Two arrests - Justice for Stephen Lawrence?

[Information Analyst]

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.

IIRC, Brooks feels he was treated as a potential suspect at worst, or at best that the initial police reaction was that he and Stephen "must" have done something to merit being attacked in the first place. There seemed to be an assumption - conscious or subconscious - that them being black youths made them "natural suspects" to the police.

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.

To the genral public, perhaps, but I can assure you that in the NHS I have seen policy documentation which in true sack-cloth fashion admits particular parts of it potentially or actually are "institutionally racist" by default.

 

[Darat]

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.

I've highlighted the part of your post that is not factual. The highlighted part is your speculations not facts, lets not get confused about the difference between facts and our personal speculations, that's the province of "pseudo-sceptics" isn't it?

Also of course part of your speculation is based on someone else's speculations so it becomes even more tenuous! For example from your article we don't know what cases are going to even be reviewed so how could you possible know that "...because the investigators want to save face retrospectively..." -

From your article:

..Officials declined to specify which cases could be among those coming back to court, but they are likely to include...."
​

In the above I have highlighted the factual part, the rest is speculation by the journalist and you have used their speculation as the basis of your speculations.

To address the part of your post based on the facts - I can't see why past cases should not be reviewed, surely that is one of the ideas of making such a change in the first place?

I know that some people are concerned about the apparent "retrospective" application of this law but it does not alter the criminality of past events or even the punishment so people are not going to be facing prosecutions for something that wasn't a crime 20 years ago.

Indeed look at the case that this thread started with, the sentences passed had to still be the sentences that would have been in force at the time, so they had to be sentenced as the minors they were at the time of the crime not the adults they are today.

 

[joolz]

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.

I see your point and agree we should be concerned, but if a proven murderer/rapist gets convicted on solid new evidence, eg improved DNA tests, and is, therefore, not free to murder/rape again then I'll tolerate it if some bad investigators want to save face in the process.

The article does say 'most notorious unsolved murders' and 'that a second trial can take place where “compelling new evidence emerges”' and that ‘the principle of protecting individuals against the state pursuing them repeatedly is fundamental'.

If they stick to serious crimes where there is compelling new evidence then I have no problem with it, but I do understand, as you say, that's no guarantee against abuse at some point, especially with Mulholland around. I'd still rather see a guilty person go free than risk wrongful imprisonment, but, when we have a chance, with compelling new evidence (and only with it), to deal with someone who is a danger to public safety, then I think we have to take it.

The article also states that ‘a second trial may also be allowed to proceed where there is evidence that the first trial was “tainted”. An example might be where a witness was found to have been intimidated into supporting the accused.’. Well that definition certainly includes al-Megrahi’s trial but, alas, probably too late for him to be legally innocent before he dies.

 

[Rolfe]

From your article:

..Officials declined to specify which cases could be among those coming back to court, but they are likely to include...."
​

In the above I have highlighted the factual part, the rest is speculation by the journalist and you have used their speculation as the basis of your speculations.

That's very true, and I took comfort from that when I read the article originally. The problem is that Mulholland is explicitly saying that he will go after Fhimah and others - not because new evidence has emerged, but because he wants to sound tough by vowing to go find some.

I suppose it's early days and we'll have to see how it shakes down. If it does indeed play out the way joolz's post outlines, then it may all work out. At the moment though, I'm sceptical, mainly because of Mulholland's rhetoric.

To look at it another way, suppose you were, through no fault of your own, the target of a single-minded campaign by police to pin a crime on you that you had not committed. Think Chris Jefferies, for example, if the cops had developed "married to the vein" behaviour in his case. How reassured would you be by the safeguards?

Rolfe.

 

[Darat]

That's very true, and I took comfort from that when I read the article originally. The problem is that Mulholland is explicitly saying that he will go after Fhimah and others - not because new evidence has emerged, but because he wants to sound tough by vowing to go find some.

I suppose it's early days and we'll have to see how it shakes down. If it does indeed play out the way joolz's post outlines, then it may all work out. At the moment though, I'm sceptical, mainly because of Mulholland's rhetoric.

To look at it another way, suppose you were, through no fault of your own, the target of a single-minded campaign by police to pin a crime on you that you had not committed. Think Chris Jefferies, for example, if the cops had developed "married to the vein" behaviour in his case. How reassured would you be by the safeguards?

Rolfe.

