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Editorial - Double jeopardy

IT’S an old chestnut, a centuries old law that is a key plank in our legal system – the fact that someone acquitted of a charge may not be tried again for that particular offence.

Known as double jeopardy, it is one of those concepts that is etched into our psyche, embedded in the Aussie (though it is rooted in English law) idea of a ‘fair go’.

But that legal principal is now under attack, becoming a political football in Australia, as it was in the UK a couple of years ago.

And there is little wonder that it is occurring when you examine the changes in society that are driving this debate.

The double jeopardy rule is seen as an important element of individual rights, an ancient principal that has survived the test of time, providing the little man with one form of comfort – that a case won stayed won.

But recent changes in investigation techniques, namely the use of DNA, have led to calls for some old cases to be revisited because such technology could put to rest doubts about the perpetrator of a major crime.

In my mind such an argument is a furphy because, at most, DNA testing can only potentially solve a handful of major crimes committed over the past 20 or 30 years where sufficient evidence still exists and enough relevant witnesses remain alive to retry such a case fairly.

Of course, further advances in law enforcement may see some future version of DNA testing appear – resulting in a similar argument regarding this ‘gap’ between the crime and suitable technology to prove guilt or innocence.

But generally, the principle is not about this rare occurrence of new technology that can revisit the past.

It relates to a more fundamental change that’s taking place in our society – the shift from individual rights to community rights and those of the victim.

Those who champion change ask why someone who has committed a crime should be allowed to get away with it simply because technology at hand was not adequate at the time their case was tried.

They would probably argue that the rights of everyone, most particularly those who are victims or close to victims, are eroded by the fact that the guilty could be allowed to go free when new evidence is available that could convict them.

Those against change fear that it may lead to sloppy cases being rushed through because prosecutors will know they have a second bite of the cherry.

But sloppy or even malicious cases have always existed.

That is why new evidence can be introduced to reopen cases where those involved claim a false conviction. John Button, for instance, was recently exonerated after serving a jail term for a murder committed by someone else decades earlier.

But there is another principle at stake here and I suggest it’s the result of our ageing society and increasingly easy access to information.

The person on the street, like it or not, is more interested in the operations of the law than they ever were. It is no longer the mystery it used to be.

This coincides with rising public concern that the victim’s rights are being overlooked and, more importantly, their chances of becoming a victim are much higher than ever before. Is this the real double jeopardy?

Worse, Mr and Mrs Punter believe the perpetrator of a crime against them will most likely be someone who has been through the justice system already – no doubt given a slap on the wrist the day before they went on their latest spree.

This, in my opinion, is particularly the case among the big vote-pulling baby-boomer demographic, which sees itself as increasingly vulnerable in its old age. Even those who can wall themselves off in private retirement estates despair at the apparent lawlessness of our urban centres.

They compare 2003 to their younger days when no-one locked the doors of their houses and everyone left the keys in the ignition overnight.

In other words, they don’t believe the justice system is working.

They don’t believe laws are tough enough, they don’t believe juries can cope with bamboozling evidence and they don’t believe judges are in touch with reality.

Whether their beliefs are justified or not, to me this perception means that our legal system is failing another ancient principal – that justice is not only done, but must be seen to be done.

This is the first issue governments must address.

They must use their resources and knowledge to convince the public that justice is being done, or be accountable for its failure.

A band-aid approach to the failure of one principal by hurriedly dumping another is not the answer – at least not yet.

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