Thursday, 19 May 2011

Why double jeopardy matters

I would not have been at all troubled if  summary justice had  been meted out at the time  to this racist gang in some darkened alley in South East London. So why do I feel squeamish that in the case of one of them - Gary Dosbon - the legislation of 2003 has been used to  revoke the ancient common law principle of double jeopardy  so he can be tried again for a crime for which he was previously found not guilty ?

Some sentimental twaddle has been written about a cornerstone of 'our' justice system by those whose heart is in the right place but whose grasp of history is wanting. Freedom in this country - or any other - has not been guaranteed by legal principles. Yes - double jeopardy was meant to give the individual protection from persecution by a state that without it could manipulate evidence and juries until it  secured the desired conviction. But throughout history arbitrary imprisonment and punishment by the state has managed to go unchecked because - and no apologies for  getting a bit  doctrinaire here -  the state does not exist separate and apart from politics and class conflict.

I've even seen some things written on this case that evoke Magna Carta. A basic understanding of the thirteenth century would tell you that this much misrepresented document  was the product of the fragile balance in the struggle between the feudal class and the emerging centralised  state represented by the crown-  and nothing to do with a concept of universal human rights superimposed centuries later. In fact significantly Magna Carta only really entered the popular consciousness in the seventeenth century when it was dug out of obscurity and used to give legitimacy to another struggle against another arbitrary and repressive state - the Stuart monarchy. In otherwords it was politics - and specifically the  radical popular movements of the English Civil War -  that linked universal freedoms with legal principles.

But my squeamishness about double jeopardy isn't based on any notions of  'ancient principles' - it's very practical.

Quite simply allowing the state the possibility of a second-bite for a conviction actually facilitates and perpetuates the kind of incompetent and corrupt police investigation and prosecution seen at the time of the Stephen Lawrence murder. And anything that lowers the bar on the already plummeting standards of justice is a real threat to all of us.

1 comment:

Lee said...

I too have concerns about the abolition of double jeopardy and how this allows the state to persecute people because a jury supposedly returned the wrong verdict. In the case of Dobson it also seems that the legislation is retrospective; thus denying him his basic civil rights twice over.

Another concern I have is the case of the other person charged with Dobson; how on Earth is he going to get a fair trial when it seems that just being in the presence of Dobson at the time is enough evidence to charge him - a case of guilty by association?

I also read somewhere that he has now been in custody for eight months in secret without being charged. What type of justice and democracy is this?