This rule is of great antiquity and, prevents a person being prosecuted more than once for the same offence or for an offence on which he could have been convicted at the first trial. In this country individuals cannot be dragged back continually to the courts to be retried for the same offences. The unfairness of such a practice was appreciated over 200 years ago.
There is nothing in the Lawrence case to demonstrate that the rule requires revision. The problem in that case was that, despite the views of the Crown Prosecution Service that there was not sufficient evidence available at that time to justify a prosecution, a private prosecution was launched. The Director of Public Prosecutions had the power to take over the private prosecution and make sure it did not go on but it would have taken a very brave director to do that bearing in mind the intense media interest. So the case was allowed to proceed.
As the evidence emerged it became painfully obvious that the Crown Prosecution Service were correct and that the evidence would not justify a conviction. It was not even strong enough to establish a prima-facie case. The net result of bringing a hopeless prosecution was to prevent any prosecution ever being brought against the same defendants in the future. Everyone involved knew the rule.
This sad litany hardly justifies the abolition of the rule. It merely provides a salutary warning not to prosecute someone where there is insufficient evidence.
The double jeopardy rule exists in some form or other in most civilised countries. The recommendation for its abolition did not arise from any term of reference of the inquiry. The subject has never been examined by a properly constituted Royal Commission or even by the Law Commission. In fact it is difficult to see why the Lawrence inquiry thought it necessary to pontificate upon the subject at all.
The cry for abolition has emerged for no good reason on a tidal wave of emotion, and this is the danger. With this background it provides a further incentive for the Government to use this strong feeling as an excuse further to erode the rapidly diminishing principles of our criminal law in a blaze of media praise.
Law and order have become a political issue. There are votes to be won by being seen to be hitting criminals (by this is meant all those charged with criminal offences). It is a simple matter of arithmetic. There are too many acquittals. A vote-winning law and order government needs more convictions and more criminals locked up. Here is another opportunity to be seen to be taking a tough line.
The present Government has readily taken on the mantle assumed by the Tory's last home secretary. Tory bills were immediately adopted and the Labour Government propose to go much further than a Tory government would ever have dared.
Disclosure by the police to a defendant in a criminal trial has been curtailed to such an extent by statute that had these rules been in force at the time the Guildford Four and many others would still be in prison. The relevant documents would not have had to be disclosed.
By another recent statute a wide discretion is given to the prosecution to have a witness's statement read at a trial without the defence being able to cross-examine the witness at all. This is no longer limited to witnesses who are ill or beyond the seas.
The Government also plans to remove the right for trial by jury in a large category of cases. The real reason is that magistrates convict more than juries. The abolition of trial by jury in serious fraud cases will be next and this will provide the thin end of the wedge for reducing this right to only the most serious offences like murder, rape or armed robbery. The criminal law of Hong Kong will provide a good model.
The mutilation of criminal legal aid and the introduction of the public defender system will ensure that the best and most experienced will only be available to the prosecution.
The only real questions are how much the muted Labour back-benchers will put up with, and to what extent the European Court of Human Rights will intervene and strike down such restrictions.
A properly constituted commission would have considered the impact of the European Convention of Human Rights before recommending the abolition of the double jeopardy rule. The Lawrence inquiry did not. If they had they would have realised that the European Court would be most unlikely to tolerate the abolition of a rule which is considered to be a fundamental part of our criminal law system.
The author is a former chairman of the Bar Council