The 800-year-old double jeopardy rule has been partially scrapped, leading to the retrial of William Dunlop. Jon Scott looks at the difficulties of supplying 'new and compelling' evidence.


It is difficult to argue with the conviction of William Dunlop for the murder of Julie Hogg. Twice he had been tried for the

22-year-old's murder in Billingham in 1989; twice juries had failed to reach a verdict.



Dunlop's formal acquittal in 1991 meant that even when he confessed to a prison officer (and in subsequent police interviews) that he had indeed murdered Ms Hoggs, he could only be charged with perjury, not murder. Dunlop duly received a six-year tariff in 2001 to add to an ongoing seven-year sentence for grievous bodily harm.



But only after the centuries-old double jeopardy rule was amended in April 2005 - the result in large part to the unstinting 15-year campaign by Ms Hogg's mother, Ann Ming - did a second investigation into the murder of Ms Hogg became possible. Dunlop was tried again, and after pleading guilty, received a 17-year sentence.



The feeling that justice had been done was particularly strong, not least because of Ms Ming's horrific experience of finding her own daughter's decomposing body, which had been hidden behind a bath panel. As such, the case served as the ideal vehicle to trumpet the end of the double jeopardy rule. To quote a Crown Prosecution Service (CPS) spokesperson: 'Once parliament had passed the [Criminal Justice Act 2003] the murder of Julie Hogg was obviously going to be one of the few cases to go ahead.'



Yet that sense of justice arguably obscured just what a momentous change in the law had taken place. The double jeopardy rule had after all existed - and been staunchly protected - for some 800 years. Notable defenders include the 18th-century English jurist Sir William Blackstone, who wrote about the 'universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence', and Lord Devlin, who in 1964 remarked that 'every system of justice is bound to insist on the finality of a judgment arrived at by a due process of law. It is quite inconsistent with that principle that the Crown should be entitled to reopen again and again what is in effect the same matter'.



The argument underpinning the change in the law, of course, is that if evidence is deemed 'new and compelling' by both the Director of Public Prosecutions (DPP) and then the Court of Appeal (the two-tier sifting process prescribed by the 2003 Act), then it no longer does remain the same matter. This could apply to any of the specified offences for potential retrials: murder, manslaughter, rape, kidnapping, various sexual offences, possession of various class A drugs, and certain terrorism offences.



It is an argument that seems to have convinced the majority of legal practitioners, Victor Temple QC, of 6 King's Bench Walk, London, among them. 'I have no concerns about the new rule whatsoever,' he says. 'It's the quality of the evidence that matters. In William Dunlop's case, logic dictated the trial should go ahead for the simple reason that the evidence could not have been available at his initial trial because he had not made the confession by then.' Indeed, so stringent are the criteria for 'new and compelling' evidence, maintains Mr Temple, that the number of retrials will only ever remain a handful.



Roger Smith, director of the law reform and human rights organisation Justice, shares this confidence, although he took a while to be won over. 'We were very concerned about the 2003 Act because the whole thing was presented rather politically at the time, and threatened to become a fundamental assault on the rights of the defendant,' says Mr Smith. 'But as it ended up, the scrapping of the double jeopardy rule has brought with it reasonable safeguards, so we are not theologically opposed. Of course, it is up to the DPP to ensure that the right criteria are met.'



Most legal practitioners agree that these limited exceptions will comprise scientific advances, and in particular DNA evidence - not that we should expect a panacea of hard facts to convict 'those who got away with it'. Laura Higgs, a criminal law solicitor at London's Bindman & Partners, who helped defend Dunlop, gives one reason for this. 'If such evidence rests on new and untested procedures or techniques which have never before been considered by a jury for any type of trial, then it is questionable whether this evidence is a reliable or compelling enough basis for the acquittal to be quashed,' she says.



Adding to this sense of caution, Mr Temple says it is important to remember that DNA evidence will not always be high quality per se. 'DNA tests can provide reliable evidence - or at least, evidence whose quality can be judged,' he says. 'And our awareness of potential flaws should enhance rather than erode our faith in them. That said, the tests' great sensitivity, and the fact that exhibits are handed round to everyone, from the ushers and the jury to the counsel, does make the risk of contamination high. Trying to eliminate all the individuals who may have handled the evidence becomes utterly impractical.'



Caveats notwithstanding, Mr Temple argues that DNA evidence will more likely prove 'new and compelling' than confessions or belated allegations of sex crimes. 'Say a prisoner had come forward after 20 years saying a cellmate had committed the murder,' he speculates. 'That would raise all sorts of questions such as why it had taken the prisoner so long to come forward, and why is he trying to get him sent to prison? The defence would say this was an abuse of process, meaning that it is either unfair to try the case at all, or that if the trial does go ahead, then the man cannot have a fair trial.'

Nor is criminal law specialist Paul Harris, managing partner of London-based Edward Fail Bradshaw & Waterson, comfortable with the idea of confessions triggering retrials. In fact, he admits the whole idea of retrials does not sit easily with him. 'I'm just not convinced they are safe,' he says. 'I can see where technological advances can provide compelling and reliable new evidence, but the idea of William Dunlop's confession to a prison officer acting as the cornerstone for a new trial does make me uneasy. The passage of time may mean there is less or no other reliable evidence - evidence which in any event has already been insufficient to persuade a previous jury to convict. Yet on the basis of one confession - perhaps many years old - the prosecution is effectively saying here is the evidence to translate the case from an acquittal to a conviction.'





Mr Smith raises another concern. 'The principle of double jeopardy remains - subject to limited exceptions,' he says. 'The question is, how limited? The evil you are addressing is that the prosecution doesn't bother to do the best job possible first time round, and you get sloppy police practice.' Similar worries weigh on Ms Higgs's mind. 'There is always the danger that scrapping the double jeopardy rule will take away the impetus for the prosecution to pursue cases as diligently as they might if, at the back of their minds, they are thinking that a retrial might be possible should the first prosecution not succeed,' she says.



Clearly it is the responsibility of the DPP and Court of Appeal to prevent this, by assiduously assessing evidence for potential retrials. The expectation that they will, and will do so with the requisite rigour, explains the widespread approval from the legal profession to the partial scrapping of the double jeopardy rule. Only in time will we know whether that approval lasts.



As Matthias Kelly QC, a former Bar Council chairman who had serious doubts over the changes to the double jeopardy rule when they were introduced in 2003, points out, such provision is best judged after considerable passage of time. 'The criminal law has evolved over many hundreds of years,' he says. 'Viewed like that, the end of the double jeopardy rule is not a step back to what we had 800 years ago, but part of a long distinguished evolutionary process.'



Jon Scott is a freelance journalist