Earlier this year the British government overturned the old “double jeopardy” rule, that previously meant that a person could not be tried twice for the same offence. Today, Reuters reports that the first case of a man to face jurors for a second time for the same alleged crime is to go ahead.
This is another step down a slippery slope, precisely because the argument for ending the rule is so seductive at first glance. It is possible to sympathise with victims or relative of crime victims who see a person whom they think has gotten away with it. Many years ago in the course of my then job, I watched several court cases in my native East Anglia and saw people get away with crimes on technicalities. It was maddening.
But – the double jeopardy rule existed for a reason. If people can be repeatedly tried for the same crime, it creates a potential very bad and unintended consequence: police and the Crown Prosecution Service will become lazy in the preparation of cases. Why bother to get a case presented as powerfully as possible and with as much care if you think that if X gets acquitted, one can always have another go, and another, and another….?
The potential for abuse of power from double jeopardy is at the core of why the rule exists. The law in the United States was based on the English model. Hard cases, however appealing, make bad laws, as they say. This is a bad day for justice in Britain. There have been a lot of them lately.
Even leaving aside the double jeopardy issue (and I am one hundred per cent in agreement with you) I fail to see how anyone can possibly get a fair trial in the face of the all bullish noises coming from the CPS, duly reported by a compliant BBC.
If it’s to be a jury trial, the accused is sunk.
I recall seeing a Law and Order episode that pointed out that the double jeopardy protection in the US constitution isn’t absolute. The example was a trial where the judge was corrupt, I believe. That defendant could be tried again because he never had a “real” trial in the first place. This exception, however, just emphasized the unusual circumstances that have to occur to justify disregarding this protection. The “new and compelling evidence” standard that now appears to be in place in Britain sets a much lower hurdle. Sometimes there is such a thing as a “slippery slope”.
But were not the police officers in the Rodney King case, who were acquitted, retried, convicted and sentenced for the same crime merely by giving it another name?
The Rodney King defendants were tried not only for another crime (violating his civil rights), but in another court (federal vs. state). This was a common tactic during the civil rights struggle, as it was nearly impossible to get a guilty verdict in those cases in a southern state. The US injunction against double jeopardy is not absolute, but evidently the standard is higher than it is in the UK.
Again, a good example of why the police should have nothing at all to do with the legislative process: like the 90-day law, this law (abolishing the prohibition against retrial) originated with and was lobbied heavily for by the ACPO.
The funniest thing about Blair’s ‘the police say we need 90 days’ is that exact sentence: I’m sure if asked, the police would also say that they need the ability to arrest people and detain them for questioning without concrete reason, the ability to declare no-go areas, martial law, search people entirely at random… etcetera.
Why are we listening to these people? Every policeman surely wishes he could lock someone up ‘because I know he did it’ so why the hell do we still listen to them?
It’s too bad that Great Britian has no Constitution. With that lack of protection and a parliamentary system with no practical separation of powers this was almost guaranteed. Perhaps this would be a good time for British “citizens” to have themselves fitted for shackles of their own purchase. The Government issued ones are going to be somewhat less comfy, although no less confining.
If you hadn’t allowed yourselves to be totally disarmed, you might have had a chance.
What a pity.
Gerry, in the other Washington
Gerry N – We have a Constitution. It is not written, as yours is and it wasn’t all devised in one go. Ours emerged over hundreds of years.
The first thing the next government must do is write it all down. We must have a written constitution in case of another arrogant wrecker like Tony Blair.
Verity,
I have over decades come round to the idea of a written constitution. The trouble is that if it were written in the present climate of opinion it would include all sorts of rights that are not rights at all but social democracy enshrined forever.
On double jeopardy, there is a very real danger of the State carrying out a forensic equivalent of the Irish “Neverendum”: keep repeating the question until it got the result it wanted.
I see Johnathan Pearce’s point as being an application of Parkinson’s Law. If the CPS can be lazy they will be.
Parkinson’s Law is also one of my reasons for objecting to the proposal for ninety days’ detention. If you give them 90 days to investigate, they will take 90 days. We can’t afford to move that slowly.
An “unwritten” Constitution? Indeed.
