Double Jeopardy Rule Should Be Abolished

The most important thing a justice system can provide is a clear result. The proposition may argue that this will only apply to ‘exceptional’ cases – but the truth is that every case is potentially subject to revisitation, and closure is never available – not to the acquitted accused, not to victims, not to relatives. Innocent, acquitted people will never be sure that another prosecution might not happen in the future.Furthermore, ‘guilt’ is not verifiable in the same way in a second trial. When asked ‘what did you see?’ a witness is likely to reply, ‘what did I say last time?’. It’s no longer a true test of evidence; the evidence from the last trial is all presumed to be accurate and can’t be satisfactorily challenged.

It doesn’t matter how emotive the proposition gets: we’re not just protecting ‘evil people;’ the double jeopardy rule protects everyone from the danger of constant harassment from the state. The opposition would rather see a guilty man occasionally go free than see the resources of the state trained on individuals again and again and again.

The rule of law will actually come to mean less if it exists in a perpetual state of potential overturn. We need to be protected from the state in other ways, too – from the vindictive or obsessed policeman that will pursue a case because he ‘knows’ the accused, properly acquitted in a court of law, to be guilty nevertheless. That is the nature of the police force, because we ask them to search for guilt – unless we provide a rule saying when to stop investigating, it will simply continue and continue. Given that we are talking about a tiny proportion of cases, it is better to have the principle of finality – because the police will spend vast amounts of time and effort and money on case that are already resolved, to the detriment of crimes that will receive less attention.

If the ‘double jeopardy’ rule is scrapped, police work will be sloppier, because police detectives will know that the insurance of a second trial exists. The ‘one-shot’ rule forces investigations and prosecutions to be of as high a quality as possible.

The implications of this should be looked at carefully. This would grant police and the prosecution the right to prosecute an individual if the evidence against them can be ‘reanalysed.’ Surely almost all cases could see such ‘improvement in investigatory techniques,’ allowing the state to pursue individuals at will. Presumably this ‘generation’ of techniques isn’t the last; why won’t the same logic hold in asking for a third trial? A fourth? A fifth?…

Juries will know this is a retrial – because evidence will have to be ‘read’ from the first trial where witnesses have died, because notes from ‘last time’ will be available to advocates and the accused, because the legal procedure of the last trial will be subject to discussion in this one. If a jury knows a case has been brought again, there will be a presumption that the accused is guilty because a higher court has already decided that the new evidence makes the acquitted defendant now look guilty after all, and so granted a retrial. The presumption of innocence will no longer exist.And unless the system is going to be overwhelmed with retrials like this, in which case it would be unworkable, then second trial capacity can only (and rightly) be directed towards ‘exceptional’ cases. Such cases are well known – like that of the murder of Stephen Lawrence. How could individuals facing trial again on the same charges, when in the glare of media attention it has been declared they should have been convicted at the first trial? How could they possibly expect a fair trial?

Logically, within the court system there is a higher expectation upon the state – with all its vast powers – than on the individual, who has minimal power to investigate and obtain evidence in his defence, who personally stands to lose liberty on the decision to be made, and who therefore deserves extra protections. Part of this means that there is a burden of proof – the state must prove ‘beyond reasonable doubt’ in criminal law – if doubt exists, then a conviction should be quashed. It’s disingenuous to say there should be parity between the parties here, since there is – quite rightly – no burden to prove beyond doubt on the accused.