Matters Arising From The Death of Stephen Lawrence

[anglolawyer]

There's very little doubt that he did it, though. Why should he avoid conviction because of a dodgy trial?
The original foreman seemed to have a problem with the police and the judge ruled out evidence that placed him at the scene of the crime.
He also lied about his shoe size and the investigators were silly enough to take him at his word, somewhat ridiculously.

He picked up two convictions for harassing women after the first trial and his ex-fiance accused him of threatening to kill her and admitting to the murder via text, which the police couldn't use at the time as he'd already been tried.
It was later used as part of the evidence for retrying the case.

Why should somebody else have to get killed for him to be locked up?

This argument can be made against any rule whose operation might in some cases result in guilty people going free. I have no reason to doubt your assessment of the case you referenced but surely you can see the inevitability of innocent people finding themselves on the receiving end of multiple prosecutions.

In the case of a criminal trial a solicitor and barrister will be provided by the state. (Of course being wealthy can still be an advantage.)

I would not be too sure about this the way things are going. And I am being perfectly serious in saying that.

 

[anglolawyer]

There is no doubt that genuinely guilty people have been acquitted, and a second trial handled better and with better attention to the evidence may produce a just result. A lot of people are pointing that out and it's true. That's the upside of this.

The downside is that the possibility of getting more than one crack at it may encourage a less than completely thorough approach the first time. As you say, it allows the prosecution to see the defence and take evasive action the second time. And it allows the state to pursue an individual maliciously and repeatedly.

It also introduces the danger that after an acquittal the police will not do what they should do, which is re-examine the case from the ground up and see if they have evidence pointing to someone else who can be charged (as was done after the acquittals of the first people charged for the murder of Damilola Taylor), but might rather continue to obsess over their original case trying to find some more evidence.

I suspect that if double jeopardy had been permitted at the time of the original Damilola Taylor acquittal, the real murderers might never have been found. We might still be witnessing the unedifying spectacle of the police announcing that they weren't looking for anyone else and setting out to try the first lot of people again.

And as I said, look how the mere threat has been used to terrify Lamin Fhimah. They've got nothing on him, and if pressed will say that they have no immediate plans to charge him for a second time, but there has been a continual drip drip of stories indicating that this is what they want to do. For a time, every tabloid story about the abolition of the prohibition on double jeopardy was headed up with the assertion "man acquitted of Lockerbie bombing could be re-tried". This is oppressive.
Rolfe.

This is the problem with the abolition of (the rule against) double jeopardy. The state is in a position of immense power to begin with. It has massive resources to bring against the individual. There must be finality in litigation, civil or criminal. The rule against DJ worked well enough for hundreds of years. Then along came one headline-making case and, rather than address the problems thrown up by it (racism and corruption within the police) we charged off and destroyed an important bulwark against state power.

I don't want this mighty thing looming over me every second of my life. I (notionally) agreed to get together with you guys because living as a savage in the forest was getting on my tits somewhat. So, great, we get peace and order, we all agree to drive on the left (or the wrong side - it doesn't matter so long as we agree) there is more trade etc etc etc but where did I say I want the state actually in my pocket regulating every breath and step I take? There have to be limits and it is an incident of that fact that there will be bad things that happen that no one can do anything about, including guilty people walking free because forensic science isn't quite there yet. Tough. Guilty people already walk free because of the burden of proof, the right to silence, rules against hearsay and a thousand other things.

The state is always trying to abolish or curtail these rights. It doesn't matter which party is in office, it's always the same. We should be on our guard.

 

[Darat]

...snip...

The state is always trying to abolish or curtail these rights. It doesn't matter which party is in office, it's always the same. We should be on our guard.

You mean apart from when it is extending such rights?

Of course we have to be vigilant of changes of this type (especially because of unforeseen consequences) but also simply pulling out the bogeyman of "the state" is not really an argument as to why a particular change is good, bad or neutral.

 

[Giz]

This is the problem with the abolition of (the rule against) double jeopardy. The state is in a position of immense power to begin with. It has massive resources to bring against the individual. There must be finality in litigation, civil or criminal. The rule against DJ worked well enough for hundreds of years. Then along came one headline-making case and, rather than address the problems thrown up by it (racism and corruption within the police) we charged off and destroyed an important bulwark against state power.

Exactly. For centuries we had the rule against double jeopardy as an essential part of our liberties and then one disappointing verdict was enough to scrap the principle.

The protection afforded by an unwritten constitution isn't worth the paper its written on.

