Doubts over a second bite

Tom Epps looks at the proposed changes to the double jeopardy rules and finds that improved resources at first instance would be fairer for all

The current focus of discussions relating to the government's proposed erosion of the double jeopardy rule has been centred primarily on the Damilola Taylor and Stephen Lawrence cases.

However, if one considers the proposals in any detail it becomes clear that those cases would be extremely unlikely to fall within the proposed conditions that would have to be satisfied if a retrial were to be possible.

In respect of the Lawrence case, the Director of Public Prosecutions has already stated 'there were such serious deficiencies in the investigation of the case that any new evidence would probably fall foul of these criteria'.

And even more recently, Sir William McPherson - who chaired the Lawrence inquiry - has indicated that, as at 1 August 2002, there was no new evidence that could be used to prosecute the suspects again.

Similarly, in respect of the Damilola Taylor case, any prospect of a retrial will only be possible in accordance with the proposed changes to the double jeopardy rule if there is new evidence that comes to light which could not reasonably have been available in the first trial.

It appears from the press reports relating to that case that the evidence most likely to be in issue is the evidence relating to the timing of the defendants' movements.

In all likelihood that evidence would have been an issue that the police could fully have explored in the first instance.

By focusing the debate on those two cases there is a danger that the principles involved and the true content of the proposals will be overlooked.

The principle that no one should be tried twice for the same offence has been a bedrock of the English criminal justice system for centuries.

The underlying basis for this rule is that it has been recognised both in England and abroad that, as a matter of fairness, a defendant should know with finality when a case against him has been concluded.

The extreme distress caused by the court process to the defendant, victims, witnesses and their respective families is restricted in most cases to a single trial provided a verdict is delivered by the jury.

It follows that if the rule of double jeopardy were to be diluted then anyone acquitted on one occasion of a serious offence would be faced with a lifetime of uncertainty not knowing whether the same charge will be brought again.

For most defendants the trial process goes on for years and this is particularly so in serious cases.

On any view, it is accepted that there must come a stage when a defendant is entitled to draw a line under the allegations and move on.

It is not possible to discuss all the likely consequences of the proposed changes.

However, I have grave concerns that media coverage, particularly in serious cases, is likely to influence the jury's approach to the second trial.

It frequently occurs that previously held inadmissible evidence is disclosed in the media following an acquittal.

That evidence, as well as general views aired in the media, is likely to affect the jury's view of the evidence which it considers at the trial.

It is doubtful as to whether the trial process is adequately equipped to ensure a fair hearing in those circumstances.

There is understandable concern at high profile cases collapsing and public confidence in the criminal justice system is vital.

However, rather than tampering with the double jeopardy rule those investigating crime should be given the resources to get it right first time.

The government must address funding issues and the police must address how investigations can be conducted more effectively in the first instance, rather than seek to erode well-founded principles to give the prosecution a second bite of the cherry.

Tom Epps is a solicitor in the criminal and investigations department of London-based Russell Jones & Walker