Seems to be proving istelf to be of smaller worth than the paper it’s not written on.
And even if it somehow gets wrtitten, how is it to be enforced, as the only persons in GB allowed to be armed are the police and the criminals?
What exactly are you to do if the police are the criminals? Or vice versa.
If I were in GB, I’d be executing escape plans. By the grace of Almighty G-d I was born an American, Thus escape plans are unnecessary for me.
So far.
One of the major opponents to the ‘Double Jeopardy’ system, and unfortunately a friend of the dreadful Cherie Booth – Helena Kennedy QC – wrote recently that the chance for retrial, on the same charges, of any defendant found not guilty is something police and CPS bureaucrats must now be salivating over. We should remember that these functionaries have no concept of expenditure in these matters so, like some insurance companies who are prepared to appeal a minor traffic claim as far as the High Court in an ‘all or nothing’ gamble, we should now expect the courts to be choked by police and Treasury solicitors desperately pursuing vendettas against anyone so foolish as to be cleared of any wrongdoing by the courts.
Of course we should also soon see The Sun producing a YouGov survey proving that 76% of the population backs the notion that anyone found not guilty should be subject to innumerable retrials until found properly quilty …
This is the public servants Excused Incompetence Rule that all our civil servants desire,”We got it wrong the first time ,doesn’t matter we can keep doing it”
That useless organisation the CPA should not be allowed to fly a kite when they have weak cases.
New evidence is always going to be available with advancing technology,what are they going to do,dig people up and charge them?
A factual question: was “double jeopardy” also abolished in Scotland and, if not, what can be the need to abolish it in England? Ditto, Northern Ireland.
Natalie Solent says: “The trouble is that if it were written in the present climate of opinion it would include all sorts of rights that are not rights at all but social democracy enshrined forever.”
Agree without reservation. This is a fearsome thing. Can anyone suggest a solution?
“Parkinson’s Law is also one of my reasons for objecting to the proposal for ninety days’ detention. If you give them 90 days to investigate, they will take 90 days. We can’t afford to move that slowly.”
I think agree, with reservations though. I accept this is a real concern, although there might be triggers written in.
Gerry N – “If I were in GB, I’d be executing escape plans. By the grace of Almighty G-d I was born an American, Thus escape plans are unnecessary for me.”
We also thank Almighty God for this fact, Gerry N. And long may you confine your presence to the United States.
Double jeopardy, stuffing the House of Lords with his toadies, etc. – supporting us in Iraq was terrific, but I would be very much afraid if I lived in the UK. Pardon my colonial ignorance, but could the Queen do anything about Blair’s gutting the British Constitution? Doesn’t she still have to give some form of consent to the government and its laws? I understand that she traditionally just reads the speeches he hands her, but since Blair himself has overturned so many of the “understandings” that seem to make up your constitution, would something like that be possible?
If he keeps it up, “British Constitution” will just be something you say to show that you’re not drunk.
Mitch writes:
“If he keeps it up, “British Constitution” will just be something you say to show that you’re not drunk.”
You’re quite right. The Queen could, in theory, do all sorts of things to frustrate this pocket Napoleon, but it isn’t going to happen – not least because it would hasten the end of the monarchy.
The best we can hope for is that the wild-eyed little zealot is knifed by his own (former) supporters. We shouldn’t have too long to wait, judging by current events.
All acts passed by parliament require “royal assent” before they become law. In theory, the Queen could refuse to give her assent but I expect it is a good few hundred years since this was last done. Short of this nuclear option I don’t think there is anything else the Queen could do to stop a government.
In Belgium a few years ago the parliament voted to legalize abortion but the King couldn’t stomach signing the law so he abdicated for a day, his son took over signed the law and then gave the crown back to his father.
But – the double jeopardy rule existed for a reason. If people can be repeatedly tried for the same crime, it creates a potential very bad and unintended consequence: police and the Crown Prosecution Service will become lazy in the preparation of cases.
Not just that. If someone can be prosecuted at the expense of the government, an unscrupulous prosecutor could just prosecute them until the target is ruined financially by legal expenses.