 

[Darat]

Exactly. For centuries we had the rule against double jeopardy as an essential part of our liberties and then one disappointing verdict was enough to scrap the principle.

Something may have been needed centuries ago, and it might have been a fantastic idea back then. But society and the world does not standstill, what might have been needed and was good for centuries may no longer be needed or good.

On the principle of double jeopardy, I vacillate between seeing the benefits of removing the protection and deciding it's a good and needed change and then sometimes thinking it should not be removed.

Reading when it has been used since the changes and how the courts have been interpreting the changes I am being swayed more and more that it was a needed change and to the benefit of society.

The protection afforded by an unwritten constitution isn't worth the paper its written on.

It's as good as the protection offered by any "written down" constitution. I.e. as long as it is what people want that is what they support.

 

[anglolawyer]

You mean apart from when it is extending such rights?

Of course we have to be vigilant of changes of this type (especially because of unforeseen consequences) but also simply pulling out the bogeyman of "the state" is not really an argument as to why a particular change is good, bad or neutral.

When was the last of these extensions of rights? I will give you the Human Rights Act but that's it (all it says is we have a right to a fair trial - we had that before). The rights of defendants are just about always being curtailed in the criminal sphere. Judges complain frequently at the flood of populist criminal justice legislation that parliament spews out mainly to give an incumbent justice minister a few headlines. There is almost always existing legislation that is not being enforced which could be used to address whatever this week's headline are carping on about.

In my thirty years or so we have lost:

1 the right not have adverse inferences drawn from silence
2 the right of peremptory challenge of jurors
3 the right not to be tried twice for the same crime
4 proper defence funding (did you know that legal aid is now no longer available to pay for the cost of perusing unused material? Have you any idea what that means?)

That's off the top of my head. The last one is lethal. I am not a criminal lawyer (much). I bet that list could be augmented appreciably.

 

[Darat]

When was the last of these extensions of rights?

Tomorrow - and I am not being facetious!

I will give you the Human Rights Act but that's it (all it says is we have a right to a fair trial - we had that before).

The Human rights act didn't do that, we already had those rights, it just meant that UK judges could use those principles in making calls in cases in the UK rather them having to be tested at the ECHR. But I would say that it does in effect give us more access to the rights we want.

The rights of defendants are just about always being curtailed in the criminal sphere. Judges complain frequently at the flood of populist criminal justice legislation that parliament spews out mainly to give an incumbent justice minister a few headlines. There is almost always existing legislation that is not being enforced which could be used to address whatever this week's headline are carping on about.

You'll not find me disagreeing with that.


In my thirty years or so we have lost:

1 the right not have adverse inferences drawn from silence

Which in a jury trial is something that we never actually had.

2 the right of peremptory challenge of jurors

Really? If so I'm pleased that was dropped.

3 the right not to be tried twice for the same crime

As I say I vacillate, but more and more find myself on the side of this being a good change.

4 proper defence funding (did you know that legal aid is now no longer available to pay for the cost of perusing unused material? Have you any idea what that means?) That's off the top of my head. The last one is lethal. I am not a criminal lawyer (much). I bet that list could be augmented appreciably.

And I totally agree with the highlighted part - it is just yet another thing that folk just don't seem to understand the consequences of, like the Tories and LibDems dismantling of public healthcare in England. It is an utter disgrace and I think the biggest blow to the expectations of a just system in decades.

 

[Wudang]

And I totally agree with the highlighted part - it is just yet another thing that folk just don't seem to understand the consequences of, like the Tories and LibDems dismantling of public healthcare in England. It is an utter disgrace and I think the biggest blow to the expectations of a just system in decades.

If you haven't read the Barrister's Wife blog points out some of the potential miscarriages that were averted by legal aid
Exhibit A - there are others http://abarristerswife.wordpress.com/2013/05/05/exhibit-a-the-child-pornographer/

 

[anglolawyer]

Darat

Where do you get the idea from that there was never a right not to have adverse inferences drawn in a jury trial? The wording of the caution has changed. It used to be, more or less, 'you have the right to remain silent but anything you do say will be taken down and may be used in evidence'. Now it's

You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.’

What that means is the exercise of the right of silence, the fact of which formerly could not be disclosed to the jury, now carries a risk of prejudice it lacked before. What the defence side got in return were taped interviews in the company of a lawyer. A strange deal when you think about it. It's like saying, 'alright, now that we (the police) can't fit you up so easily, you can't have an unqualified right to silence anymore'.

Not sure I understand what you are saying about the human rights act either but let's not bother with that one.

