FLC040, Double Jeopardy and the Conservative Party, 16th May 2000

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Free Life Commentary,
an independent journal of comment

published on the Internet
Issue Number 40
16th May 2000

Double Jeopardy
and the Conservative Party,

by Sean Gabb

This coming Thursday the 18th May, William Hague, Leader of the British Conservative Party, will give a lecture to the Police Foundation on his party's approach to law and order. In the course of this lecture, he will comment on the issue of double jeopardy, which has come recently under much discussion. If I were he, I would comment as follows:

"Double jeopardy is a rule of our Common Law which prevents a person from being tried more than once for the same or for a substantially similar offence. Undoubtedly, it sometimes allows a criminal to escape his just punishment. Either his lies are believed by a Jury, or the prosecution does not find compelling evidence of guilt until it is too late.

"However, the alternative to this rule, which is to give the prosecution the right of appeal against acquittal, is attended by far greater risks to the administration of justice. In any country, the prosecuting authorities have a vast and permanent advantage over every person accused of a crime. The authorities choose whether, what, when and how charges should be brought against an individual. They have unlimited money and access to the best lawyers. They are usually more intelligent, and always more experienced in the workings of the system, than a defendant. So far as the media and many judges and magistrates—and even many juries—are concerned, there is a certain bias in favour of the authorities; and the evidence of a police officer will often be heard with greater respect than that of a defendant.

"It was to counter these advantages that our ancestors, starting many hundreds of years ago, evolved a systematic bias in favour of the defence in criminal trials. Thus we have habeas corpus, to prevent a person from being held in captivity without charge or conviction. We have the presumption of innocence, so that the whole burden of proof falls on the prosecution, and that any substantial defect in the prosecution case must result in an acquittal. We have trial by jury, to ensure that judgments of guilt or innocence shall be made by a defendant's peers, and not by a judge employed by the Crown. And we have the double jeopardy rule, to ensure that an acquittal is the complete end of a prosecution, and that a defendant need not live under fear of being tried again before a different judge and jury or in a different climate of opinion.

"Such is the wisdom of our ancestors as evidenced through thirty generations, and as revered throughout the whole English-speaking world. As the Leader of the Conservative Party, I consider myself bound by that wisdom. I see no good reason for changing the double jeopardy rule. There is no public emergency that seems to require any departure from the rule. Indeed, in the far greater emergencies of war—in the French war of the early 19th century, for example, and in the two German wars of the 20th century —there was no departure from the rule.

"It has been suggested that the rule should be modified in the gentlest manner—that a case can be reopened only if evidence is later found that would almost certainly have produced a conviction as the earlier trial, and in cases where a conviction would lead to heavy punishment. As I have already stated my presumption in favour of our ancient laws, and denied that any reason can be found for change, I do not need to consider the details of this proposal. I will only say that to depart from a rule is very often to establish a new rule. We have seen this in recent years with the presumption of innocence. The Drug Trafficking Offences Act 1986 reversed the burden of proof as regarded confiscation orders against drug dealers. We were told at the time that this was an exceptional change from the ancient rule and that it would not be allowed to form a precedent. Within two years, the exception was quietly accepted as a new rule; and we are today on the verge of accepting the full American system of civil asset forfeiture—as corrupt and arbitrary a procedure as ever was seen in a civilised country.

"Moreover, while the proposal to change the double jeopardy rule is in form domestic, I cannot help but see a European Union agenda in its substance. My audience will surely know of the proposed Corpus Juris, which is the draft of what may become a single European system of criminal justice. If adopted, this would set up a European Public Prosecutor on the continental inquisitorial model. This person would have an overriding jurisdiction throughout the European Union, to instruct national authorities to issue arrest warrants, to have suspects to other countries in Europe, and to hold them in detention for up to nine months without the need to produce evidence of a crime and with no right to public hearing. Trials are to be held before professional judges sitting alone, 'and not simple jurors or lay magistrates' (Article 26). And so there is no place in this new system of law for either habeas corpus or for trial by jury.

"Nor is there any real place for double jeopardy. Article 27(2) reads: In the case of total or partial acquittal, appeal is... open to the EPP as a prosecuting party.... "Though the Government has promised to resist the imposition of Corpus Juris, it is quietly enacting it into domestic law. This is the reason for the limitations on trial by jury now proposed by Jack Straw. It is the reason for the proposed recognition by the British courts of all European judgments and orders and warrants without prior investigation. It is the reason for the Lord Chancellor's proposal to abolish the ancient system of lay magistrates and to replace them with professionals. The Government has promised to resist Corpus Juris, while quietly removing those ancient constitutional rights most incompatible with its eventual imposition. The questioning of the double jeopardy rule must be seen in this context.

