In U.K., Double Jeopardy's in Jeopardy

Aug. 1, 2002 -- Julie Hogg, a 22-year-old pizza deliverywoman from northern England, was killed in 1989. Billy Dunlop admits he strangled her. But there's absolutely nothing police can do about it.

That's because Dunlop didn't confess until after he had been tried twice and finally acquitted in the case. He was sentenced to six years in prison for perjury, but because of double jeopardy protections, he can't be tried again for Hogg's murder.

That might be about to change.

British Home Secretary David Blunkett recently released a proposed revamping of the legal system that would, among other things, do away with some jury trials, allow hearsay evidence in some instances, and give judges the possibility of revealing a defendant's past record.

It would also scrap the double jeopardy rule in certain serious cases — such as murder, rape and armed robbery — when new evidence surfaced. This would be retroactive, meaning that defendants who had been acquitted could be brought in to book again.

‘Justice for Everyone’?

Blunkett's proposals, contained in a paper called "Justice for Everyone," still have to be turned into a draft bill and then lodged in both houses of Parliament before they could become law. Nevertheless, the proposals are sparking controversy, not only in the United Kingdom, but also in the United States, whose legal system owes a lot to English law.

In the United States, double jeopardy protection — which says an acquitted defendant cannot be retried for the same offense in the same jurisdiction — is guaranteed by the Fifth Amendment to the Constitution.

"There is a reason for the double jeopardy clause," said Paul Marcus, a law professor at the College of William and Mary in Virginia. "It's a check against the government."

Without the double jeopardy protection, government prosecutors could continue trying a defendant until they got the verdict they wanted, Marcus said.

"Our Bill of Rights takes the position it is not just to convict the guilty, but to convict the guilty in a fair and equitable way," said Marcus.

‘Growing Fear’ of Crime

In Britain, however, a lot of people are more concerned about stemming the crime rate than protecting the rights of the accused.

"The background to it [the proposed changes] is a greatly growing fear of and suspicion of crime levels in the U.K.," said Gary Slapper, a law professor at the Open University in England and author of English Law. "The trigger for this series of changes is a government promise to reduce crime by substantial amounts."

When Tony Blair became prime minister in 1997, he promised to be "tough on crime and the causes of crime." Five years later, said Slapper, "The number of convictions per recorded crimes is very low. It hovers around nine convictions for every 100 reported offenses, though that would vary according to the crime.

"The sense behind these proposals," he said, "is that you've got a big social problem and you've had a number of glaringly failed attempts to do more about it."

A number of high-profile crimes have certainly made Britons feel more vulnerable. In addition to the Hogg murder, many people were shocked by the case of Stephen Lawrence, a black teenager who was attacked by a gang of white youths and stabbed to death in southeast London in 1993. Five people were charged, but the cases against them fell apart.

Balancing the System?

Among the proposals in "Justice for Everyone" is a plan to abolish jury trials in some cases, such as particularly complex fraud allegations.

"They seem to make an assumption that low conviction rates are based on the assumption of juries being stupid," said Slapper.

Phil Bates, a law lecturer at King's College London, said there was also a belief "that there were persistent criminals who were able to manipulate the system."

These defendants would ask for a jury trial, which normally takes much longer to schedule than a nonjury trial, and enjoy the extra time out on bail, he said. Later, they would work out a plea deal, getting a shorter sentence in exchange for their guilty pleas.

More generally, said Bates, was a feeling that "the whole criminal justice system was unbalanced and favored criminals over victims."

"These current proposals are an attempt to balance the system," he said.

But while the proposals would provide more rights for victims and witnesses, there are pitfalls as well, said Bates.

"That's the point the lawyers and the civil libertarians are making: We are likely to have more innocent people convicted," he said. "And that will undermine public confidence in the system."

A number of cases already go before magistrates in nonjury trials, but there is a "public perception that you have the right to a jury trial," he said. "There is widespread public support for the jury system."

A Very Old Tradition

The jury trial has been a fixture for some 800 years. King Henry II, who reigned 1154-89, started allowing people involved in land disputes to ask the crown to summon a jury, Slapper said.

It wasn't exactly like the modern jury system. The jurors were chosen because they knew the disputants, Slapper said. When a disputant got 12 oaths in his favor, he won the trial.

The double jeopardy protection is also about 800 years old. Back in the Middle Ages, convicted offenders were subjected to punishments so severe that being branded or having a limb lopped off could seem like a merciful option, as opposed to, say, being burned at the stake.

"If you escaped from your life from a prosecution it was seen as fair that it not hang over your head indefinitely," Slapper said. "The proposal now is that this should be swept away and, where there is compelling new evidence, the case could be opened again and presented in a second trial."

But if the second jury knew the case had already been tried, said Slapper, they might be more likely to side against the defendant. "You'd be considered guilty before you tell the whole story."

There would, however, be an outside check on the revamped system, said Bates. Although Britain does not have a written constitution, it is a signatory of the European Convention of Human Rights. British judges will have to decide whether rulings abide by the convention's guarantee to a fair trial.

Britain has not endorsed a provision in the convention guaranteeing protection from double jeopardy, said Bates, but he thinks it's unlikely a change in Britain's own double jeopardy law would run afoul of the treaty.

"The European Convention says the double jeopardy applies but it allows for exceptions," such as in the event of the discovery of new evidence or a defect in the first trial, Bates said.

Going Too Far?

Both Bates and Slapper believe that only a few cases would be reopened under a change in the double jeopardy rule. "Roughly about 1.5 million cases go through the criminal justice system each year," Slapper said. "The number which would be opened, even if the new double jeopardy rule went into effect, would be fewer than 50."

Nevertheless, legal experts and civil libertarians worry that about the effects of such a change. Rules such as the double jeopardy protection are important, said Professor Vikramaditya S. Khanna of Boston University School of Law. Khanna, along with colleague Keith Hylton, produced an analysis of the kinds of reforms being considered in Britain.

"We suggest that these [existing] rules make it harder for government enforcement agents to use the criminal process for their own gain or political ends," Khanna said in an e-mail. "In other words, the rules work to limit corruption in criminal law enforcement and make targeting of certain individuals and groups more difficult."

But for relatives of the victims, the targeting of certain individuals may sound like a good idea. Ann Ming, the mother of Julie Hogg, campaigned for the repeal of the double jeopardy protection because she wanted to see her daughter's killer brought to justice.

"Intended to protect the innocent from persecution and repeated trials until a satisfactory verdict is reached, the double jeopardy law has also shielded the guilty, allowing them to parade their freedom once they had been acquitted, beyond the reach of justice," wrote the Northern Echo, a local newspaper that backed Ming's efforts.

But Khanna said the proposed reforms, while intended to help victims, were "excessive and indeed unlikely to reduce crime."

"This is not to say that criminal procedure could not be beneficially reformed," he said, "but the steps being proposed in Britain go too far."