 

[Dissolution]

IANAL, but how does the wording of the caution change anything in the court, exactly?
Is there any practical difference? Are the prosecution allowed to bring up your silence when they weren't before, for example?

 

[anglolawyer]

IANAL, but how does the wording of the caution change anything in the court, exactly?
Is there any practical difference? Are the prosecution allowed to bring up your silence when they weren't before, for example?

Without checking, in the good old days the fact you maintained silence at the police station, say, could not be mentioned to the jury. Now, in the given circumstance (you raise at trail a defence you could gave brought up when first questioned) it can.

 

[Darat]

Darat

Where do you get the idea from that there was never a right not to have adverse inferences drawn in a jury trial? The wording of the caution has changed. It used to be, more or less, 'you have the right to remain silent but anything you do say will be taken down and may be used in evidence'. Now it's


What that means is the exercise of the right of silence, the fact of which formerly could not be disclosed to the jury, now carries a risk of prejudice it lacked before. What the defence side got in return were taped interviews in the company of a lawyer. A strange deal when you think about it. It's like saying, 'alright, now that we (the police) can't fit you up so easily, you can't have an unqualified right to silence anymore'.

Not sure I understand what you are saying about the human rights act either but let's not bother with that one.

I was talking about in the real world that juries live in, do you really think someone on the jury wouldn't have said "why hasn't she said anything" when discussing the case? I'm sure that many a jury has inferred quite a bit from the defendant or witnesses apparently not having said anything. I think this is one of those ideas that is well intentioned but ignores human behaviour.

 

[anglolawyer]

I was talking about in the real world that juries live in, do you really think someone on the jury wouldn't have said "why hasn't she said anything" when discussing the case? I'm sure that many a jury has inferred quite a bit from the defendant or witnesses apparently not having said anything. I think this is one of those ideas that is well intentioned but ignores human behaviour.

You are not getting it. The jury will have inferred nothing because they will not have been told the defendant said nothing (in the old days). They will not know that, when interviewed, the defendant elected to remain silent. I very much doubt (having sat through numerous crown court trials) the juries had any clue about such things. That's precisely why, in those days, lawyers could not sit on juries.

 

[Travis]

I don't think that's true. What sometimes happens is that someone will be tried on federal charges after being acquitted on state charges, or the same facts and evidence will be used to support different charges, or an appeals court will throw out a conviction and order a new trial. But if OJ stood on the LA County courthouse steps and said "I did it, nyah, nyah," he couldn't be arrested for murder.
http://www.nolo.com/dictionary/double-jeopardy-term.html

Well, I had a lawyer explain to me once that you do not confess to a crime after a not-guilty verdict unless you want to deal with a new trial. They explained that double jeopardy is not absolute. There are exceptions though they rarely come into play.

 

[Information Analyst]

Without checking, in the good old days the fact you maintained silence at the police station, say, could not be mentioned to the jury. Now, in the given circumstance (you raise at trail a defence you could gave brought up when first questioned) it can.

But the caution is about undisclosed facts/details, not saying nothing. Maybe I'm being naive, but I thought it was more along the lines of the prosecution being able to call into question an alibi pulled out the hat at a later stage on the grounds that the suspect never mentioned it at the time they were arrested (although, of course, I can think of a lot of reasons why a suspect wouldn't want to immediately name an alibi witness, e.g. for fear the police would lean on them).

 

[anglolawyer]

But the caution is about undisclosed facts/details, not saying nothing.

Huh? Could you run that past me again? The caution, which must be administered as soon as the cops form a suspicion against an individual, is intended to bring to the suspect's attention his right to remain silent and the possible consequences of its exercise or non-exercise.

Maybe I'm being naive, but I thought it was more along the lines of the prosecution being able to call into question an alibi pulled out the hat at a later stage on the grounds that the suspect never mentioned it at the time they were arrested (although, of course, I can think of a lot of reasons why a suspect wouldn't want to immediately name an alibi witness, e.g. for fear the police would lean on them).

Right, times have changed there too. In the good old days you could reserve your defence until trial and then spring it, with one exception - the alibi. If you were claiming an alibi you had to give particulars of it in advance of the trial so the cops could investigate it. If you failed to comply you lost the alibi defence.

Nowadays, the defence is required to serve advance particulars of its defence, whatever it is. Yet another erosion of the defendant's rights to add to the list I rattled off upthread. I don't lose much sleep over this one but it all adds up. I haven't looked it up but I imagine that, if the particulars of defence includes an alibi, there will probably be a requirement to go into more detail than other defences might require.

The caution is something entirely different though.