DOUBLE JEOPARDY

Double jeopardy is a common law concept of ancient lineage. Basically it means that you are not allowed to be tried for the same crime twice; and that holds, even if, after an acquittal, it later becomes crystal clear that you really did do it.

The reasoning is as follows. Crimes are prosecuted by the powers-that-be, originally the king but nowadays the authorities, acting in the monarch's name. They have the full resources of the state at their disposal and can take as long as they like to build a case. The suspect is presumed innocent until proven guilty beyond reasonable doubt. That is a high threshold; but the prosecution only initiate a trial when they are pretty sure that they are going to win. If, having given it their "best shot", the evidence turns out to be unconvincing and the defendant is acquitted, then it would be unfair to the defendant to have to go though the whole process again.

Although the rule is centuries old, major new developments in forensic science over the past 20 years led to calls for its modification. In England and Wales, this took place in 2005, when it was dropped in relation to about 30 serious crimes, including rape and murder. The change doesn't allow the prosecution to try again whenever they feel like it; "new and compelling evidence" must be provided that is sufficient to persuade the Court of Appeal to quash the acquittal and order a retrial. A reasonable development? At the time, civil liberties groups were against it, since they feared that it would allow the police to be less than rigorous in their investigations, and to persecute known criminals without having to prove their suspicions of new crimes. I shared those concerns, but I have been won round to the opposite view by the outcome of the Stephen Lawrence case.

In April 1993, 18-year old Mr. Lawrence was stabbed to death in an unprovoked attack by a gang of youths while he waited with a friend at a bus stop in Eltham, South London. What gave the case notoriety was that he and his friend were black, while the attackers were white. Already by the next day the police knew whom to look for, since someone had left a letter with the suspects' names on it in a public telephone box. Five men were arrested and Mr. Lawrence's friend positively identified two of them. Yet the police messed up the investigation, and the case was dropped. In September 1994 Mr. Lawrence's parents launched a private prosecution (possible under English law, though always difficult) of three of the five, but it failed; all three were acquitted.

The focus then moved to the Met, the police force responsible for London. In 1997 a public inquiry was set up under the Chairmanship of a former judge. When he reported in early 1999, he castigated the Met for "institutional racism" and made 70 recommendations for change. The clear implication was that the police were not interested in clearing up race-related crimes. That explained why the initial investigation had been so inept; but it did nothing to bring Mr. Lawrence's killers to justice.

In 2007, a cold case review established new forensic evidence. Clothing taken from two of the five men in the aftermath of their arrest in 1993 had a small blood stain and a strand of hair on them; DNA analysis - not available at that time - demonstrates conclusively that they must have come from Mr. Lawrence. The two are arrested in 2011 and sent for trial. And it is here that the change in the double jeopardy rule becomes important, since one of the two men is also one of the three acquitted back in 1994. The Court of Appeal accepts the evidence as new and compelling, and quashes the acquittal of the suspect in question. The trial starts in November 2011, and yesterday, both men were convicted of murder. The police still think that all five men were involved, but don't have the evidence to prosecute the other three.

So, a legal change that many feared would lead to sloppy police investigations has in fact enabled a sloppy police investigation to be rectified. Jailing the killers of Stephen Lawrence does not mean that blacks and Asians are always treated by the police in the same way as white citizens are, nor that they will be in future. However, it does mean that Britain has moved a small step further along the road to being a genuine multicultural society. That would not have been possible without a change in the law.

Walter Blotscher