November 26 2021

Stephen Lawrence and double jeopardy

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Stephen Lawrence and double jeopardy

Gary Dobson and David Norris were yesterday sentenced for their part in the murder of Stephen Lawrence in 1993. Mr Justice Treacy sentenced them on the basis that theirs was ‘a terrible and evil crime for no other reason than racial hatred’.

The Lawrence family spoke emotionally on the steps of The Old Bailey of their hope that their lives can move on and their wish that, despite the difficulties, the remainder of the killer gang could be brought to trial. In the lead-up to the sentencing of Gary Dobson and David Norris, commentators were fascinated by the long-term impact of the Lawrence case on the law. There are now specific offences for non-fatal racially aggravated offences and sentencing in murder is specifically ‘aggravated’ allowing for a greater penalty where the killing is racially-motivated.

Any teenage racist thug is warned by the current publicity that sentencing will be a great deal higher than it was for Norris and Dobson who were sentenced under the old law. Any incorrectly acquitted defendant can expect the investigation to continue.

Stephen Lawrence died at the hands of knife-wielding racist thugs who attacked him for no other reason than the colour of his skin.

It took nearly 19 years for guilty verdicts in relation to two of the group of killers. Blunders by the police in the original investigation meant that no identification evidence was available. Witnesses who no doubt had useful information refused to come forward. An Inquiry was able to identify prime suspects but there was no apparent proof.

Double jeopardy

It took a change in the law to allow for one defendant to be tried having been previously acquitted after a failed private prosecution. This is known as ‘double jeopardy’, which means that someone can be tried twice for the same crime. It is for the prosecution to seek to quash an acquittal and seek a retrial.

The change in the law to allow retrial after an acquittal was controversial as the law used to be that a “NOT GUILTY” verdict was final. However, modern law recognises that the categories of evidence are never closed.

After the Lawrence verdict on January 3rd 2011, one commentator wrote: ‘I don’t think this was a great day for British justice, the abandonment of double jeopardy rules will lead to political trials rather than justice with those deemed worthy brought again and again to court till the “right” verdict is reached.

Of course, this was the concern at the time but there are safeguards which should reassure that commentator and restrict the number of cases which are re-opened.

Firstly, a retrial in these circumstances can only be sought in certain very serious cases.  Secondly, it can only be sought in special circumstances. In 2009, the Court of Appeal said that it is not enough that the new evidence creates a case to answer. There has to be ‘new and compelling evidence of the kind which cannot be realistically be disputed that the exceptional step of quashing an acquittal will be justified’.

The Court of Appeal granted an application by the prosecution in 2011 to try Gary Dobson again saying that ‘jurisdiction… is concerned with the question whether there should be a retrial because the acquittal is transparently wrong and is damaging to the criminal justice system’.

In the end this was a circumstantial evidence case where a small amount of Stephen Lawrence’s blood was found in recent scientific re-testing of the defendant’s clothing after an advance in science which was not available at the time of the killing. Although the DNA evidence was crucial, it was not the only evidence. Also found in evidence bags and on clothes relating to Dobson and Norris was hair from Stephen Lawrence and fibres from his clothes. Add to this evidence that Dobson and Norris were knife-wielding racists and after many years there was sufficient evidence to convict them of murder.

Trial for Norris and retrial after acquittal for Dobson was possible on new and compelling scientific evidence. It follows that no such evidence is available at the moment in relation to other suspects. As to what evidence may be available in the future it is hard to speculate, so whilst the investigation remains open then those suspected will not necessarily rest easy. The police simply have to remember to cast the net as wide as is sensible on the available information to prevent further mistakes. It is always better to reach a proper verdict on the evidence once and, where possible, close to the time of the offence but retrial on acquittal is a legal (not a political) tool available where new evidence becomes available and to correct mistakes in very serious cases. Despite the reservations this new law has created, most agree that it was used to success in Stephen Lawrence’s case and one hopes that such a legacy is  some small comfort for his family.

5 responses to “Stephen Lawrence and double jeopardy”

  1. ObiterJ says:

    The existing law on double jeopardy is, I think, supportable given its restriction to certain very serious offences and the other safeguards. However, as we have seen too often, there is always the danger of mission creep perhaps in response to some future notorious case where there could not be a new trial! Another area where there might be mission creep is trial by judge alone without jury.

  2. Alex says:

    “there are safeguards which should reassure that commentator and restrict the number of cases which are re-opened”

    But the whole point of the old prohibition against double jeopardy was that it was to stop state repression. If instead (as now) you have some bit of legalese where someone (presumably a judge?) has to make a subjective decision, then you leave the door open for exactly that which the old law was supposed to prevent. The legalese can be interpreted in the widest sense possible – if the powers that be so desire (compare this with the recent legal authorization in America to allow their President to have the military indefinitely detain suspected terrorists – the legislation only applies to such BAD people, but of course, there’s no reason to believe it will work like that in practice). The only way to be sure that no-one innocent will be put in double jeopardy is to ban it outright – no exceptions. Don’t give the government an inch to make sophist arguments. Otherwise eventually it will take a mile.

    “The police simply have to remember to cast the net as wide as is sensible on the available information to prevent further mistakes”

    And what incentive do they have to “remember” this if they know that if they fail to get enough evidence to persuade a jury, they can get another bite at the cherry? What’s to stop them lazily collecting some evidence, failing, then getting some more, and trying again?

    Why should individuals found not guilty forever be at the mercy of the state and any capricious police officer who happens to take a disliking to them?

    Why shouldn’t double jeopardy be illegal as before, something that worked for hundreds of years?

    Why should we forget Blackstone’s dictum that it is “better that ten guilty persons escape than that one innocent suffer”?

    Is it not the case that hard cases make bad law?

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  5. Anonymous says:

    The Lawrence case.
    Stefan Kiszko; advances in science eventually left us in no doubt as to Stefan’s Kiszko’s innocence. Mistakes happen in any legal system you care to mention, but that is no excuse for complacency (lessons need to be learned). Science has bested the law on many occasions proving innocence unequivocally and far beyond the concepts of a reasonable doubt. We all welcome these scientific breakthroughs that reveal the truth about a crime. When science proves guilt rather than innocence, then likewise the double jeopardy rule should not stand in the way of lady justice. That said, I do have a problem with the arrangement?
    Since the 2003 criminal justice act removed the guarantee of protection from the double jeopardy rule, they have also allowed the law regarding that rule to be used retrospectively of 2003.So we now enter a time where the law of the day, at that point in time, said that is was forbidden to retry a person for a crime they had previously been acquitted of i.e. the Lawrence case.
    The “ex post facto” rationale is a major cornerstone of law, but it has been ignored as an inconvenience, or perhaps a contrivance and I do have a problem with the law having it both ways when it suits them. Some joint enterprise murder convictees could theoretically benefit from possible changes in the future law, if, and only if, retrospective elements were allowed to be used in dealing with (some would say) perceived past injustices, these allegations of injustice could be considered by perhaps a special select committee reporting back to government with their recommendations?
    Justice may be served by using the rationale? But if not, then the removal of the double jeopardy principle should only apply to post 2003 cases. Otherwise it is one rule for the government’s needs, and another for its citizens. As we have seen in the London riots, you need to listen.

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