Rolfe - I do share your concerns, I've also been very uneasy about the dropping of the idea of double jeopardy even in limited cases because of how politicians and others could try to use it. But I think the risks are very much reduced in our shared and separate judicial system because of the way it has been drafted (that's the Eng & W version not read up on the Scottish version yet to see if it is significantly different - I suspect it isn't) with safeguards and also because we don't have the likes of "DAs" that are seeking public re-election so there isn't the direct benefit that some systems would have for politicians. That's why I think if we get to the stage that our politicians for political reasons can have people re-tried and re-tried things will be so bad that it will be one of our lesser worries!

 

[Rolfe]

I think the two legislations are very similar - I'm not aware of any important distinctions in the new laws. It may be that practice is different, though.

I haven't heard the sabre-rattling from England that has been evident in Scotland. I also know that England had its big scandals decades ago with the Birmingham Six and related cases, and seems to have cleaned up its act quite a lot since. I was very heartened by the way the police didn't hold on to Chris Jefferies when they couldn't make a case against him. (Barry George and Sion Jenkins might not agree with me, but on the other hand both of these are free men now.)

Scotland has not cleaned up its act. There are seething scandals there, epitomised by the Shirley McKie affair, and the related wrongful conviction of David Asbury, and of course the howling scandal of the Camp Zeist trial which the authorities are still trying to defend. That the LA's first act on the passing of the new law was to state an explicit intention to trawl Libya for evidence against the acquitted Zeist defendant against whom there was never a shred of evidence in the first place, was quite horrifying to me. Especially in the context of such evidence being far too easy to fabricate, and the new Libyan regime having every motive for doing just that.

So maybe you have better reason to trust your law enforcement. Me, I don't trust our bastards an inch.

Rolfe.

 

[LondonJohn]

IIRC, Brooks feels he was treated as a potential suspect at worst, or at best that the initial police reaction was that he and Stephen "must" have done something to merit being attacked in the first place. There seemed to be an assumption - conscious or subconscious - that them being black youths made them "natural suspects" to the police.

Agreed. And there was also almost certainly a level of assumption among the investigating detectives that the true perpetrators were black youths from a rival gang (alongside the assumption that Lawrence and Brooks - despite family/friend assertions to the contrary - were in fact members of a gang), and that this was therefore "black-on-black" inter-gang rivalry in action. Up until Operation Trident was set up (as one of the beneficial outcomes of the Macpherson Report), the police often showed a remarkable and underlyingly-racist approach to black-on-black gang crime, often seeming to adopt a laissez-faire position.

To the genral public, perhaps, but I can assure you that in the NHS I have seen policy documentation which in true sack-cloth fashion admits particular parts of it potentially or actually are "institutionally racist" by default.

I suspect that it may have become fashionable after the publication of the Macpherson Report for certain organisations with left-leaning or libertarian-leaning leaderships to engage in "mea culpa" handwringing in regard to racism and other similar behaviours. But whether such headline admissions have been followed by active steps to address and remedy such behaviours is, of course, a different matter altogether...

 

[joolz]

<snip>
To look at it another way, suppose you were, through no fault of your own, the target of a single-minded campaign by police to pin a crime on you that you had not committed. Think Chris Jefferies, for example, if the cops had developed "married to the vein" behaviour in his case. How reassured would you be by the safeguards?

Rolfe.

I think Jefferies was tried and convicted by the UK gutter press, but hopefully a jury would see through the BS. As I said, we need to watch how this goes and raise merry hell with the politicians if they've got it wrong.

You are right, malicious prosecutions happen, we need to be alert. I was on a jury where the 3 cops had targeted a guy with trumped up drug dealing charges that led to the case going to the High Court (ie longer term of imprisonment). Unfortunately many of the jurors seemed to think that police are all honest (?!?!), but there were two of us who went piece by piece through the lies the police told and eventually convinced the others that when the police lie, you cannot convict someone. We only returned a guilty verdict on a minor cannabis charge, and it turned out that his previous convictions were minor too, not major drug dealing.

Having said that, not every jury would see police 'officers' as blatantly malicious, lying and inept as we did*, but you have to hope that people making the decisions will make the right call. Even the judge in our case tore the police apart before sentencing. Maybe knowing that more cases may come back to haunt them will encourage them to keep on the right track. Here’s hoping anyway. There must be a lot of other cases like the one I was on, it wasn't unique, but there are a lot of good people out there who care about people getting a fair trial.


*All 3 cops said they hid in a cupboard to watch the door of the guy's flat and this, I swear, these were sample statements from their testimony:

Plod 1
I couldn't see out from the cupboard.
We took a battering ram with us to knock the door in.
Plod 2
We could all see out from the cupboard at the same time.
We were planning just to kick the door in
Plod 3
We took turns looking out from the cupboard.
We took an axe with us to smash the door in.

