An opinion piece from Bermuda about double jeopardy

[Semicolon]

Opinion: ‘Double Jeopardy’ Needs More Reform

The recent debacle over the barring of a Canadian film-crew from filming on the island has helped to shed light on the need for further legal reforms in Bermuda.

In particular, it’s time to take another look at the issue of ‘double jeopardy’ – where individuals cannot be tried for the same offence again after being acquitted.

To the former PLP Government’s credit, they amended the Court of Appeals Act in 2010 to allow for retrials in cases of murder or premeditated murder. And to the then Opposition OBA’s credit, they previously called for this amendment to go further, to be retrospective.

The PLP at the time voiced concern about such retroactivity being in contradiction to the Constitution, as well as voicing concerns about the process being open to abuse.

I think it’s time to revisit the issue of double jeopardy – especially in light of additional experience in the English judicial system in retrying old cases [reformed in 2003], with the Stephen Lawrence murder being a clear example.

We also now have the experience of the Scottish reforms, which came into force in 2011, which allowed for exceptions to the double jeopardy rule within Scottish law.

While the Court of Appeal Amendment Act 2010 allowed for retrials in the case of murder and premeditated murder, I believe we should also add rape, attempted rape and fraud [with our financial fraud laws needing serious overhauling too].

These are all crimes where novel evidence may come to light after the suspects have been acquitted.

This is particularly important in the case of sexual assault, where victims may feel confined to their homes or otherwise traumatised at the knowledge that their attacker is still out there – and in as small a community as Bermuda, this is potentially particularly debilitating for victims.

While it would not be advisable to completely discard the principle of double jeopardy – which is there to ensure that the State cannot harass citizens and take advantage of its superior resources, ad infinitum – I do think we should allow that, when novel evidence is presented, an appeal to the Court can be made to waive the double jeopardy rule in the case of such crimes noted above.

Certain criteria can be decided to determine at what point any new evidence warrants an exception to the double jeopardy rule. The nature of this new evidence may be a confession or new forensic evidence. This new evidence could be considered by appeal to the Court for consideration on whether to waive the double jeopardy rule – as we have already following the 2010 Amendment.

A caveat can be made to ensure that this exception can only be made once per case, thus reducing the threat of unlimited harassment of individuals.

There should be no statute of limitations on this – the policy should be made completely retrospective.

While there are valid concerns about making such exceptions retrospectively, it’s my view that public confidence in the justice system is weakened when compelling new evidence emerges and it is not possible to hold a new trial.

Cases that will be affected by the exception to the double jeopardy rule are likely to be rare, but they are extremely important in maintaining public confidence in the justice system and ensuring that justice is served. Despite the concerns about retrospectivity, I believe it is more important that a historical case be retried should compelling new evidence arise.

In a community as small as ours there is a fine balance to walk between securing justice for victims and protecting the rights of the accused. However, when new evidence comes to light that can allow us to realise justice then that is what we should do.

Source

The article applies to Bermuda, but it illustrates the trend across Commonwealth countries of rolling back protections against double jeopardy. Thoughts?

[odeon]

Undecided. While new evidence might help solve old cases, why would round two be more reliable than round one? Consider the Amanda Knox case where the handling of the first trial was so messed up that a second should have been out of the question, regardless of any new evidence, let alone the lack of new evidence.

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Like many things that might sound good in some cases but if the law is changed it will not be used in only those cases but at the discretion of the state and could easily be used to punish people though endless legal battles that they can not convict

[Semicolon]

Like many things that might sound good in some cases if the law is changed it will not be used in only those cases but at the discretion of the state and could easily be used to punish people though endless legal battles that they can not convict

I think it's disturbing, too.

[odeon]

At the same time, I'm pretty sure we can find plenty of cases where a retrial is warranted.

[Semicolon]

At the same time, I'm pretty sure we can find plenty of cases where a retrial is warranted.

Even if you could find any such cases (and I'm sure that you could find a few), the harm to society by allowing retrials greatly outweighs any benefit that might be gained from locking up these criminals.

[Parts]

At the same time, I'm pretty sure we can find plenty of cases where a retrial is warranted.

Even if you could find any such cases (and I'm sure that you could find a few), the harm to society by allowing retrials greatly outweighs any benefit that might be gained from locking up these criminals.

I do not believe they would stop at just those few either

[Semicolon]

At the same time, I'm pretty sure we can find plenty of cases where a retrial is warranted.

