphatically in favour of the victims of crime. Offenders get away too easily.'
The British Home Secretary, Mr David Blunkett, has also stated, 'The people of this country deserve a criminal justice system which works in the interest of justice and puts the victim first.'
4. The double jeopardy rule does not promote the discovery of the truth.
The double jeopardy rule means that once a defendant has been found not guilty there is no longer any reason for the police to continue to investigate that person as even if further incriminating evidence were to come to light it could not be used against the defendant in a court of law.
Critics argue that this discourages further inquiry and brings some cases to a premature close. This point has been made by Melbourne QC Peter Faris, who has stated 'The problem is that the police stop investigating after someone is acquitted, so no one knows how many miscarriages of justice there may have been.'
Some supporters of the double jeopardy rule have acknowledged this point. Judge and member of the British House of Lords, Lord Richard Wilberforce, has commented, 'It is said that in [prohibiting double jeopardy] the law is preferring justice to truth. That may be so: those values cannot always coincide.' However, critics of the double jeopardy rule argue that without truth there is no justice.
5. The defendant can be protected from persecution and a presumption of guilt.
It has been argued that legislative provisions can be put in place to insure that an acquitted defendant is not persecuted by the on-going possibility of renewed prosecution.
Firstly, it has been claimed there would be strict controls placed on those grounds that could be used to justifying a retrial. The most commonly cited justification for such a retrial is 'compelling new evidence', however, reference is also made to the coercion or bribing of witnesses or jury members as possible grounds for a retrial. Whatever the precise grounds, supporters of this reform claim they would be limited and clearly enforced.
Secondly, a higher court would have to decide that a retrial was warranted. In the British legislation the Appeals Court would make this decision.
Thirdly, it would only be serious crimes for which a retrial would be possible.
Fourthly, there would be a limit to the number of retrials that could be mounted. It is generally proposed that only one retrial would be allowable.
On the question of the presumption of innocence, it has been argued that this principle can be preserved even in a retrial. Chris Corns, a senior lecturer in law and legal studies at Melbourne's Latrobe University, has argued, 'There can still be a fair trial because of the common law power of judges to make directions to juries that they not infer guilt from a whole range of facts.'
Arguments in favour of the double jeopardy rule
1. The double jeopardy rule prevents the persecution of defendants
This argument is founded in part on the imbalance in power and resources between the defendant and the state. Double jeopardy is intended to prevent the state from using its far greater resources to continue to pursue a defendant despite a not guilty verdict.
Those who support the double jeopardy rule argue that the law must remain a prosecutor not a persecutor.
High Court justices, Murray Gleeson and Kenneth Hayne, have argued, 'Without safeguards, the power to prosecute could readily be used by the executive as an instrument of oppression.'
The president of the New South Wales Bar Association, Bret Walker, has stated, 'This is not some quirky law from dim, dark English history. It's a practical balance between the power of the state and the rights of the individual, and it is observed by many countries.'
There is also concern that removing the double jeopardy rule could be socially discriminatory as defendants who are less well educated and less able to afford legal representation are likely to be most adversely effected.
It has also been argued that the use of DNA evidence to force the retrial of an acquitted person places the defendant at a particular disadvantage. Greg Connellan, the president of Liberty Victoria has noted that the defendant does not have the resources to match police technology and usually does not have access to the crime scene. This makes its difficult for a defendant to effectively challenge DNA evidence.
2. The double jeopardy rule gives finality to acquittals
High Court justices, Murray Gleeson and Kenneth Hayne, have argued, 'Finality is an important aspect of any system of justice.'
This point has been elaborated by Melbourne barrister David Neal, who claims, 'The law is expensive and long enough anyway and in the interests of justice there has to be some kind of finality.'
Judge and member of the British House of Lords, Lord Richard Wilberforce, has commented, 'Any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility, and having reached that solution it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interests of peace, certainty, and security, it prevents further inquiry.'
A similar point has been made by Robert Hulls, the Victorian Attorney-General. Mr Hulls has stated, 'If you abolish double jeopardy an accused person ... will be perpetually considered a suspected criminal ...'
3. The double jeopardy rule discourages slipshod police work
It has been argued that if the police are aware that a defendant can be acquitted and retried for the same crime, there is less pressure on them to investigate the case thoroughly the first time round.
The Australian Council of Civil Liberties has made this point, claiming the principle of double jeopardy should not be overturned because to do so would promote slipshod police work.
Critics note that the two high profile British cases that have lead to a call for a relaxing of the double jeopardy principle in that country have both involved careless police work.
These were the 1993 killing of a black teenager, Stephen Lawrence, by white youths, and the death of a 10-year-old Nigerian immigrant, Damilola Taylor, in November, 2000. In each case the failure to secure a conviction was in large measure the result of poor or sloppy police work.
It has been argued that allowing the prosecution to retry an acquitted person would only result in less careful police investigations, as investigating officers would be aware that they may be given a second opportunity to establish a case. This, it is claimed, would reduce the incentive for them to get it right the first time.
In a response to the British White Paper recommending the abolition of the double jeopardy rule in certain cases, the lobby group Justice asked 'Should inadequate or incompetent investigators or prosecutors be rewarded by being able to resume inquiries after a trial process that has highlighted the gaps in their case?'
