Two arrests - Justice for Stephen Lawrence?

[funk de fino]

In fact, throughout the whole inquiry, no officer is positively identified as being overtly and consciously a racist bigot. Which is kind of the crux of the matter. No individual is bad, yet the organisation as a whole is bad. This is indeed a difficult concept to digest.

The fact that its a difficult concept helps to explain why it has only stuck to the police, who are easy to (incorrectly) label as bigots, but it gets a bit harder for the public psyche to attach this label to nurses and firemen and civil servants.

I agree and I found the military in the UK to be like this when I served. For both racism and homophobia.

Almost like it was accepted unconsciously because that was the way it was supposed to be, while being difficult to pinpoint anything that flagged it sufficiently for someone to do something about it. It kind of made you uncomfortable while also feeling the behemoth could not be changed.

 

[LondonJohn]

I agree and I found the military in the UK to be like this when I served. For both racism and homophobia.

Almost like it was accepted unconsciously because that was the way it was supposed to be, while being difficult to pinpoint anything that flagged it sufficiently for someone to do something about it. It kind of made you uncomfortable while also feeling the behemoth could not be changed.

While that may be true and accurate, there are two points to bear in mind: firstly, all consequences were the result of actions (or failure to act) - racism/homophobia/bullying had to have at some point been built into policy, enactment, observation and acceptance. And secondly - and by far more importantly - senior managers (i.e. senior officers in the case of the armed forces) had an obligation to identify, address and eradicate issues such as these within their organisation. I would say that it's somewhat acceptable for rank-and-file soldiers or even junior officers to "go with the flow" even while feeling uncomfortable or uneasy about doing so. But senior officers had an obligation to ensure that they had adequate access to real conditions at the coal face (via a proper and well-functioning chain of command) in order to identify and address these sorts of things. That's one of the things that senior officers are charged with doing, but regrettably most military or paramilitary organisations have been way behind the curve in dealing with issues such as racism, homophobia or bullying.

 

[joolz]

But the fundamentally-important point is that any retrial of Fhimah would be based on essentially the same evidence as was presented in the original trial. But let's deal with a hypothetical: imagine if new advances in DNA typing were able to show that Fhimah's (or al-Megrahi's) DNA was on the bomb or the suitcase containing the bomb, and that there was very little chance that this DNA could have arrived there via contamination. In my opinion, this would certainly warrant a retrial of Fhimah, owing to significant new evidence.

Under current legislation (I am assuming here that Scottish law is not dissimilar to England/Wales law in this respect), there's simply no way that a new trial of Fhimah would be allowed as things stand right now. It doesn't matter how vindictive or blinkered the Scottish police, the FBI, or any prosecuting authorities might be towards Libyan involvement in the bombing: the very limited scope of modification of the double jeopardy rule would ensure that Fhimah would never be brought again before a criminal court in relation to this crime until and unless very significant evidence were to emerge.

(I assume that you're not suggesting that Scottish police would go so far as to consider planting DNA evidence in order to fabricate "new" evidence for a retrial......)

(And BTW, I agree with you that Libya almost certainly had nothing directly to do with the bombing, and that it most likely was carried out by a branch of the PFLP with Syrian/Iranian backing. And whatever the truth about the real culprits, I also believe that there was never anywhere near enough evidence to convict either al-Megrahi or Fhimah of the crime.)

Scotland changed the double jeopardy law but didn't remove it. There are specific guidelines for when a case can be prosecuted a second time, info on the gov website here: http://www.scotland.gov.uk/News/Releases/2011/03/22142941

I don't know anyone who believes al-Megrahi or Fhimah were guilty, it was a terrible time for Scots 'justice' - made worse by the furore of Americans when al-Megrahi was rightly released. Paul Foot's research document on the Syrian connection, the way evidence went missing, how money changed peoples' memories and the way al-Megrahi was framed while the UK/US chose to ignore Syrian terrorists for financial reasons was a masterpiece of journalism. But that prob belongs on another thread.

I acknowledge the concerns people have about double jeopardy but I think the Lawrence case (which I think triggered the change) shows that in certain, specific cases, a new trial is warranted. The limitations put on the rule by the Scots government will hopefully prevent malicious prosecutions, I assume it's the same 'down south'.