Even if you could find any such cases (and I'm sure that you could find a few), the harm to society by allowing retrials greatly outweighs any benefit that might be gained from locking up these criminals.

I do not believe they would stop at just those few either

The slippery slope is too slippery.

[Parts]

At the same time, I'm pretty sure we can find plenty of cases where a retrial is warranted.

Even if you could find any such cases (and I'm sure that you could find a few), the harm to society by allowing retrials greatly outweighs any benefit that might be gained from locking up these criminals.

I do not believe they would stop at just those few either

The slippery slope is too slippery.

Slippery slope indeed,  it will be used to extract plea deals from people unable to afford years of legal fees

[odeon]

At the same time, I'm pretty sure we can find plenty of cases where a retrial is warranted.

Even if you could find any such cases (and I'm sure that you could find a few), the harm to society by allowing retrials greatly outweighs any benefit that might be gained from locking up these criminals.

I do not believe they would stop at just those few either

The slippery slope is too slippery.

I agree, but at the same time, think about it. Someone kills your loved one but gets away with it because of missing evidence. Then, a couple of years later, new evidence is found that unequivocally proves his guilt.

How would you feel?

[El]

Counterpoint:

You or your loved one is falsely accused of murder, spends years in jail awaiting trial (despite having been convicted of nothing), finally are granted a trial, found not guilty.  The case was so botched that you have the right to sue the state for it.  The state, to prevent you from doing this, has the ability to throw you back in jail again on "new evidence."

How would you feel?

The criminal justice system in the US is ungodly, hopelessly fucked, no matter how you look at it.

[odeon]

Yes, both are plausible, and both are fucked up.

[Semicolon]

At the same time, I'm pretty sure we can find plenty of cases where a retrial is warranted.

Even if you could find any such cases (and I'm sure that you could find a few), the harm to society by allowing retrials greatly outweighs any benefit that might be gained from locking up these criminals.

I do not believe they would stop at just those few either

The slippery slope is too slippery.

I agree, but at the same time, think about it. Someone kills your loved one but gets away with it because of missing evidence. Then, a couple of years later, new evidence is found that unequivocally proves his guilt.

How would you feel?

It doesn't matter how I would feel. In a criminal case, there are two parties: the state and the defendant. The victim (or relatives) only come into play to give statements during sentencing. The important part is safeguarding criminal processes so that they can't be abused by either party, especially the state.

[odeon]

At the same time, I'm pretty sure we can find plenty of cases where a retrial is warranted.

Even if you could find any such cases (and I'm sure that you could find a few), the harm to society by allowing retrials greatly outweighs any benefit that might be gained from locking up these criminals.

I do not believe they would stop at just those few either

The slippery slope is too slippery.

I agree, but at the same time, think about it. Someone kills your loved one but gets away with it because of missing evidence. Then, a couple of years later, new evidence is found that unequivocally proves his guilt.

How would you feel?

It doesn't matter how I would feel. In a criminal case, there are two parties: the state and the defendant. The victim (or relatives) only come into play to give statements during sentencing. The important part is safeguarding criminal processes so that they can't be abused by either party, especially the state.

If that's all that's important to you about a criminal process, then I understand why you think it doesn't matter how you feel.

Me, I think that how the citizens feel about their legal system should matter, and matter a great deal. If you don't trust the system, why should you play by its rules?

[Semicolon]

At the same time, I'm pretty sure we can find plenty of cases where a retrial is warranted.

Even if you could find any such cases (and I'm sure that you could find a few), the harm to society by allowing retrials greatly outweighs any benefit that might be gained from locking up these criminals.

I do not believe they would stop at just those few either

The slippery slope is too slippery.

I agree, but at the same time, think about it. Someone kills your loved one but gets away with it because of missing evidence. Then, a couple of years later, new evidence is found that unequivocally proves his guilt.

How would you feel?

It doesn't matter how I would feel. In a criminal case, there are two parties: the state and the defendant. The victim (or relatives) only come into play to give statements during sentencing. The important part is safeguarding criminal processes so that they can't be abused by either party, especially the state.

If that's all that's important to you about a criminal process, then I understand why you think it doesn't matter how you feel.

Me, I think that how the citizens feel about their legal system should matter, and matter a great deal. If you don't trust the system, why should you play by its rules?

This is a different argument. How citizens objectively view the system they fund with their tax dollars is different from how a victim (or a victim's family) subjectively views the system that is working to convict someone of a life-altering crime.