Monday, September 25, 2006

Brits Toss 800 Year Precedent: Double Jeopardy Now Allowed

A news dispatch about a change in the criminal justice system in Britain that sounds earth shaking:
Double jeopardy law ushered out

A legal principle which prevents people being tried for the same crime twice has been scrapped in England and Wales.

The ban on “double jeopardy”, which has existed for around 800 years, took effect from Monday.

The Court of Appeal can now quash an acquittal and order a retrial when “new and compelling” evidence is produced.

Police plan to re-examine the case of 22-year-old Julie Hogg, who was murdered in a sex attack at her home in Billingham, Teesside, in November 1989.

Boyfriend Billy Dunlop was tried for the murder of the pizza delivery girl, but acquitted after the jury failed to reach a verdict on two separate occasions.

‘Deliver justice’

The change will apply retrospectively, so someone could face a second trial if evidence such as DNA material, new witnesses or a confession came to light.

A Home Office spokesman said: “It is important the public should have full confidence in the ability of the criminal justice system to deliver justice.

“This can be undermined if it is not possible to convict offenders for very serious crimes where there is strong and viable evidence of their guilt.”

Director of Public Prosecutions Ken Macdonald expects no more than “a handful” of cases to be brought a year.

A Crown Prosecution Service spokeswoman said: “There has to be new evidence which was not available at the time of the original trial.”
One’s first reaction is horror at the abrogation of a fundamental part of Anglo-Saxon law.

The restriction on double jeopardy was considered so important that has been enshrined in the 5th Amendment to the U.S. Constitution.

The reality, in fact, has been less than pristine respect for the principle in the U.S. For example, the courts have ruled that the U.S. government and state governments are “two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory . . . Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.”

In practice, this has meant that one could be tried and acquitted by a state government, and then tried and convicted of the same crime by the U.S. government.

The police officers who beat Rodney King in Los Angeles in 1991 fell afoul of this quirk in the law.

While one has to have reservations about the abandonment of an 800 year old protection for civil liberties, in reality it’s of minor importance compared to (for example) professionalized police forces, well-trained judges, a free press to publicize abuses, and such.

Certainly, certain aspects of the U.S. justice system such as the Miranda warning and the exclusionary rule can’t be considered sacrosanct either, especially since both were imposed by the Supreme Court, and are nowhere in the Constitution.

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