Gerry N – “If I were in GB, I’d be executing escape plans. By the grace of Almighty G-d I was born an American, Thus escape plans are unnecessary for me.”
Verity: “We also thank Almighty God for this fact, Gerry N. And long may you confine your presence to the United States.”
Not to worry. I make it a practice niether to visit, nor spend my money in Socialist Police States.
I didn’t know about this evolution and I pretty “surprised” to hear this. As a lawyer I consider it being central to have rules like the “double jeopardy”. It’s rules like this that limit the government’s power and repealing them is a very bad omen…
Regards from Continental Europe
The Rodney King defendants were tried not only for another crime (violating his civil rights), but in another court (federal vs. state).
And something similar seems already to have happened in the case Jonathan quotes. According to the article: “In 2000, he was jailed for six years after pleading guilty to two charge of perjury arising out of evidence he gave at the murder trials.”
This is highly unusual. People are seldom prosecuted for perjury in their own defence. Normally it is confined to bearing false witness against or on behalf of others.
We do have a written constitution. It’s just spread amongst several documents rather than a single one. Take a look at this:
English (and Welsh) Constitution
(I’m not sure what the status of the Scottish Constitution is, but seeing as they’re slowly breaking away from the UK whilst first screwing the English taxpayer for as much as possible, I think the point is moot).
“In theory, the Queen could refuse to give her assent but I expect it is a good few hundred years since this was last done.”
Queen Anne in 1708 was the last monarch to veto a bill passed by parliament and William IV in 1834 was the last monarch to fire a government he disagreed with. Since then, it’s been a constitutional convention that the monarch’s reserve powers can only be exercise on the advice and consent of ministers – or to put it another way, the Queen needs Tony’s permission to fire him.
The British Library has this to say about King John and the Magna Carta,
Substitute ‘President Tony’ for ‘King John’ and one begins to see that maybe it is time for an update on the Magna Carta.
” so why the hell do we still listen to them ?[the police]”
Isn’t that an overzealous exageration ?
The Police exist in order to protect our rights and defend us against criminals. That’s what they do most of the time, and we should be thankful for it.
There might be ocasional excesses that need to be curbed, but I don’t think you suffer from too much police oppresion, in general. Basically the police is a vital institution, and they need to have the power needed to efficiently perform their duty. And, yes, we need to listen to them, even is we don’t always agree, and adopt their ddemands.
About double jeopardy: while in general it is not a good idea – in special cases, when new evidence is unearthed that didn’t exist at the time of the trial, justice demands a retrial. This might result sometimes in the acquittal of a wrongly condemned person, and sometimes in the condemnation of one that was acquitted before.
Natalie:
It doesn’t follow that a written UK constitution is automatically going to be a recipe for “include all sorts of rights that are not rights at all but social democracy enshrined forever.”
For starters under our existing unwritten constitution, primacy in constitutional matters resides with the Lords and not the Commons – I’d strongly contend that only a committee of the House of Lords or a Royal Commission under their supervision has the legitimate authority to draft a written constitution – properly constituted and under clear terms of reference to confine their work to matters of governance and a bill of rights, this should serve to mitigiate the possibility of political bias.
Second, implementation of such a consitution would require a plebiscite – any replcement for our existing consitutional system must carry the weight of it being the will of the people.
Third, unlike the EU constitutional treaty, there is no requirement for us to include concessions to specific interests just to bring them on board.
The EU constitution just wasn’t, for me, a constitution at all – and as someone who’s spent the last 7 years drafting constitutions for NGO’s I know a fair bit about what are and aren’t legitimate matters of governance.
If we are to retain the EU then it does need a constitution which clearly defines its governance systems and where the boundaries lie between the collective authority of the EU and the national authority and interests of member states, and that in itself is a massive debate. A properly drafted EU constitution which confines itself solely to questions of governance could, as Eurosceptics fear, lead us down the road of a Federal European Superstate but it could equally prevent that from happening – it all depends on where and how the boundaries of authority are drawn.