My heart goes out to the Lawrence family. Stephen's mother has been so strong and dignified through the whole nasty affair. She spoke well after the civil case failed and I'm pleased that the forensics have now spoken.

 

[Rolfe]

Scotland changed the double jeopardy law but didn't remove it. There are specific guidelines for when a case can be prosecuted a second time, info on the gov website here: http://www.scotland.gov.uk/News/Releases/2011/03/22142941

I don't know anyone who believes al-Megrahi or Fhimah were guilty, it was a terrible time for Scots 'justice' - made worse by the furore of Americans when al-Megrahi was rightly released. Paul Foot's research document on the Syrian connection, the way evidence went missing, how money changed peoples' memories and the way al-Megrahi was framed while the UK/US chose to ignore Syrian terrorists for financial reasons was a masterpiece of journalism. But that prob belongs on another thread.

You're right, this belongs in a different thread, but nobody goes to these threads these days except to drop ignorant one-liners complaining that Megrahi hasn't had the decency to die yet, and declaring his obvious guilt.

I had been of LondonJohn's view as regards the ending of the prohibition on double jeopardy though, until the Scottish press started quoting Mulholland and others as determined to go to Libya and find "evidence" to bring Fhimah to trial again. I don't care if it's nothing but empty posturing, it's a gross abuse of power and privilege.

If they can be that blatant, about ten minutes after the law has changed, this does not bode well for the future.

I acknowledge the concerns people have about double jeopardy but I think the Lawrence case (which I think triggered the change) shows that in certain, specific cases, a new trial is warranted. The limitations put on the rule by the Scots government will hopefully prevent malicious prosecutions, I assume it's the same 'down south'.

The Lawrence case may be the archetypical hard case that makes the bad law. If the prosecution authorities are prepared to go after acquitted defendants for purely political reasons, and conduct a blatantly suspect-centred trawl for "evidence" (even to implicitly soliciting fabricated documentary evidence from third parties), I don't trust the judiciary to tell them to sling their hook when they show up with the proceeds. And this is exactly what the current rhetoric on Fhimah is suggesting.

If the new Lawrence trial got the right guys, I'm glad for the family, but I fear for the future of our criminal justice system.

Rolfe.

 

[hodgy]

Really? Where does he say that its in the past? It may be in the process of being addressed but I'd be curious to know which institution claims officially to have addressed the problem.




Do you mean Duwayne Brooks? Ok, but which officer in particular was racist? MacPherson fails to identify any conscious and overt racism in the way he was dealt with but does indicate that his treatment "must reflect unwitting and collective racism" despite not being able to identify any particular officer as being guilty of actual bigotry. Hence the charge of institutional racism.

In fact, throughout the whole inquiry, no officer is positively identified as being overtly and consciously a racist bigot. Which is kind of the crux of the matter. No individual is bad, yet the organisation as a whole is bad. This is indeed a difficult concept to digest.

The fact that its a difficult concept helps to explain why it has only stuck to the police, who are easy to (incorrectly) label as bigots, but it gets a bit harder for the public psyche to attach this label to nurses and firemen and civil servants.

Good point, well brought out sir.

 

[commandlinegamer]

Boris Johnson on the proposal to remove double jeopardy, from 2002:

Of course, it may be right to hound the racist thugs to the end of their days. But with such ambiguity about the safeguards, the change in the law does begin to look as though it could be seriously oppressive. Under the cloak of sanctity provided by the martyrdom of Stephen Lawrence, it may be that the state is being given an important and potentially aggressive new power over the citizen. The harder we cudgel our brains, and try to work out what counts as new evidence, post-acquittal, the more we appreciate the clarity of the rule against double jeopardy.

http://www.spectator.co.uk/spectator/thisweek/10224/part_5/try-try-and-try-again.thtml

Mind you, we did have a Labour government at that point.

 

[LondonJohn]

Boris Johnson on the proposal to remove double jeopardy, from 2002:



http://www.spectator.co.uk/spectator/thisweek/10224/part_5/try-try-and-try-again.thtml

Mind you, we did have a Labour government at that point.

