APPENDIX 6
Memorandum by JUSTICE
DOUBLE JEOPARDY: THE LAW COMMISSION'S CONSULTATION
PAPER
1. The background to this consultation paper
is the failure to secure convictions in the Stephen Lawrence case,
and developments in scientific techniques, making prosecutions
possible (as in the Diedrick case) as a result of new evidence.
Both have led to questioning of the double jeopardy principle.
2. The Stephen Lawrence case was referred
to by the Home Secretary (at the launch of the IPPR criminal justice
programme on 13 January) as the seminal case of the 1990s. It
is accepted that the first and most serious problem after the
murder of Stephen Lawrence was the incompetence of the police
investigation. The resulting insufficiency of evidence led to
the Crown Prosecution's decision not to prosecute. The private
prosecution subsequently taken out by Mr Lawrence's parents failed.
3. JUSTICE's comments on the proposals are
principally limited to the proposed power to reopen acquittals
on the grounds of new evidence, although we also have views on
the role of the courts and the scope of the proposed new arrangements.
GENERAL POINTS
4. The double jeopardy principle protects
the interests of the system in finality and certainty. They are
crucial to its functioning; and the public interest in second
prosecutions would, in general, be so small as not to justify
their displacement. Any interference may have profound and distorting
effects upon the investigation, prosecution and trial of offences,
and therefore must be shown to be necessary and proportionate
to the perceived problem, and to have sufficient safeguards to
ensure fairness and protect the presumption of innocence.
5. It is accepted in the Law Commission
report that it is only in exceptional cases, and where it can
be shown to be in the interests of justice, that acquittals could
be reopened, on the basis of compelling new evidence, which could
not reasonably have been gathered and presented at the original
trial.
6. We consider that there are significant
dangers in legislating on the basis of a few exceptional cases.
Once the principles of finality and certainty in jury trials are
undermined, this is likely to lead to calls for wider changes.
In his recent Tom Sargant Lecture, the Attorney-General canvassed
the possibility of introducing prosecution appeals against judicial
directions, including admissibility decisions. Though the Law
Commission, in this report, considers that this is "severable"
from its present proposals, it also recognises that some of its
respondents may consider that the law on double jeopardy cannot
sensibly be reformed without such changes. We are very concerned
that the present proposals will inexorably lead to further piecemeal
change, without any clear sense of direction, principles or purpose,
but with the overall effect of unbalancing the criminal justice
system.
7. Furthermore, we would point out that
the present proposals do not address the principal fault in the
Stephen Lawrence proceedings: that the initial investigation failed
to follow up routes of inquiry that were clearly available at
the time. The Law Commission rightly does not propose that inadequate
or incompetent investigators or prosecutors should be rewarded
by being able to resume inquiries after a trial process that has
highlighted the gaps in their case.
HUMAN RIGHTS
ISSUES
8. The Law Commission reviews the human
rights provisions in this area comprehensively, in particular
Article 4 of Protocol 7 of the ECHR, which is due to be signed,
ratified, and incorporated by the UK government. Article 4 contains
a general prohibition against double jeopardy in respect of criminal
cases that have been finally determined. But it does permit (Article
4(2)) such cases to be reopened in certain defined circumstances:
where there is new evidence, or where there was a fundamental
defect in the proceedings. Broadly speaking, these provisions
have been interpreted by the European Court of Human Rights as
meaning that such a course should be taken only rarely and exceptionally.
9. We accept that the provisions of Article
4 do not constitute an absolute ban on reopening acquittals, as
well as convictions, in exceptional cases. However, nor do they
specifically endorse such actions. In considering compliance with
relevant Articles of the ECHR, the Strasbourg institutions have
always recognised the different procedures and principles that
underly the different judicial systems of member states. They
have looked at the procedure as a whole to see whether it guarantees
fair trial rights. This recognises the fact that each system has
different safeguards, built in to different stages of its procedures.
In the same way, we would argue that, whilst simple compliance
with human rights standards is an essential bottom line for criminal
justice systems, this may not of itself be sufficient to ensure
fairness in the particular circumstances of an individual system.
10. There are aspects of the English criminal
justice system that are unusual, if not unique, in Council of
Europe member states. They include the unsupervised nature of
police inquiries, the limited powers of prosecutors and the limited
disclosure of evidence to the court and the defence. It is an
adversarial system that has few independent safeguards in the
early stages and relies heavily upon the testing of evidence,
and the way in which it was obtained, at trial, orally, in front
of judge and jury. We therefore go on to look at some of the possible
effects of the Law Commission proposals, in terms of their practical
application within such a system, and their effect on principles
of fairness and human rights.