What the EU put forward, however, wasn’t a constitution – it had bits of constitutional law in it but most of it consisted of a mishmash economic and social treaties designed to keep individual member states happy – a well written constitution should define clear the basic processes of governance and law-making not how economies are run or social legislation is implemented, its about how you do things not what you do or why, that’s the job of the legislature and the judiciary.
Between what we have now, plus Montesque’s ideas on the separation of the powers of excutive, legislature and judiciary, the US constitition and Bill of Rights and ECHR – and I must prefer the US right model due to its lack of ‘cop out’ clauses – it should not beyond us to draw up a written constitution on which we get get broad agreement within the UK and which does only what a constitution should do.
That’s not entirely true. The Queen has several rights (the regalia majora, IIRC) as a constitutional safeguard. She can require Parliament to dissolve, she can order the use of military force if it refuses, she can refuse assent without advice to legislation extending the life of a Parliament (the HoL also has a veto on this), she can dismiss a Prime Minister and she can refuse a request for dissolution of Parliament. This last was nearly exercised in 1974 when Wilson threatened a third election & the Queen “let it be known” she was not in favour.
Pretty much everything else is done on advice or is delegated, but there are still serious reserve powers.
EG
Euan is correct. An interesting point is whether the Queen would ever, in current circumstances, feel so alarmed at what Bliar is up to that she would refuse to grant Royal Assent to a piece of legislation.
Take the Civil Contingencies Bill, for instance. She seems pretty much prepared to sign anything. I have even heard Libertarian Alliance author Sean Gabb, who has been a staunch monarchist for many years, wonder whether it is time for libertarians to start asking what is the point of a constitutional monarch if she/he never uses their residual powers at all.
Johnathan Pearce writes:
“She seems pretty much prepared to sign anything.”
Or say anything. My toes still curl at the memory of the Queen’s speech a few years ago, when some sub-literate New Labour clown had her utter the words: ‘My government have….’
As I suggested earlier, there are steps HM could take but such is the pressure on the institution of monarchy that I find it hard to imagine what circumstances would propel her to take them.
After all, what could have been more sinister than handing the bulk of our law making to a foreign power? And that has already been done.
“What the EU put forward, however, wasn’t a constitution – it had bits of constitutional law in it but most of it consisted of a mishmash economic and social treaties …”
There you are ! The EU constitution is probably the best that can be realistically expected in our age.
I’m afraid that writing a new constitution is an impossible task in our days and age. That is – any new constitution would look like that ridiculous EU 500 page joke. It’s the same anywhere, EU, UK or US.
The Iraqi constitution they wrote recently isn’t a very inspiring thing either.
So, I’m afraid, the age of constitution writing is over. We would not like any constitution written nowadays.
Julian wrote,”Substitute ‘President Tony’ for ‘King John’ and one begins to see that maybe it is time for an update on the Magna Carta.”
When I was 9 or 10 we were taught that the United States Constitution was an update or at least the descendant of the Magna Carta. Unfortunately it now appears, based on my daughter’s education, that kids aren’t even told of the Magna Carta, probably because of it’s link to those “oppressive Anglo-Saxons” who wrote it .
She also managed to make it through college with no idea of the Athenian,Roman and Spartan influences on the people who founded our nation. Have to wipe out all traces of those nasty dead white men, you know.
that kids aren’t even told of the Magna Carta, probably because of it’s link to those “oppressive Anglo-Saxons” who wrote it .
Heh. Ironic given that it was of course written by Normans, who were at the time busy oppressing the poor ickle Anglo-Saxons. Well, actually things were starting to merge a bit, but the ruling class were still Norman.
FYI, B’s Freak, from the National Archive’s FAQ(Link):
I have a question. Would taking the documents that make up the “unwritten Con.” and basically putting them in a binder, and saying these are beyond the power of Government to infringe be adequate to address your concerns?
My concerns in this instance were more about the degrading of the educational system in the US. As a kid I admired Thomas Jefferson and Thomas Payne ( my dad was stationed in Virginia at the time I first started having heroes), whereas my daughter who is now finishing up her Master’s in psychology never heard of Payne in school and believes that Jefferson can be summed up completely as a nasty slave owner.
She also wasn’t taught about the Articles of Confederation.
