The Rule of Double Jeopardy - Report Example

Legal s and Method Double jeopardy cases have remained highly controversial in the UK’s judicial history. Oxford Dictionary defines doublejeopardy “the prosecution or punishment of a person twice for the same offence”. In other words, this legal aspect requires that both prosecution and punishment are and will not be applicable for anyone who has been previously either acquitted or penalised for the offence.1 However, the Criminal Justice Act 2003 and especially part 10 retains different position on this matter as it requires both prosecution and punishment even for those who come under the ambit of double jeopardy rule. Consequently, the presence of two conflicting rules within a single legal framework makes it hard for the legal community and the lawyers to develop and retain similar position on this very judicial divisive issue. However, the biggest shortcoming of the double jeopardy rule is that it facilitates criminals and even terrorists to declare all out war against society as the existing prosecution system and its serious flaws and weaknesses have necessitated that the part 10 of the Criminal Justice Act of 2003 should receive priority to the rule of double jeopardy. In the following parts of this paper, first the exposition on the double jeopardy rule has been provided in which different legal perspective and application of this rule have been elaborated. Before the conclusion part, comparative analysis of double jeopardy and the Criminal Justice Act of 2003 and its part 10 have been evaluated by taking into account the relevant cases. The rule of double jeopardy elucidates that a person may not face second trial for the same offence whether he was convicted or acquitted on the first instance.2 This rule does not make any exception but is applicable to all types of offences even on the qualifying offences which are related to serious offences, such as murder and attempt to murder as well. In this other words, if a person commits a qualifying offence, such as murder, and hires a well-reputed lawyer for defending his case; similarly, the prosecution fails to provide proper and strong evidence implicating the involvement of the defendant in the murder case, the defendant would be acquitted and this acquittal would not discourage the offender to committing other similar and serious crimes as the English law is not against such people and support them in the form of double jeopardy rule. For example, certain cases also reflect this unfavourable legal reality especially in the murder cases. William Dunlop, who strangled Julie Hogg in 1989, was tried twice in 1991 but each time he was managed to receive acquittal; more importantly, he allowed on that ground that the prosecution did not ask for a third trial.3 Based on this case’s ultimate outcome, it can be deduced that the prosecution was not actively involved to collect pieces of required evidence so as to prove the involvement of the murderer in the case instead their inactive and dormant attitude towards the prosecution and case evidence clearly signify that the prosecution cannot be fully relied as their inadequate interest towards this case has raised a number of questions. In this regard, it is important to explain that it would not be incorrect to extract from the double jeopardy rule that the prosecution performs its work professionally in its very occasion. Thereby, it leaves little room for subsequent investigation in any case. As a result, it would be reasonable to assume that the rule of double jeopardy should be supported and strengthened as well. However, ground reality remains totally different as the reflected in the case of Julie Hogg in which prosecution twice failed to bring strong and compelling evidence to prosecute the defendant in the case. As a result, it is reasonable to deduce that the rule of double jeopardy is not supporting the rule of law instead it is indirectly supporting illegitimate activities and crimes in the country. The double jeopardy rule was repealed in 2005. 4 After the repeal of the double jeopardy rule, the murder case of Stephen Lawrence was reopened and the acquitted Gary Dobson faced the retrial.5 More importantly, before the revocation of the double jeopardy rule, many offenders enjoyed the status of immunity and this was mainly given by the rule of double jeopardy. For example, Bill Dunlop admitted killing of Julie Hogg in 1989 and this admittance was the first instance after the repeal of the double jeopardy in 800 years.6 Based on this situation, it can be extracted that for the period of 800 years in the English legal system, the double jeopardy rule was giving cover to those who fully understood the legal system and its loopholes that could be availed for protecting and defending the offenders and the same has been taking place till the repeal of the double jeopardy act. The confession of Bill Dunlop clearly highlights that this rule is not dispensing justice but was only protecting offenders, and murderers. The Criminal Justice Bill 2002-03 contains part 10 providing provisions for retrial of cases involving “qualifying offences”; “a person previously acquitted of a ‘qualifying offence’ to be tried for that offence” and DNA evidence would be the main source of evidence that can be provided in the retrial.7 Part 10 of the Criminal Justice Act of 2003 mainly details about the qualifying offences and retrial of the acquitted in their relevant cases through providing the provision and support of DNA evidence. In this regard, it is important to mention that this amendment is only restricted to the qualifying offences, which include, war crimes, terrorism, murder and rape8. In other words, the jurisdiction of this Act is only applicable to the qualifying offences and other cases have been allowed to receive the similar kind of treatment from the rule of double jeopardy. For example, statistics reveal that burglary, street crimes, which are considerably growing