THE PROPOSALS
IN PRACTICE
11. The Law Commission suggests three limitations
on the circumstances in which cases could be reopened
(i) new evidence would need to be strong,
and it would be necessary to show that it could not reasonably
have been adduced at the first trial;
(ii) a court should judge that, in the light
of the new evidence, a conviction would be "highly likely"
or certain;
(iii) the case would need to be sufficiently
serious, with the likelihood of a sentence of three years or more;
(iv) the court should order a retrial only
if it is "in the interests of justice".
12. As we have already stated, it is clear
that the Stephen Lawrence case would not meet the first test,
except in the unlikely event that one of the acquitted defendants
were to confess. Confessions and new forensic techniques are the
kinds of new evidence that the report envisages. We consider that
there are problems about both kinds of evidence.
13. Confession evidence has long been held
to be particularly unreliable, and to have been the foundation
of many miscarriage of justice cases. Indeed, JUSTICE's last ever
appearance before the Court of Appeal Criminal Division in December
of last year succeeded in overturning a conviction based largely
on unreliable confession evidence. Confessions may be made by
fantasists, or people who are particularly suggestible. There
are also problems with confessions allegedly made to third parties,
who may themselves obtain benefit: such as co-defendants facing
criminal charges which may be reduced or dropped, or prisoners
who may obtain sentence discounts (so-called cell confessions).
At a time when the system has moved away from reliance on such
evidence to more reliable forensic and investigative methods,
we would consider it highly undesirable to include confession
evidence as a matter that can lead to reopening an acquittal.
It could place temptations in the way of police officers who genuinely,
but wrongly, believe that a wrongful acquittal has taken place,
and who come into contact with the acquitted person, or his or
her associates, in relation to other unrelated criminal investigations.
Nor is it a sufficient safeguard that such evidence would need
to be assessed in the light of other available evidence: the danger
of unreliable confessions appearing to validate an otherwise weak
case was well put to, and accepted by, the Royal Commission on
Criminal Justice.
14. New forensic techniques may be presumed
to be more reliable than confessions, though it needs to be borne
in mind that many have proved less certain than appeared to be
the case when they were first brought into use. However, the use
of such techniques on material retained, perhaps for long periods,
after a trial raises some fresh difficulties, in particular the
possibility of accidental, or even deliberate, contamination of,
or interference with, the evidence. We do not consider that the
procedures for retention of material following a trial are at
present sufficiently secure to guard against either possibility.
15. The test that the Law Commission has
put forward for such cases to go forward is rightly a high one.
But it is also one that appears to us to have potentially fatal
consequences for the presumption of innocence at any subsequent
retrial. If a case can only go forward for retrial on the basis
that a court has already judged that the new evidence renders
a conviction "highly likely" or "sure", the
defendant will have to displace a heavy presumption of guilt,
in contravention of Article 6 ECHR. This is, we would argue, clearly
different from the questions that arise on a retrial following
an appeal against conviction, which a court has ordered as necessary
because new evidence renders the conviction unsafe, rather than
because new evidence, in its view, renders a conviction highly
likely or certain.
16. Finally, we consider that, if these
proposals are to be implemented, the threshold for the kinds of
case that can be reopened is too low. Offences that attract three
years' imprisonment are, in our view, not sufficiently serious
or exceptional to warrant interference with jury acquittals properly
obtained. All offences are exceptional to their victims: the test
for reopening cases, should such a procedure ever be agreed, should
be that these are such serious offences that a failure to re-prosecute,
on what appeared to be clear proof of guilt, would undermine general
public confidence in the system of justice. This would, we suggest,
be confined to homicide, serious fraud, sexual offences, and offences
of serious violence; these would be the only cases where the interests
of justice might outweigh the principles of finality and certainty.
CONCLUSIONS
17. We do not believe that sufficient grounds
have been made out for the necessity of interfering with the double
jeopardy principle. The fact that the Lawrence case would be unaffected,
and that it is envisaged that such procedures would be wholly
exceptional, does not indicate that there is a systematic probem
that needs to be addressed by removing such a fundamental principle.
We find it difficult to believe that in practice these powers
would be used as rarely as the Commission implies, or that they
would not lead to pressure for further inroads into the finality
of jury trials. It is very dangerous to extract particular elements
of a system without having regard to the system as a whole, and
where the present or future effects of these changes are so uncertain.
18. We do not believe that sufficient safeguards
can be incorporated into procedures to prevent them being misused
or overused. We relate our comments not just to the provisions
of the ECHR, but to their application in a common law jurisdiction
that relies heavily on the trial as the place where evidence is
tested and evaluated and the rights of the defendant safeguarded.
We note, for example, that the other common law countries cited
in the report's comparative section have retained an absolute
bar on reopening acquittals that have been finally determined
at trial and appeal.
February 2000
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