May 23, 2011
Double jeopardy and the murder of Stephen Lawrence
The Court of Appeal of England and Wales has judged that Gary Dobson may be tried for the murder of Stephen Lawrence in 1993, under the terms of the Criminal Justice Act 2003. This follows a previous unsuccessful private prosecution in 1996 when three men, including Dobson, were tried for Stephen Lawrence’s murder at the Central Criminal Court. The jury was directed to acquit on the basis that identification evidence was not admissible.
Part 10 of the Criminal Justice Act 2003 amended the rule against double jeopardy to permit a re-trial if there is new and compelling evidence against the acquitted person. This provision has recently been emulated in Ireland in the Criminal Procedure Act 2010 (see comment here) and in Scotland. Under the English legislation evidence is defined as “new” if it was not adduced in the proceedings which resulted in acquittal, and is “compelling” if reliable, substantial, and appears highly probative of the case against the acquitted person. The first conviction based on such new evidence was in 2010 when Mark Weston was found guilty of murder at Reading Crown Court. After having been first acquitted of murder in 1995, his conviction was based on new DNA evidence.
The Court of Appeal emphasised earlier this week in R v Dobson that “compelling evidence” does not mean that the evidence must be irresistible, or that absolute proof of guilt is required. Once the court is satisfied that new and compelling evidence is available section 79 permits the court to make an order for a new trial to occur only if it is in the interests of justice. A non-exhaustive list of criteria in determining this question is provided: the court should have regard in particular to whether existing circumstance make a fair trial unlikely; to the length of time since the offence was allegedly committed; whether failure by an officer or by a prosecutor to act with due diligence or expedition prevented the new evidence from being adduced in the earlier proceedings or whether any officer or prosecutor has failed to act with due diligence or expedition since the proceedings.
The application in the Dobson case centred on new scientific evidence which if reliable would place Dobson in very close proximity to Stephen Lawrence at the moment of and in the immediate aftermath of the attack; proximity, for which the court stated “no innocent explanation can be discerned.”
Defence counsel submitted that the evidence was unreliable and of no sufficient probative value, on the basis that the results of the new examination of Dobson’s clothing were likely to be the product of contamination through contact with Stephen Lawrence’s blood and clothing. Moreover, the constant publicity would preclude a fair trial.
Despite this valid argument regarding a fair trial, the Court of Appeal concluded that sufficient reliable and substantial new evidence existed to justify quashing the acquittal and ordering a new trial. It stressed that the presumption of innocence continues to apply, and that the forthcoming trial would be a fresh consideration of whether Dobson was involved in Stephen Lawrence’s death. It further cautioned that any reporting of this decision would be wise to confine itself to the terms of the present judgment.
Precedent was set in 2002 which made double jeaopardy permissible in Northern Ireland so why not in England & Wales?
“The judge accordingly was not justified in drawing an adverse inference under Article 3 of the 1988 Order. That does not end the matter, however, for it is then necessary for us to consider whether his drawing the inference has the effect of making the conviction unsafe. He placed some emphasis on this point in reaching his conclusion that the appellant’s account of the incident was untrue. If the evidence had remained as it was at the trial, we might have felt constrained to hold that we could not be satisfied that he must have reached the same conclusion about the appellant’s account if he had not drawn the inference. We now have the evidence of Mr Bradley before us, which we have dismissed as a false account.”
http://www.courtsni.gov.uk/NR/rdonlyres/D2347D0B-8FF1-4DAD-9774-532CC8F5EFEA/0/j_j_CARC3538.htm