 

[LondonJohn]

Rolfe - I do share your concerns, I've also been very uneasy about the dropping of the idea of double jeopardy even in limited cases because of how politicians and others could try to use it. But I think the risks are very much reduced in our shared and separate judicial system because of the way it has been drafted (that's the Eng & W version not read up on the Scottish version yet to see if it is significantly different - I suspect it isn't) with safeguards and also because we don't have the likes of "DAs" that are seeking public re-election so there isn't the direct benefit that some systems would have for politicians. That's why I think if we get to the stage that our politicians for political reasons can have people re-tried and re-tried things will be so bad that it will be one of our lesser worries!

Under the current legislation on double jeopardy, unless it's possible for politicians to exert influence on the judiciary (and to do so would be to break one of the fundamental principles of modern democracy), what you're suggesting simply isn't possible. I accept that Appeal Court judges can - and do - make dreadful decisions sometimes. But, on the whole, this body of the judiciary is a wise, rational and utterly independent group, who normally make the right decisions for the right reasons. What's more, I suspect that if Appeal Court judges suspected that previously-acquitted individuals were being brought before them for retrial consideration owing to purely political motives, they might actively speak out against such tactics - as well as turning down the appeal for a retrial in the process.

It clearly bears saying again: under current legislation, the double jeopardy rule can only be circumvented if - and only if - a panel of Appeal Court judges decides either that a) there is very significant new evidence available, which was not available at the original trial, and which (in the judges' opinion) had a strong likelihood of resulting in a conviction if it had been available at the original trial, or b) there was a proven case of improper activity affecting the original trial (e.g. if there was proven witness-tampering, or proven suppression of evidence, or proven police misconduct in favour of the accused).

 

[Rolfe]

I think Jefferies was tried and convicted by the UK gutter press, but hopefully a jury would see through the BS. As I said, we need to watch how this goes and raise merry hell with the politicians if they've got it wrong.

So was Sion Jenkins, and he wasn't so lucky. Nor was he lucky enough to have jurors like you and your colleague. Far too many people believe the cops wouldn't prosecute someone if they hadn't done it.

Rolfe.

 

[Rolfe]

Under the current legislation on double jeopardy, unless it's possible for politicians to exert influence on the judiciary (and to do so would be to break one of the fundamental principles of modern democracy), what you're suggesting simply isn't possible. [....]

Must be different in England. The LA is blatantly political.

Rolfe.

 

[LondonJohn]

That's very true, and I took comfort from that when I read the article originally. The problem is that Mulholland is explicitly saying that he will go after Fhimah and others - not because new evidence has emerged, but because he wants to sound tough by vowing to go find some.

I suppose it's early days and we'll have to see how it shakes down. If it does indeed play out the way joolz's post outlines, then it may all work out. At the moment though, I'm sceptical, mainly because of Mulholland's rhetoric.

To look at it another way, suppose you were, through no fault of your own, the target of a single-minded campaign by police to pin a crime on you that you had not committed. Think Chris Jefferies, for example, if the cops had developed "married to the vein" behaviour in his case. How reassured would you be by the safeguards?

Rolfe.

The Chris Jefferies example is different, however. One would hope that if his case had somehow made its way all the way to a trial, a criminal court would have judged the evidence available and would have easily concluded that there was no way that the Crown could prove his guilt beyond a reasonable doubt (and therefore he would have been acquitted as an innocent man). That's the ultimate safeguard, and there are also supposed to be various checks along the route: even if the police are fixated on a suspect, the CPS (or Procurator Fiscal in Scotland) are supposed to conduct an independent assessment of the evidence, and only to produce to charging if they feel there is a reasonable chance of conviction and if charges are in the public interest. Furthermore, after being charged, a suspect will be arraigned in a criminal court, at which a judge will also look at the evidence and hear submissions from prosecution and defence, and will decide whether the case should proceed to trial.

But supposing for one moment that Jefferies had actually been charged and tried, and acquitted, and had the police/prosecutors refused to let the matter lie there, then they would have had to persuade a panel of Appeal Court judges that a new trial was warranted. And to do that, they would have had to produce very significant new evidence that they could show was not available at the time of the first trial, or they would have to produce evidence that Jefferies (or someone acting for him) had perverted the first trial in a material fashion.

I simply think there's no way - under the legislation as it currently stands - for the process either to be hijacked by partisan law enforcement agencies or to be abused for political ends.

 

[LondonJohn]

Must be different in England. The LA is blatantly political.

