Brendan O’Neill on the terrible precedent of a recent British government decision and it’s most recent mis-use:
On Nick Ferrari’s breakfast show on London’s LBC radio this morning, I argued that all the people describing this case as a victory for justice are overlooking the fact that it is a victory built upon the wreckage of some pretty important legal principles. One longstanding legal protection in particular — the double jeopardy rule, the idea that no one should be tried twice for the same crime — had to be dismantled in order to get Dobson back in the dock. Having been acquitted of the murder of Lawrence in 1996, Dobson was what we used to call ‘autrefois acquit‘, previously acquitted, which in the past would have meant that he could not have been tried for the murder a second time. That all changed in 2003, when New Labour ditched the double-jeopardy rule.
[. . .]
Double jeopardy is the elephant in the room of the Dobson and Norris conviction. Sure, journalists are mentioning it, usually in fluffy factboxes titled ‘How this case came to court’, but no one wants to discuss it in detail. No one wants to discuss the extraordinary amount of history and progressive tradition that had to be consigned to the dustbin of ‘bad ideas’ in order to secure one conviction against two nasty blokes.
The double-jeopardy rule had existed in some form or other for centuries. There was a Roman maxim which said ‘nemo bis in idem debet vexari‘ — no man shall be punished twice for the same. It’s there in early Christianity, too, in St Jerome’s insistence in the fourth century that ‘there shall not rise up a double affliction’. It’s also in the sixth-century Digest of Justinian, the seed of much of modern jurisprudence, which insisted that, ‘The governor should not permit the same person to be accused of a crime of which he has been acquitted’. An academic study of the double jeopardy rule in history points out that it is one of the ‘few legal rights recognised by the Christian fathers throughout the Dark and Middle Ages’.
In twelfth-century England, a form of double jeopardy was codified in the Constitutions of Clarendon, which, in an attempt to rein in the authoritarian instincts of Henry II, stipulated that no man could be tried for the same offence in both the ecclesiastical courts and the king’s courts. It had to be one or the other. From England it spread to the US, where the eighteenth-century revolutionaries and their successors made a bar against double jeopardy a key plank of their new republic’s constitutional guarantee of liberty against state power. In each historic period, the purpose of the rule against ‘double afflictions’ was strikingly similar: to protect individuals from potentially being hounded and interminably retried by governors, crown forces or cops determined to stick them in jail. That’s because being permanently at risk of prosecution is itself a kind of life sentence.