But bear in mind that Johnson is - either through ignorance or deliberately - conveying the impression that "we" decide what constitutes new evidence. In fact, a panel of Appeal Court judges decides whether there is significant new evidence. In doing so, they are bound to use their collective judicial powers to determine two main things: 1) would this new evidence, if it had been available at the first trial, likely have resulted in conviction rather than acquittal; and 2) is a new trial in the public interest, and is it fair and just to all parties (including the suspect(s)).

Time will tell whether Appeal Court judges tend to have a "trigger finger" when it comes to sending acquittal cases back to trial. I suspect, though, that in practice the hurdle for setting aside acquittals will be very high: on top of everything else, judges tend to be somewhat reactionary, and they are not keen on "re-doing" judicial cases unless there is an extremely compelling reason to do so (viz. their reluctance to grant appeals against convictions in the face of strong evidence that they should do so).

 

[Darat]

Hubert Cumberdale - I agree with a lot of your points about the negative aspects of the phrase "institutional racism" however I think it also had positive aspects arising from the phrase itself.

For example the term "institutional knowledge" is a term those running large organisations understand, by using the phrase institutional racism he created a very powerful analogy that helped convey what it meant for those in charge of institutions and how difficult it would be to tackle the problem.

Identifying individual acts of racism by individuals would not have had this powerful effect, leaders would have been able to say they had dealt with the problem by disciplining individuals and so on. By making it clear that it was a problem inherent in the institution made it much harder to ignore the scale of changes that were necessary (and I would say are still necessary).

 

[Darat]

...snip...

If they can be that blatant, about ten minutes after the law has changed, this does not bode well for the future.

...snip...

If the government of the day wants to act in such a way they could always have changed the law since in the end parliament is supreme. Given that it hasn't happened even in the times when we (as a society) had little regard for what we now consider to be human rights I think is strong evidence that it is very unlikely to happen.

We only have to look around the world to see that by the time governance gets to that stage double jeopardy is rather a minor concern since the state is doing whatever it wants regardless of laws and judiciary.

 

[richardm]

judges tend to be somewhat reactionary, and they are not keen on "re-doing" judicial cases unless there is an extremely compelling reason to do so (viz. their reluctance to grant appeals against convictions in the face of strong evidence that they should do so).

I wonder though if judges are biased in the direction of assuming that a conviction is a good thing, and an acquittal is a bad thing. So they might be keener to drag back someone who "escaped justice" for retrial than they are to implicitly criticise their peers by releasing someone who they shouldn't have convicted.

 

[Darat]

I wonder though if judges are biased in the direction of assuming that a conviction is a good thing, and an acquittal is a bad thing. So they might be keener to drag back someone who "escaped justice" for retrial than they are to implicitly criticise their peers by releasing someone who they shouldn't have convicted.

We certainly know at least one senior judge in the past thought that a wrongful conviction was better than the public's confidence in the police being undermined by police corruption being revealed. (Lord Denning & Birmingham six.)

 

[Rolfe]

If the government of the day wants to act in such a way they could always have changed the law since in the end parliament is supreme. Given that it hasn't happened even in the times when we (as a society) had little regard for what we now consider to be human rights I think is strong evidence that it is very unlikely to happen.

We only have to look around the world to see that by the time governance gets to that stage double jeopardy is rather a minor concern since the state is doing whatever it wants regardless of laws and judiciary.

I've just shown you evidence that it is happening, which slightly trumps opinions that it's "very unlikely to happen".

There are always going to be cases where there is a strong opinion that the real culprit was acquitted. And it's always been on the cards that further evidence might later be discovered that would confirm that. Advances in DNA technology have merely increased the likelihood of that, probably for a relatively short and finite time window.

The prohibition on double jeopardy was introduced despite these concerns being quite clearly evident all along, and as far as I can see the concerns haven't gone away and there's no reason to think they might. It's an engraved invitation to any investigation to go trawling for evidence against a specific suspect who was acquitted, to save face and prove that they were right all along.

Maybe the English judiciary are strong-minded enough to toss such exercises in the bin, I don't know. I don't believe the Scottish judiciary have a spine between the lot of them.

What do the Americans think, I wonder? Are they keen to follow suit with a similar law change?

Rolfe.

 

[richardm]

There are always going to be cases where there is a strong opinion that the real culprit was acquitted. And it's always been on the cards that further evidence might later be discovered that would confirm that. Advances in DNA technology have merely increased the likelihood of that, probably for a relatively short and finite time window.