As far as making the binder free from government infringement, to me the most beautiful phrase ever written into a binding contract (my view of the US Constitution and acompanying Bill of Rights) is “Congress shall make no laws”. So yes I would find that highly satisfactory, especially as I have a Grandmother and aunts, uncles and cousins living in Britain and am as proud of my English heritage as I am of my American one.
There is another view on constitution. That is to specify that some acts of parliament rank higher than others, and can only be added, changed or repealled by a larger majority (say 75%) in both Houses.
Such acts, unlike those in the USA, do not specifically need to be labelled as “constitution”. They could be on any issue.
However, such acts would be accepted as more important, and through the required larger majority, more requiring of cross-party consensus, for them to be brought into effect.
Best regards
I don’t know British law, so could someone please help me out with this. Do the judges have to abide by this ? Or is there a court where the judges can say that this violates the principles upon which British or English society is founded? Or is there ever an equivalent to “jury nullification” whereby a judge refuses to convict because they don’t believe in the law that is being applied?
The Queen would have one shot. If she missed, she would bring about the dissolution of the monarchy. Especially at the hands of a malicious little viper like Tony Blair – although I am sure history is full of spite-filled Tony Blairs.
She’s an old lady. She wants to preserve the monarchy and she won’t chance it. She will preserve the status quo, hoping that things will change – although given her heir, she probably isn’t holding out much hope.
Charles will be an absolute disaster as king. I would rather our Queen dynamite the monarchy by challenging Tony Blair right now than let it fizzle away under a lost, disconnected, politically correct King Charles. I’d rather see the British monarchy go out in a blaze of defiance than in an endless stream of vapid concessions to the enemies of freedom.
‘Ere! Where’s that David Carr, then? We got irony deficiency round ‘ere, innit?
Jury nullification does exist. There was a recent example of it when some University of Bradford Peace Studies lecturers were charged with helping a Soviet spy to escape from prison in Britian in the 60s. The jury refused to convict despite the evidence on the basis that the Cold War was over now.
Government actions are subject to judicial review whereby judges can rule that a minister did not act in acordance with the law. One of the big disadvantages of an “unwritten consititution” is that judges have nothing to point to if they believe that government actions are fundamentally or consititutionally wrong.
I don’t imagine that Charles will be king anyway. Odds are on his defaulting the inheritance to William so that Charles can end his days pottering around Highgrove and communing with nature.
Verity writes:
“‘Ere! Where’s that David Carr, then? We got irony deficiency round ‘ere, innit?”
You know, I’ve been meaning to ask that question for several weeks. David Carr’s posts are sorely missed.
GCooper, and others, David Carr will be back but he is incredibly busy with other things at the moment. But the master will return!
I wouldn’t underestimate the abilities of the errant Schleswig-Holstein-Sonderburg-Glücksburg gene to make turn Charles into the agent of the kind of gunpowder plot that Verity hopes for. The gene’s already expressing itself in his forehead, slightly wild look and kooky ideas, and I suspect when he gets to be monarch (and I see no reason why he would abdicate as many want us to believe) it may well go off.
GCooper, slavish as the Queen often appears to Blairite proclamation, ‘My government have….’ isn’t sub-literate I don’t believe, even if you’re the most outdated form of prescriptivist linguist. Standard British English often uses plural verbs to complement singular nouns that refer to collections of people within organisations, where American English will almost always use the singular verb. See for instance this Wikipedia article under “Grammar”.
Actually, as an American with some (limited) past exposure to British English (via British expats living in Japan and South Korea) I did mean to ask about that. My instinct would have told me that “my government have…” was grammatical in British English. However – I also noticed that this “plural for groups” rule isn’t very consistent – may even be lexical, in which case it’s really up to the noun in question. I gather from this thread that “government” is generally singular – despite referring to a collective entity? What about “Parliament?”
No, it’s not consistent when viewed from a flat “collective noun vs. verb” perspective, but I suspect there’s some contextual and semantic consistency hidden below the surface when a person pulls out a verb. What’s clear is that British people prefer plurals, but not exclusively, and vice versa. And when a collective term really does imply a plurality by its form, it’s surely hard for even an American to maintain a singular: “the Beatles is”, anyone?