in number and areas as well, are more serious than the few cases coming under the jurisdiction of part 10 of the Criminal Justice Act of 2003. In other words, the application and immunity for crimes other than qualifying offences is largely available and can be availed by the offenders. Scientific evidence has become another important reason behind the enactment of the part 10 of the Criminal Justice Act of 2003. The above mentioned provisions clearly stipulate that the prosecution is required to provide strong and sound scientific evidence especially in the form of DNA for the retail under the part of the Criminal Justice Act of 2003. Application of the part 10 of the criminal justice act of 2003 is reflected by the following cases. First, in R v Dunlop,9 the prosecution was unable to provide strong and convincing evidence to prove the guilt and involvement of the defendant in the highlighted case; however, the defendant confessed the murder to perjury; and in R v Miell,10 the defendant confessed the murder while serving in prison as the offender pleaded guilty to perjury.11 Based on the above facts, following conclusions are reasonable and understandable as well. First, the rule of double jeopardy was fundamentally violating the basic human rights as the complainant has not been given a fair chance of justice. For example, in the murder case of Julie Hogg, her mother continued her struggle not only for accessing justice but also for the abolition of the rule of double jeopardy as she was fully convinced that the nominated person was really involved in the murder of her daughter; For the period of 15 years, her ordeal continued and suffered from the loophole in the form of double jeopardy in the UK’s criminal justice system.12 In other words, the rule of double jeopardy has basically proved that it doubles the sufferings of the victims as this has been validated by the ordeal faced by the parents of Jolie Hogg. Second, the retrial of previously acquitted individuals also proves the fact that the rule of double jeopardy has been misused by the offenders and criminals as well. And over the period of last 800 years, this rule has been valid and applied to many cases. In this regard, it is important to highlight that these are a few cases which have been retried under the part 10 of the criminal justice act of 2003. However, there may be hundreds of such cases which have indirectly received support of the rule of double jeopardy as the English law has failed to apprehend the culprits and offenders who used the curtain of the double jeopardy rule for hiding their crimes. At the same time, it is generally assumed that the English legal system is enshrined to dispense justice to all of its citizens through different provisions. However, when the misuse of the double jeopardy rule is considered, it is not incorrect to deduce that the English legal system has indirectly supported the criminals through the provision of double jeopardy; besides it has failed to provide any equitable remedy to many victims who were deprived of justice through the provision of double jeopardy rule. However, the repeal of double jeopardy and enactment of the part 10 of the Criminal Justice Act of 2003 has provided some judicial relief to many victims’ families including Julie Hogg. Through the use of qualifying offence, all offenders would be brought to justice. But, there are still other changes that should be introduced instead of repealing the part 10 of the Criminal Justice Act of 2003. First, the role and capacity of the prosecution should be increased. In this regard, it is important to mention that till this point of time, in almost all cases, it the prosecution service that have failed to provide enough and strong evidence against the defendant and due to this, many offenders are set free by the courts. And subsequently, the defendants use the rule of double jeopardy for receiving full immunity from the prosecution and legal proceedings as well. In other words, it can be highlighted that in the presence of double jeopardy rule, the defence uses it for own favour after the weak investigation and weak evidence provided by the prosecution service. Keeping this view in mind, it is highly essential that both role and capacity of the prosecution service should be increased and this can only be done through providing more legal support relating to types of evidences. For example, the part 10 of the criminal justice act of 2003 has been implemented because of inclusion of scientific evidence for proving guilt of the defendant in the reported case. And due to this increase, the prosecution has become able to retry those who were previously acquitted because of lack of strong evidence against them. In a summary, the rule of double jeopardy has been misused by the defendants in fact has only provided benefit to the offenders and law breakers. The retrial of Jolie Hogg and Stephen Lawrence are two important examples to prove that this law has been protecting criminals at the cost of justice dispensation. Subsequently, the introduction and implementation of part 10 of the Criminal Justice Act of 2003 has repealed the rule of double jeopardy and enabled many families to receive justice from the legal system through the application of this new legal rule in which the qualifying offences are also retried. Bibliography Bowcott, O ‘Stephen Lawrence murder retrial due to double jeopardy repeal’ The Guardian, (18 May 2011) Broadbridge, S Double Jeopardy, Standard Note SN/HA/1082, Home Affairs Section, House of Commons, 2009, Hudson, B, Justice in Risk Society, London, SAGE, 2003, 68 Parliament, ‘Protection of Freedoms Bill’ Parliament, (11 February 2011 Rozenberg, J ‘First double jeopardy killer jailed’ The Telegraph, (12 September 2006) Whitehead, T and Hughes, M ‘Stephen Lawrence murder: change in double jeopardy law allowed Gary Dobson prosecution’ The Telegraph,(03 January 2012) Case laws [2006] EWCA Crim 1354 [2007] EWCA Crim 3130 Read More