Rolfe.

Well, this grey area also exists in England/Wales law, via the positions of the Lord Chancellor and Attorney General - both of which are positions which carry legislative and executive political power, as well as being part of the judiciary. But, as with the LA in Scotland, these individuals cannot themselves decide to bring prosecutions (apart from in a small number of highly-specialise cases). The role of Lord Chancellor in England/Wales was scaled back considerably a few years ago to remove all judicial functions: formerly, the Lord Chancellor had the right to sit as a judge, which was clearly contrary to the separation of the executive/legislature and judiciary.

Therefore, although the LA in Scotland may express a desire to see a certain individual re-prosecuted, is it actually his decision whether or not such a re-prosecution takes place? If so, then the role of LA seriously needs reform - it's totally unacceptable for someone with executive/legislative power to be the party bringing prosecutions against private individuals or private corporations.

 

[Rolfe]

I ask myself, what were the investigating authorities doing with all these unsolved crimes, after the initial acquittals?

What I would hope they were doing was re-examining the evidence with an open mind. This obviously happens sometimes - look at the Damilola Taylor case, where exactly that led to the real murderers being identified after the wrong people were originally charged.

Maybe when they do that, they find more evidence implicating the original suspects. In that case, I can see all the good arguments for allowing a second bite at the cherry. But I don't think that's what's been happening.

I think a lot of cases have been left open, because the cops are simply convinced they were right first time. They never looked for anyone else after the original acquittal. But hey, now the law has changed, they have a laundry list of people they want to conduct suspect-centred investigations against.

This is what I really don't like. And now the law has changed, it's going to make it even easier for investigators to cling on to their original hypothesis and refuse to reconsider. We can see in this very forum how reluctant many people are to change their minds once they hace arrived at a theory, no matter how comprehensively that theory is shredded. The idea that cops are allowed to do that, and carry on to the end of time until they get the result they want, doesn't fill me with joy.

It may be the checks and balances will work out. But if you'd been watching the legal machinations in Scotland over recent years, you'd be dubious too.

Rolfe.

 

[Rolfe]

The Chris Jefferies example is different, however. [....]

It's different because the police behaved properly. Go back and look at what happened to Sion Jenkins, paying particular attention to the input of David Southall.

Jenkins was actually convicted. But if he had been acquitted, as he should have been? This is an engraved invitation for the prosecuting authorities to make someone's life hell forever more in that situation.

Rolfe.

 

[Darat]

Under the current legislation on double jeopardy, unless it's possible for politicians to exert influence on the judiciary (and to do so would be to break one of the fundamental principles of modern democracy), what you're suggesting simply isn't possible. ...snip...

You seem to have missed my last sentence: That's why I think if we get to the stage that our politicians for political reasons can have people re-tried and re-tried things will be so bad that it will be one of our lesser worries!

 

[Darat]

...snip...This is an engraved invitation for the prosecuting authorities to make someone's life hell forever more in that situation.

Rolfe.

How? They don't direct investigations, that is the police's role.

 

[LondonJohn]

How? They don't direct investigations, that is the police's role.

It depends whether we're defining "making life hell" as the continued conducting of investigations (which, as you say, is the police's remit), or the continued issuing of criminal charges for the same offences (which has to be initiated by prosecuting authorities).

One of the ongoing anomalies of the law enforcement system is that it's perfectly lawful for the police to carry on any investigation they see fit, for as long as they like, provided they do not employ tactics such as surveillance, wiretapping, postal/internet interception etc, which require justification and senior-level authorisation or court orders. Technically, there's nothing whatsoever - outside of budgetary or political considerations - to prevent the police from carrying on an ongoing investigation into the Acourt brothers, Sion Jenkins, Fhimah, the Guildford Four, or anyone whatsoever for that matter. This could involve questioning of the individuals (although not under compulsion), questioning of friends/colleagues/family (likewise, not compulsory), monitoring of addresses, known associates, affiliations etc.

 

[Rolfe]

How? They don't direct investigations, that is the police's role.

Poor wording maybe, but it's a nice little club anyway. Sutherland's Law was fiction.

Rolfe.

 

[LondonJohn]

You seem to have missed my last sentence: That's why I think if we get to the stage that our politicians for political reasons can have people re-tried and re-tried things will be so bad that it will be one of our lesser worries!

Fair enough, but you did kick off that post by writing

I've also been very uneasy about the dropping of the idea of double jeopardy even in limited cases because of how politicians and others could try to use it.

So it seemed a little equivocal on this issue to me.