Why do we forget the purpose behind the rules embedded in the criminal justice system? Why are we tempted to fall into a mental cul de sac and view every aspect of courtroom drama as being either pro-accused or pro-victim? And why are we so easily persuaded to make fundamental changes that are rooted more in political opportunism then in considered reform?
These issues were brought into focus with the recent conviction of two men for the murder of Stephen Lawrence, which happened some 18 years ago. This trial only took place because Britain abandoned, after several hundred years, the prohibition against "double jeopardy". In the UK, the State can now come back for a second bite.
The argument for this change was well rehearsed and went largely unchallenged. It does seem to be unjust - and unfair to victims - if a person who has been acquitted can go free forever even if new and overwhelming evidence later comes to light. I agree, it does seem to be unfair.
That there was a reason for the double jeopardy rule was swept away in the light of this unfairness. I cannot recall anyone pointing out that in a prosecution then the State has unlimited resources. It has the police, forensics, prosecutors, all bearing down upon the suspect. The state can ruin that individual’s life without even having to gain a conviction. The argument is, that with its overwhelming power then if the state was permitted to have a second, or third, or fourth, attempt at convicting an individual then that accused could be harassed by the state forever. With infinite resources and unlimited power, any state would be tempted to step on the neck of those it targeted.
Unless, that is, limits were placed on this state power, as it was with the double jeopardy rule. The state shouldn't prosecute unless it is confident it has the evidence to convict. There is no need to rush. And even less need to disregard with contempt the verdict of the first jury, who had the temerity to acquit. This was a safeguard against state persecution and prosecutorial incompetence, swept away in a spasm of social angst over a particularly nasty racist murder.
This issue was only made more complicated because it was not the state who initially attempted to prosecute Stephen Lawrence's killers. It was his family, by way of a private prosecution. And they failed. And having failed, they campaigned to overturn a safeguard against State abuse of power in their quest for personal justice.
It is often said, hard cases make bad law. And this shocking case has led to precisely that position. The Lawrence family may well feel partially vindicated at these convictions, or feel that justice has been done on the part of their son. But in doing what they have, I can't help but wonder if a greater injustice has been done to our society and to our criminal justice system.
