UK Law Articles
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The Times
October 12 1999
Reforms raise prospect of new Lawrence trial
BY FRANCES GIBB, LAW EDITOR
THE prospect of a second trial of the youths accused of murdering Stephen Lawrence is raised today under reforms recommended by the Government's law reform body.
The Law Commission of England and Wales is proposing a relaxation of the centuries-old "double jeopardy" rule, which serves to protect people against being tried twice.
A retrial might be allowed where there is a serious crime and substantial new evidence comes to light, it suggests. It also asks whether the change, which would apply only to serious crimes, should apply retrospectively. But it makes no recommendation on whether the three Lawrence youths should face another trial.
The commission's proposals are contained in a consultation paper, issued in response to a recommendation in the report into the death of Stephen Lawrence in southeast London by Sir William Macpherson of Cluny. As a result, the Home Secretary asked the Law Commission to look into the issue.
The proposals would need primary legislation. But with ministers' backing, which is expected to be forthcoming, they could be included in a Crime Bill this session.
Stephen Silber, QC, the Law Commissioner who framed the proposals, said: "If implemented, our proposals will ensure that acquitted defendants are not prosecuted for a second time unless it is fair and just to do so." That would be allowed only if evidence emerged to show that the defendant had committed a serious crime, or "because the first trial was a sham because the judge or magistrate had been intimidated or interfered with".
But the Law Commission, which was advised by the leading human rights lawyer Ben Emmerson, believes that the change would not fall foul of the Human Rights Act. It argues that there are already exceptions to the principle barring second trials, for instance where a trial has become "tainted" because of jury-nobbling or witness intimidation.
Secondly, although the European Convention on Human Rights appears to enshrine the double jeopardy rule, that provision is aimed at stopping the prosecution coming back for a "second go".
The proposals prompted attacks on civil liberty grounds. John Wadham, legal director of Liberty, the human rights group, said: "The protection for double jeopardy is a fundamental part of our criminal justice system and we remove it at our peril."
People arrested and prosecuted, who had been detained in custody before facing trial, should be free once acquitted by a jury from having to go through the whole process again just because the prosecution had found new evidence.
Under the Law Commission proposals, it would be for a judge to decide whether a second prosecution could be mounted.
A judge in the Lawrence case ordered the acquittal of Neil Acourt, Luke Knight and Gary Dobson on the ground of lack of evidence after a private prosecution brought by the black youth's parents in 1996.
The paper says cases that could be covered by the new exception include a "stranger" rape trial where the defendant successfully claims a case of mistaken identity and is acquitted. The prosecution might then be allowed to retry the accused if, for example, new DNA tests were developed that enabled police to use smaller samples to identify suspects.
The proposals
The commission recommends that the double jeopardy rule be relaxed where:
- New evidence makes the prosecution case "substantially stronger"
- The evidence could not have been obtained before the first trial "if the prosecution had acted with due diligence"
- The offence was serious enough to be punishable by at least three years in jail
- It was almost certain that the defendant would be convicted
- The court was satisfied that a retrial was "in the interests of justice".
