Thursday, 19 January 2012

Response to an earlier post on the Stephen Lawrence trial by Guy Woolnough.

I would like to engage with a few points from this post with which I disagree.  The first claim is that the law on double jeapoardy or “artefois acquit” to give it its legal terminology, was expressly changed to put these two (Norris and Dobson) on trial.  The sections of the Criminal Justice act dealing with double jeopardy came about as a result a recommendation for a review in the Stephen Lawrence Inquiry and a report by the Law Commission in 2002 responding to that recommendation.
The law wasn’t expressly brought in to put these two on trial, it was hoped that they would be if new evidence was found.  If it were the law would not have contained a “new and compelling” requirement.  It could simply have made all acquittals subject to appeals with lesser criteria, perverse decision for instance (Clive Ponting).
However the idea that double jeopardy was some golden rule running through the justice system is wrong.  There were a number of important exceptions.  One is the retrial following a tainted acquittal (jury or witness tampering) brought in 1996 following a number of high profile cases.  Another is the order of a retrial following a successful appeal by a defendant who has been convicted of a criminal offence.
More importantly and less well known is the ability of a prosecutor to appeal a not guilty finding in the Magistrates’ Court.  Here an appeal is made to the divisional court of the High Court who may set aside a not guilty verdict and remit the case with a direction for a guilty verdict to be entered or remit the case to be retried.  This appeal can be on the grounds that the magistrates have made an error of law or have reached a decision that no reasonable bench of magistrates, properly directed by the court clerk, could have made.
The question to ask therefore is about the fairness of a procedure that allowed relatively minor crimes to be retried (TV license evasion for instance) and yet more serious crimes, such as murder, could only be tried once.  It was an all or nothing gambit for the police and prosecution in which the victim and victim’s family were the ultimate losers.
Another important exception to the artefois acquit rule was given by the Law Commission and it is the rule in Connelly v. DPP [1964] AC 254 in which a defendant acquitted of murder was still able to be tried and convicted for burglary during the course of which the murder was committed, despite the factual situations taking place at the same time and most of the evidence being identical.
One may ask at this point why the defendants in the original trial weren’t prosecuted for GBH or attempted murder following the ruling in Connelly.  The answer lies in the fact that the mens rea for both these offences is the same as murder and would have involved, legally, the same facts and law being retried.
Whilst I am not competent to comment on the Attainder laws there are important differences between the Lawrence case and those alluded to in the earlier post.  There was certainly enough scientific evidence to lead the jury to conclude that Norris and Dobson had committed this crime.  It is beyond all reasonable doubt that they did.  Ex post facto laws may be outlawed by the US constitution but they are certainly not so in the British Constitution, to be sure there is a presumption against interpreting laws in this way that is applied by the judiciary but it is not absolute. 
Two particularly troubling cases suffice to show how laws can have retrospective effect.  The first is the War Crimes Act 1991 which prohibited murder, manslaughter and culpable homicide in relation to offences which violated the laws and customs of war during the World War 2 in German occupied territories.
A second case is that of rape during marriage.  In the case of R. v. R (1991) the defendant sought to argue that he could not be guilty of attempted rape because he was the husband of the victim.  Under common law consent to marriage was deemed to also include implied consent to sexual intercourse as and when required. 

"But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract."
The House of Lords (Judicial) quite rightly overturned this principle as no longer a reflection of contemporary life.  Whilst the law itself was silent on this point social mores had moved on to such an extent that this belief was no longer held by any at the time of the offence.
So Norris and Dobson might not have known that they were going to be tried twice but the interests of justice, as these cases show, sometimes trumps the idea of finality and certainty.  A fact that was persuasive to the Law Commission in its 2002 report.
It is certainly not disingenuous to suggest that case was brought about by new evidence.  It obviously was, since that is the legal test that the prosecution must satisfy in order for a second prosecution to go ahead.  The Criminal Justice Act 2003 requires that the prosecution prove to the Court of Appeal that new and compelling evidence is available and that it is in the interests of justice for a second prosecution to commence.  It is three highly trained judges who make this decision, it is not parliament, public pressure or press outcry.  Those justices in this case examined the forensic evidence and decided it was compelling, new and just to continue.
To be sure such a finding makes it difficult for the defendant to argue innocence in the aftermath.  However there are safeguards, such proceedings are anonymous and are not reported at the subsequent trial.  Whilst the press may publicise the judgement and this could affect the subsequent trial it is not a reason for abandoning the process altogether.  Just because a matter is highly publicised doesn’t mean we should give up on justice, that is what the laws on contempt are designed for.  They prevent the media from prejudicing a trial.
I can definitely agree with the quote:
The positive outcome of this case must be that the police should investigate all serious cases with objective thoroughness from the outset”
Criminal investigation is a serious matter that requires serious and thoroughly professional actions throughout.  It is to the shame of Metropolitan Police that this did not happen, and to all other forces that fail to respect ethnic and cultural diversity.  However to conclude that retrial is about a publicly sanitised lynch mob is wrong and unfair and detracts from the professionalism of the CPS, Police, Judge and Jury in this case from reaching a conclusion that was not based on prejudice but on the “objective thoroughness” of the science of forensic investigation.
Dobson and Norris, no doubt with others, perpetrated a horrendous crime and they should and must pay for their actions and I for one am proud of a legal system that doesn’t close its eyes to injustice. 
Adam Snow is a Ph.D candidate, in the Research Institute for Social Sciences. His project, entitled 'Pay-As-You-Go-Justice? On the spot fines and the future of the Magistracy' is jointly funded by Keele University and the Magistrates' Association. Adam is supervised by Dr Helen Wells, Professor Barry Godfrey and Dr Mary Corcoran.

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