4. The double jeopardy rule discourages arbitrary, malicious or careless prosecutions.
A malicious prosecution is one where an action is instituted with the intention of injuring a defendant and without probable cause. Arbitrary prosecution does not have to involve the intention to cause the defendant harm, but again it is characterised by insufficient grounds or a lack of probable cause for the prosecution to have been mounted. Careless prosecutions may simply have been improperly prepared so that there is little or no likelihood of a guilty verdict being brought down.
In all of the above forms of prosecution, the fault lies with the prosecuting attorneys and their actions generally impact unfairly on the person being accused of a crime. It is argued that the principle of double jeopardy encourages prosecutors to only bring an action when they have a substantial case against the accused.
Former High Court chief justice, Anthony Mason, has made this point. Though Mason favours a review of the current double jeopardy provisions he is concerned that any reform should ply give licence to the prosecution to pursue a case without due care.
Mason has stated, 'If you make the exception to the double jeopardy rule too wide, then you are opening up a way for the prosecution to retry an individual when, in fact, the prosecution has simply overlooked something at the first trial.'
5. The abolition of the double jeopardy rule would remove the presumption of innocence.
A central tenant of all legal systems based on English law is the 'presumption of innocence'. This means that a person accused of a crime is presumed to be innocent unless the prosecution succeeds in establishing guilt beyond a reasonable doubt. This presumption of innocence frees the accused person of the burden of having to establish his or her innocence. It is intended to protect the accused from frivolous or malicious prosecution and recognises that the state has far greater resources with which to mount a prosecution than an individual citizen has with which to try to establish his or her innocence.
Critics are concerned that in overturning the double jeopardy rule we may also lose this presumption of innocence for people who are retried. According to this argument, juries would be aware that some 'compelling new evidence' had been discovered to justify the retrial and that a higher court had recommended that the retrial occur.
This point has been made by British QC Michael Mansfield, who has said, 'The facility to be tried twice cannot be accomplished without substantial inroads into the presumption of innocence. There is no way to prevent a second jury from realising that the case it is dealing with is one in which there has previously been an acquittal followed by a high court's decision that there is compelling fresh evidence of guilt.'
British lawyer, Imran Khan, who acted for the Lawrence family after the racially motivated murder of their 18-year-old son Stephen, has made the same point.
Mr Khan has stated, '"Imagine a jury sitting in the trial who know a High Court judge has looked at the evidence and has said it is compelling and should lead to conviction."
Further implications
The implications of current attempts to overturn double jeopardy provisions are concerning. Much of the criticism of these rules in both Britain and Australia centres on their antiquity. The argument appears to be that anything as old as the double jeopardy provisions cannot possibly be appropriate for today.
There is also the rather complacent belief that no Australian or British citizen could possibly be persecuted by the State.
One of the concerning aspects of those who argue against the double jeopardy provisions is the two emotionally charged cases that have given rise to calls for law reform in both Britain and Australia.
The shocking nature of the Deidre Kennedy murder appears to have left many people understandably anxious that the child's killer be brought to justice. However, the conviction was first overturned on appeal because of the dubious nature of the forensic evidence that had led to the guilty verdict.
Despite the lack of substantial evidence the pressure to secure a conviction in this case remains and has been instrumental in having a number of premiers and former chief justices support the partial abolition of the double jeopardy principle.
What this would seem to indicate is that in a high profile case the pressure to push for a retrial after an unsuccessful prosecution would be enormous. This may well result in persecution of the accused. It also seems unlikely that the presumption of innocence could be retained at a retrial.
Though we clearly do not want criminals set free, we surely do not want innocent people incarcerated. Removing the double jeopardy provisions could well result in this.
Sources
The Age
12/4/03 page 14 news item by Fergus Shiel, 'Double jeopardy rule faces review'
17/4/03 page 17 editorial, 'Taking another look at double jeopardy'
The Australian
11/2/03 page 3 news item by Scott Emerson and Monica Videnicks, 'Beattie backs jeopardy law reform'
11/2/03 page 9 analysis by Richard Yallop, 'Split verdict on retrials'
11/2/03 page 10 cartoon by Nicholson
12/2/03 page 4 news item by David Nason, 'Revival hopes for jeopardy civil case'
13/2/03 page 2 news item by Alison Crosweller and Monica Videnieks, 'Bracks will retain double jeopardy'
15/2/03 page 3 news item by James Walker, 'Laboratory bungle wrecked ironclad evidence in Kennedy killing'
15/2/03 page 21 analysis by James Walker, 'Body of evidence'
19/2/03 page 12 analysis by John Camplin, 'Twice the danger as ancient law goes on trial'
10/4/03 page 8 news item, 'PM backs double jeopardy reform'
11/4/03 page 11 news item by Ashleigh Wilson and James Madden, 'Mother's plea on jeopardy changes'
12/4/03 page 19 news item by Alison Crosweller and Ashleigh Wilson, 'Law chiefs test double jeopardy'
26/4/03 page 23 analysis by Paul Toohey, 'Matter of principle'
The Herald Sun
12/2/03 page 18 comment by Sarah Henderson, 'Justice out of jeopardy'