More on Double Jeopardy in the U.K.

I want to add my thoughts on Britain’s decision to jettison its double jeopardy rule. I couldn’t agree more with Julian — Dunlop’s conviction illustrates the importance of having a Bill of Rights that is not subject to revision every time politicians decide that obtaining a conviction is more important than 800 years of tradition. You can almost feel the contempt for one of the fundamental principles of Anglo-American criminal law in the following statement by David Blunkett, the Home Secretary who oversaw the change in the double jeopardy rules:

“I’m glad that the heartfelt campaign of Julie Hogg’s family, and others like hers, have been vindicated,” he said.

“There was enormous controversy and difficulty in getting this change through parliament — including with the opposition voting against. But this legal milestone demonstrates how right it was to ensure that justice is done, and the truth obtained at last.

“Three years ago people argued about the medieval right not to be tried twice, as though fraudulently getting off was some sort of game in which, if you’ve fooled the justice system once, you had got away with it for ever. I hope that more unsolved murders, rapes and other heinous crimes will now be resolved.”

By “fraudulently getting off,” Blunkett apparently means “failing to confess,” because there is no suggestion in any of the articles on Dunlop’s trial that he bribed jurors, suborned perjury, destroyed evidence, or the like. All he did was remain silent, what Blunkett calls — channeling the ghost of Stalin’s chief Prosecutor, Andrei Vyshinsky — “fool[ing] the justice system.”

Blunkett’s superciliousness aside, the new law is deeply disturbing in a number of repsects. First, as Julian points out, its retroactive application is fundamentally unfair. Dunlop himself might have been aware that Britain was planning to scrap its double jeopardy rule when he confessed, but he is clearly the exception that proves the rule. Now any defendant who made an incriminating statement after his acquittal, for whatever reason — confessing his sins, seeking psychological help, trying to provide the victim’s family with closure — is subject to re-trial even though the law in place at the time of the statement assured him that he could never again be put in jeopardy for his crime.

Second, although billed as narrow, the new law actually applies to thirty different crimes, including manslaughter, kidnapping, attempted rape, importing or exporting drugs, producing or being involved in producing drugs, causing arson likely to endanger property, and aiding or abetting any of those crimes. To be sure, those are not petty crimes — but is the need to punish them so overwhelming that it warrants summarily eliminating the double jeopardy rule?

Third, although the new law purports to require “new and compelling evidence” in order to permit re-trial, those terms are defined unacceptably loosely. The relevant provisions of the new law — Section 78 of the Criminal Justice Act 2003 — read as follows:

(2) Evidence is new if it was not adduced in the proceedings in which the person was acquitted (nor, if those were appeal proceedings, in earlier proceedings to which the appeal related).

(3) Evidence is compelling if—
(a) it is reliable,
(b) it is substantial, and
(c) in the context of the outstanding issues, it appears highly probative of the case against the acquitted person.

“New” evidence, therefore, is not limited to “newly discovered evidence that could not have been discovered through the exercise of due diligence,” the standard used (for sake of comparison) by the federal habeas statute, 28 U.S.C. 2255. On the contrary, “new” evidence includes any evidence that was not used at the original trial, regardless of whether it existed and/or was known to the prosecution at the time — the absence of “due diligence or expedition” is simply relegated to one of many non-dispositive factors that the Court of Appeals is instructed to consider when deciding if the “interests of justice” counsel permitting retrial.

Nor is the “compelling” requirement any more stringent. The “new” evidence only needs to be reliable, substantial, and highly probative — a standard that will almost certainly be satisfied by any “new” evidence that is sufficient to convince prosecutors to re-try a case that previously resulted in an acquittal. A confession obviously qualifies, despite the fact that a remarkable number of confessions turn out to be false.

I understand the frustration many feel with the double jeopardy rule; there is no question that it sometimes requires an obviously guilty person go free. So I could live with a rule that permitted retrial in the face of truly overwhelming evidence of guilt that could not, under any circumstances, have been discovered by the prosecution prior to the original trial — DNA evidence, for example, that was based on a scientific technique that did not exist at the time.

This, however, is not that rule.