Mm. Thing is though, if new technology becomes available that can prove guilt where it could not be proved before, should we not use that?

I'm thinking for some reason about the arguments about goal-line detection technology. We now have equipment that can prove beyond a shadow of a doubt whether a ball crossed a line or not; this equipment wasn't available in the past when the rules of football were drawn up.

The use of this equipment by referees is rejected by FIFA on the grounds that every match should be refereed the same way whether it be in a park with jumpers for goalposts or at Wembley Stadium.

The upshot is that everyone watching a match on television can clearly see that the goal should - or should not - have been allowed, but the people who are able to do anything about it are not. This makes the whole process a laughing-stock.

Should our judiciary not be able to retry cases on the basis of evidence which could not have been collected at the time of the incident, just because in our mediaeval past it's been wigs for goalposts?

 

[Darat]

I've just shown you evidence that it is happening, which slightly trumps opinions that it's "very unlikely to happen".
...snip...

No you haven't Rolfe - what you have shown is why you have concerns it may be used in the way you fear.

 

[Rolfe]

Mm. Thing is though, if new technology becomes available that can prove guilt where it could not be proved before, should we not use that?

I'm thinking for some reason about the arguments about goal-line detection technology. We now have equipment that can prove beyond a shadow of a doubt whether a ball crossed a line or not; this equipment wasn't available in the past when the rules of football were drawn up.

The use of this equipment by referees is rejected by FIFA on the grounds that every match should be refereed the same way whether it be in a park with jumpers for goalposts or at Wembley Stadium.

The upshot is that everyone watching a match on television can clearly see that the goal should - or should not - have been allowed, but the people who are able to do anything about it are not. This makes the whole process a laughing-stock.

Should our judiciary not be able to retry cases on the basis of evidence which could not have been collected at the time of the incident, just because in our mediaeval past it's been wigs for goalposts?

This isn't a good analogy. What is happening here is more in line with referees going over old footage of games decades in the past and officially changing the result because of what they can now see on the replay.

In principle, it sounds great. My concern is for the unintended consequences. For centuries it has been a legal principle that it was worth a few wrongful acquittals getting under the wire to prevent indefinite pursuit of a suspect by investigators who simply can't accept that they were wrong.

Rolfe.

 

[Rolfe]

No you haven't Rolfe - what you have shown is why you have concerns it may be used in the way you fear.

Prosecutors set to review "double jeopardy" cases

Here we have law officers openly greeting the change in the law as the green light to go back after individual defendants. This isn't talking about open-minded cold case review impartially following the evidence. This is talking about going after specific defendants who have been acquitted, largely because the investigators want to save face retrospectively.

Rolfe.

 

[Information Analyst]

Amanda Knox serves as a reason why an acquitted murder suspect can face a second trial. If someone who was previously found guilty can be found innocent based on new evidence (or more in depth analysis of), why can't someone acquitted be found guilty based on new evidence?

That, I think, is the core issue. We all cheer when new evidence - forensic, eye-witness, or otherwise - shows that an incarcerated person is innocent, and so should be released, and the obvious corollary of this is that new evidence should also be able to be used to convict those who previously escaped justice.

 

[Rolfe]

I don't agree that this is an "obvious corollary". There is good reason for this situation being asymmetrical.

Rolfe.

 

[Information Analyst]

But in the Amanda Knox case, there was not a "second trial": there was an appeal. The fact that an appeal in Italy means that matters of fact are discussed and new evidence may be introduced are immaterial. Double jeopardy (aka as "ne bis in idem") is about that the State may not initiate new proceedings when a verdict is final. And I agree with Rolfe that it's dangerous to introduce double jeopardy.

Except that this is not a case of "the State" - the first prosecution was a private one.

 

[Rolfe]

That was a point I was mulling over. I'd hate to take away the right of the private individual to mount such a prosecution. But look what resulted. The decision of the investigators not to mount a prosecution was vindicated, and it was held that the evidence was not sufficient to convict.

Then the prohibition on double jeopardy kicked in, preventing the prosecuting authorities from proceeding against their suspect once they had acquired the necessary evidence.

It's a hard one.

Rolfe.