Corker Binning partner comments on double jeopardy and Stephen Lawrence verdict

In a piece in Legal Week, Robert Brown, partner, Corker Binning, comments on why the Stephen Lawrence verdict vindicates the decision to repeal the double jeopardy rule.

A second bite – why the Stephen Lawrence verdict means the abolition of double jeopardy is here to stay

Eighteen years after Stephen Lawrence was killed in a racist attack in southeast London, Gary Dobson and David Norris have been convicted of his murder. As well as bringing a sense of closure, the convictions represent a significant legal milestone as a high-profile example of a conviction following the repeal of the ‘double jeopardy’ rule in England and Wales.

Before Part 10 of the Criminal Justice Act 2003 (CJA) came into force in April 2005, a person who had previously been acquitted of an offence could not subsequently be retried for that same offence, even if new or compelling evidence came to light. William Dunlop, for example, confessed to a police officer that he had murdered Julie Hogg in 1989. As he had already been acquitted in 1991, no further action could be taken. However, the subsequent changes made by the CJA allowed a retrial where new and compelling evidence emerged, regardless of when the offence took place. In 2006, Dunlop was retried and convicted of murder.

Similarly, Gary Dobson had already been tried and acquitted in 1996. However, new forensic evidence lead to the case being reopened in 2006 and now Dobson and Norris (who was not previously prosecuted) have been convicted of Stephen Lawrence’s murder.

Although the case represents a victory for the prosecution, it should not be taken as proof that double jeopardy does not matter. In fact, the protection offered by the double jeopardy rule is absolutely necessary for fair treatment of those on trial. It is fundamentally unjust for a person, having already proved their innocence once, to live in fear of being returned to the dock. An acquittal without the protection of double jeopardy is arguably no acquittal at all.

Furthermore, the absence of double jeopardy protection also opens the door for politically motivated prosecutions, as those who were safe under one administration find themselves out of favour with the next. Although there has been no sign of such manipulation in the English courts to date, we should strive to maintain this position.

Some might also argue that the lack of double jeopardy’s finality encourages police and prosecutors to act recklessly, attempting spurious or rushed prosecutions, reassured that there may be a second chance further down the line. In addition, a jury which knows that the case before it is a retrial (and for Dobson and Norris, it is impossible to imagine that they did not) may be swayed by knowing that both the Director of Public Prosecutions (DPP) and the Court of Appeal considered the evidence ‘new and compelling’.

There is a conflict here. As the Lawrence case demonstrates, one apparently vital element of justice can come into direct opposition with another. In this case, the importance of double jeopardy came head-to-head with the overwhelming need to identify Stephen Lawrence’s killers and hold them publicly responsible.

This problem has become particularly acute in the last few decades as forensic technology has progressed at an astonishing rate. In the years between prosecutions, DNA science advanced to achieve the conviction of Norris and Dobson by providing evidence simply not available before.

With access to evidence which casts new light on concluded cases becoming more common, it would surely be unjust for courts and governments to wilfully fail to act where a fair and just conclusion might be reached.

Furthermore, the threshold for a retrial under the CJA is huge. Both the DPP and the Court of Appeal must agree that the evidence is new and compelling, that the prosecution is in the public interest and in the interest of justice (for example, the Court of Appeal has the discretion to rule that, given the publicity surrounding a case, a fair trial is not possible). Only then will the accused be placed in front of a jury. When they are, we must trust our judges to direct juries and control evidence properly.

What can be said with certainty is that the abolition of double jeopardy (insofar as it has been abolished in the most exceptional of circumstances) is here to stay. The applications of the exception have so far been met with a general perception that justice has been done.

Following the Lawrence retrial, it is impossible to imagine any Justice Minister seeking to reverse the provisions of the CJA; simply because the task of taking on offences where it is appropriate for double jeopardy to be overridden needs to be approached with a great deal of care and responsibility does not mean it can be abandoned as too difficult or controversial.

Whether the scope of the exception will be ‘expanded’ to take in a wider range of offences (currently it is restricted to murder, manslaughter, kidnapping, serious sexual offences and serious drugs offences), or to allow a lower threshold for retrials will remain to be seen.

For this case to reach what seems to be a genuinely just outcome is a testament to what the criminal justice system can achieve when it, and those involved in it, work to their full potential.

Robert Brown is a criminal litigation partner at Corker Binning.