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Special report: home affairs


Rebalancing the scales of justice

Double jeopardy rule will go for 30 crimes

Clare Dyer, legal correspondent
Friday November 22, 2002
The Guardian


Defendants acquitted of any one of about 30 listed crimes could be tried again if new evidence emerged in connection with their case, under a wholesale assault by the government on the ancient, double jeopardy rule.

The criminal justice bill will scrap the double jeopardy rule for 10 times as many crimes as previously indicated.

A white paper last summer said the change would apply to cases of murder, rape and armed robbery. The Law Commission, the official law reform body, which recommended change in the wake of the Stephen Lawrence case, said it should apply only to murder.

But the bill lists 30 crimes punishable by a maximum sentence of life, including class A drugs offences, war crimes and hijacking, and arson endangering life, which will be affected by the new rule. Anyone acquitted of conspiracy to commit any of those offences, even if the offence was never committed, will also be liable to be tried again.

A second trial will be possible if "compelling new evidence" comes to light indicating guilt, whether through DNA , fingerprint tests or new witnesses.

The Home Office minister Lord Falconer said it was difficult to predict how many defendants would be retried but suggested "a handful a year".

The consent of the director of public prosecutions would be needed to reopen the case. And the measure is to be retrospective, allowing acquittals secured in the past to be reopened.

Matthias Kelly, the vice chairman of the bar, said that the bill was "a wholesale abolition of the rule against double jeopardy". He added: "We remain opposed to this on principle. If anything, it stiffens our resolve."

Another controversial measure ends the universal right to trial by jury for serious crimes. Judges will be able to opt for hearing cases alone, with no jury, in lengthy or complex financial or commercial cases such as money laundering, or in cases where there is a risk of jury tampering, such as in organised crime. If attempts were made to nobble - interfere with - the jury, the judge would be able to continue alone or order a retrial.

Defendants will also get the right to trial by judge alone rather than with a jury.

The government dropped its earlier proposals, twice defeated in the Lords, to end the right of defendants in "either way" offences to choose trial by jury rather than magistrates. But magistrates' sentencing powers will be increased, initially from six months to 12, to discourage so many cases being sent for jury trial.

In a further contentious reform, judges will be able to allow jurors to hear about defendants' previous convictions and details of other "bad character" evidence where relevant. A women who previously made complaints against a rape defendant could be called to give evidence, for instance, even if no action had been taken over the earlier complaints. Lord Falconer said this rule would not be limited, as now, to cases where the defendant acted in a strikingly similar way each time.

Hearsay evidence will be more widely admissible, with jurors deciding on its importance. Witness statements could be used in evidence where the witness was unavailable to testify.

Prosecutors will have a new right of appeal where the judge stops a trial without letting it go to the jury. Rules letting large numbers of professionals - including doctors, lawyers and judges - escape jury service, will be scrapped.

Everyone will be eligible for service except the Queen, the mentally disordered and those with criminal records.

Police will be able to give bail at the scene of arrest, and the bill extends the time for detaining a suspect without charge, under the authority of a superintendent, to 36 hours for any arrestable offences.

Pilot schemes whereby crown prosecutors rather than police decide whether or not to charge a suspect and what offence to charge, will be extended nationwide; research showed the move led to more convictions and fewer discontinued cases.

The defence will also have to disclose more of its case to the prosecution, and the accused will have to provide a more detailed defence statement.

John Wadham, director of human rights group Liberty, called the bill a shameful attack on justice. "Blaming fair trial protection for crime rates is wrong and misleads the public. In years to come, as more innocent people emerge after years in prison caused by these plans, we'll wonder how parliament let this attack on justice get into law".

 Related articles
21.11.2002: Criminal justice bill under fire
19.11.2002: Crime bill 'could threaten civil liberties'
14.11.2002: Victims now priority of justice system
13.11.2002: Criminal justice dominates Queen's speech
13.11.2002: The party of law and order goes for broke
13.11.2002: Tories and Lib Dems home in on civil rights
12.11.2002: Duncan Smith: law and order on 'verge of collapse'
08.11.2002: New threat to trial by jury

 Queen's speech
13.11.2002: Full text of Queen's speech 2002

 Comment
17.11.2002: Oliver Letwin: Mr Blunkett and the threat to freedom
11.11.2002: Where the law abiding live in fear
10.11.2002: Balancing criminal justice?

 Special reports
Queen's speech 2002
Home affairs




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