For our last official criminal justice class, we heard from five more teams of students about their research projects. (At the students’ request, we also scheduled an extra evening session to watch the third best movie ever made about the law and lawyers—answer at the end of this post.) Once again, the students worked on a wide range of topics and, once again, I learned from the students. Here are some quick takeaways along with a brief discussion of one of the topics—double jeopardy, or more accurately, the absence of double jeopardy protections in the UK.
Presentations. I continue to be impressed by the availability and transparency of official UK government reports about its criminal justice system, even when critical of the government. For example, in 2017 the National Audit Office released its report on mental health care in UK prisons, one of the topics of the student presentations. The report did not pull any punches. It stated simply that the government does not know how many people in prison suffer from mental illnesses. Consequently, government officials “do not know the base they are starting from, what they need to improve, or how realistic it is for them to meet their objectives.” Similarly, the student team presenting on police encounters easily located UK government reports on racial disparities in stops and searches, such as here, here, and here. The findings are disturbing, but their frankness reflect a commitment to addressing the problems and provide a common basis for moving forward.
I also continue to be impressed by the ability of the students to present their ideas in compelling, creative ways. The students who presented on fingerprint forensics had us ink our fingers and then try to puzzle out the loops, whorls, and arches of our fingerprints. For a presentation on ineffective assistance of counsel, the student team used a free online polling app, Kahoot, to have the class assess whether sleeping, inebriated, or simply unqualified attorneys were found by the courts to be ineffective (they weren’t). The ever-present smartphone thus became an aid instead of an obstacle to teaching, a technological innovation I intend to use (assuming I can figure it out).
Double jeopardy. The subject of the student presentation on double jeopardy presented a stark contrast to US law. In Part 10 of the Criminal Justice Act of 2003 (summarized in the explanatory notes to the act), the UK Parliament abolished the common law rule that an acquittal bars retrial of an accused person. Under the act, retrial is permissible in the following circumstances: there is new and compelling evidence, defined as evidence that was not adduced earlier and that is reliable, substantial, and highly probative; the crime is serious, defined (in Schedule 5 of the act) as including homicide, sexual offenses, kidnapping, arson, and certain drug offenses; and on application by the government the Court of Appeal finds that these conditions are met and that it is in the interest of justice to quash the acquittal and permit retrial. Further, the act permits retrial of defendants whether they were acquitted before or after the passage of the legislation.
Two cases contributed to the change. One was the racially-motivated murder in 1993 of Stephen Lawrence, a Black teenager, by a white gang; the other was the 1989 murder of 22-year old Julie Hogg and concealment of her body behind a wall in her house. In the first case, a later investigation uncovered DNA evidence connecting the acquitted defendants to the murder. In the other case, the acquitted defendant was in prison on another offense and admitted that he had killed the young woman. All of the acquitted defendants were retried and convicted. Scotland’s Parliament followed suit with a similar act in 2011.
Other factors also contributed to the double jeopardy changes. The 2003 Criminal Justice Act reflected a get-tough-on crime mentality in Parliament. Among other things, the act eliminated limits on introduction by the prosecution of “prior bad acts” by the defendant, restricted by our Rule 404(b) of the Rules of Evidence. It expanded police powers to stop and search. It allowed the taking of DNA samples for most arrests, without provision for destruction of the records following a dismissal or acquittal (limited by a later act, discussed in a previous post).
Media coverage also fueled the double jeopardy changes. The Daily Mail ran a front-page story about the gang members in the Stephen Lawrence case, with a large photo of each man and an extra-large headline—MURDERERS—along with this subtitle —”The Mail accuses these men of killing. If we are wrong, let them sue us.” Click on the link to get the full effect.
It is difficult to argue with the end result in the Lawrence and Hogg cases. The facts of the crimes were horrendous. Still, I have reservations about jettisoning centuries-old limits on government power. In other posts from London this semester, I have written admiringly about some aspects of the UK criminal justice system. The lack of a US-style constitution, setting minimum protections immune from legislative reduction, isn’t one of them.
Best legal movies. On a lighter closing note, here is the answer from the beginning of this post. According to a poll by the American Bar Association, the third best legal movie of all time is My Cousin Vinny, one of my favorites, full of funny and instructive moments about trying a case. You probably don’t need to click on the link to figure out the legal movie considered the best ever. I will just say that I see some future Atticuses in this talented group of undergraduate students.