"All this being the case, I promise that the Conservative Party will put up a hard and uncompromising fight against any efforts to change the double jeopardy rule. And if we are unsuccessful in opposition, then we shall, on returning to government, make its restoration a matter of urgency."

That is what I would say in Mr Hague's position. That, I think, is what any English conservative would say in his position. He, however, has decided to call for the rule to be abolished. Or so his publicity people told the newspapers last Sunday. I could almost see the wolfish smile on the Ministers' faces as they denounced him for going further than they intend. Instead of facing a resolute opposition when they introduce their own change in the rule later this year, they will now be able to cry it up as a moderate compromise; and no one of any importance in Parliament will say a word against.

It is at times like this that I despair for the country. We have a Government half Jacobin half traitor, opposed by a Conservative Party under the most childishly stupid leader in its entire history. During the past three years, the Tories have opposed nothing of substance. We have been repeatedly to war for reasons unconnected with our national security. No opposition from the Tories. We live under a mildly Orwellian tyranny, where what used to be the nuttier whims of local government officers have become the law of the land. No opposition from the Tories. The Government has announced that it will use the security services to destroy political movements that it finds offensive. No opposition from the Tories. The Representation of the People Act 1999 removes most of the safeguards against electoral fraud we have built up over the past hundred and fifty years, so that the result of any referendum or general election can now be rigged in favour of the Labour Party. No opposition from the Tories. They have made an immense noise about the age of consent for homosexual intercourse and the teaching of homosexuality in state schools—as if these things really mattered. But they have not opposed the Government on any important issue.

Mr Hague does sometimes go through the motions of opposition, but everything he says sounds like a cheap insurance policy. Every tempting main clause is balanced by a mass of exclusions or by a lack of means of enforcement. He wants to keep the Pound—for five years. He wants no more treaties of European integration—but ignores that nothing more is needed to bring on a United States of Europe. He "sympathises" with the outcry over the conviction of Tony Martin, imprisoned for killing a burglar—but carefully avoids endorsing anything as traditional or popular as the right to defend life and property with lethal force.

There is something deeply cynical in this pretence of opposition. Time was when systematic dishonesty worked for the Conservative Party. Its leaders used regularly to play at articulating popular discontents, and then sit back while the votes flooded in—and then do nothing in government. The problem for the Tory Party is that dishonesty no longer works. The various elections at the beginning of this month show that. We have an atrociously bad Government approaching a general election. Under normal circumstances, Labour would have been slaughtered, losing a swathe of authorities to the Conservatives. What the Conservatives in fact managed was a half decent performance in the council elections and a by-election lost to the Liberal Democrats—only the second loss of its kind while in opposition, I am told, in the past hundred years. It is certain that many voters, goaded by misgovernment, are willing to hold their noses and vote for a change from Labour—even a change to the Quisling Right. But it does not now seem likely that they will vote Conservative in enough numbers to drive Labour from power at the next election. Most discontent is expressed by not voting at all.

Of course, it can be said that Mr Hague has now stopped pretending to oppose, and is making a big effort to pick up support across the country. Though feeble and therefore suspect on first appearance, his comments on Tony Martin and bogus asylum seekers do go beyond the normal bounds of political discourse. Some of the Labour rage at his recent comments does reflect a fear that he might be on to something. His problem, however, is that his comments show as little understanding of these issues as a drunk at a bus stop might have. He has no idea of how to maintain order and freedom within a constitutional framework. A true conservative would reach out to the people and explain how the troubles we now face are the natural effect of departing from our ancient ways. He would argue that the first defence against crime must come from an armed citizenry, and then from a system of laws that imposes real punishments for real crimes. He would argue against the mass of "victimless crimes" that now waste police time and blight innocent lives, and against the horde of social workers and probation officers who serve only to corrupt the administration of justice. Having done this, he would cherish the constitutional freedoms and privileges that we inherit from the past and that have been won and defended with so much blood.

But that would mean having a conservative in charge of the Conservative Party. Luckily for the police state fascists who now rule this country, there is only William Hague to worry about—and why overly worry about a man who is so busy in their interest?