It’s kind of off-topic and was an aside here: I’m rabidly anti-prescriptivist with regard to linguistics, in a similar way that many here are I suppose rabidly anti-interventionist with regard to the state’s power. For an example of the complexity of the issue above, this languagelog post provides a vivid description of one aspect.
People are notoriously unreliable at predicting how they would use a term, and a real corpus of speech is often required to find out how they really talk: but I can imagine that I’d use “the Government have” at least as often as “has”. Parliament, more often singular. Why would be a topic for another forum.
Actually, I’m not aware of any examples where an American fails use the plural in cases like this. But then, that’s the point: the American “rule” is based entirely on the form. If a word shows up plural, it gets plural verb agreement. If it shows up singular, it gets singular agreement. (Witness – “the Beatles are,” “Pink Floyd is.”) American English uses the linguistic default: agreement is entirely morphological and not semantic. British plural agreement for collective nouns is lexical reanalysis on top of that – but only for certain words, it seems. That’s why one has to ask native Britons in cases like this. There’s no rule that I can use to figure out for myself when a British English speaker would use the plural form for a collective noun – the “rule,” as stated, being merely an approximation (like so many other linguistic rules). It’s interesting because I have no intuitions here.
OK – to the rest of you – sorry for the boring Linguistics talk.
Point taken: Americans tend to follow word-form, and British people tend to a more semantic sense in this case. But emphasis on tend – as the article I referenced and links from it show, neither side of the Atlantic uses either form consistently, and if you try to apply a rigidly consistent form because it’s technically correct, you end up with sentences like:
which I would suggest jars with both sides. This is definitely a discussion that needs taking offline, yes: it’s very hard for me to stop talking linguistics when I start.
That’s a really interesting example! In fact, it does jar a bit – but agreement in all American dialects (as far as I know) is still unambiguously singular. I can’t imagine myself or anyone I know saying “my family are.” But as you say, it does jar a bit – neither form seems completely satisfactory (enter the OT virus…).
Ok – this is the last one, and then I promise I’ll stop.
I couldn’t help posting it, considering I ran across it within hours of my last post – but here is an example of a quotation from a student newspaper article where the speaker uses both forms in the same sentence:
As far as I know, this speaker is American.
Yep, it’s variable. One day I’ll try and work out what linguistic environment might influence me to choose one or the other form, but I bet it’s been well-hashed out on languagelog and elsewhere. Must look. As you can imagine, alt.usage.english discusses it to death but it’s more what, not why.
But the essential difference between the UK and US is very obvious: with massive caveats, the “my family is”/”my family are” google hits ratios (I included “my” to reduce false hits) are roughly 1:1 for the UK and 6:1 for World. I wonder why.
You don’t link an email address to your name (pace Verity in a different thread), so I’ll post this here (I’m not sure anyone else is still reading this thread anyway). I emailed the speaker from that article, and she’s definitely American. In addition – she reports that “my family are” is more normal for her – which I found really surprising, given that almost no dialect in North America I’m familiar with does that!
She also told me, however, that her mother is from western Pennsylvania (she grew up in Indianapolis) – which might be significant. There is lots of literature about a certain chain of dialects in western Pennsylvania extending (in pockets) into northern Ohio and northern Indiana. I have never, however, read that this type of agreement was supposed to be one of the characteristics of these dialects. I thought mostly it had to do with adverbials.
Oh, sorry Joshua. Well, what I do is supply both an email address and a URL in the two boxes offered when I submit a comment, and as is standard for most weblog software, it links to the URL in preference if supplied. The rational behind this is that a website can provide links to an email address (as does mine), but not vice versa. It’s mainly to avoid spam.
Certainly very interesting to hear your American friend uses the traditionally British variant: I wonder if it is regional as you suggest. I’d guess it may be useful to plot when usage diverged either side of the Atlantic, and what era of immigrant population largely occupies western Penn – I’m pretty ignorant on American immigration patterns. Previous experience (e.g. -ize vs -ise) would lead me to the suspicion that the American usage may actually be older than the British one, but that’s absolute guesswork.