Opinion: ‘Double Jeopardy’ Needs More Reform

April 10, 2014

[Opinion column written by Jonathan Starling]

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.

- Jonathan Starling has degrees in Ecological Economics and Urban and Regional Planning, and is well known in the online community through his Catch-A-Fire blog, which he has maintained since 2007. He ran as Independent candidate in C#20 Pembroke South West in the 2012 General Election.

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Comments (9)

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  1. Kim Smith says:

    Ah… so you see, if it wasn’t for all this hoo-hah, this matter would still be sitting on the shelf until we have another situation that would want to rely on it.

  2. Goaltender Interference says:

    Getting rid of the Double Jeopardy rule is a bad idea. It is one of the oldest and most important protections that citizens have against arbitrary government power. When the government starts scratching out our legal rights in order to make it easier to prosecuting serious crime, then all sorts of abuses are possible.

    That’s what made the fiasco of Guanatamo Bay possible –yes, some very bad people were held there, but also hundreds of innocent people were robbed of almost a decade of their lives in a prison where they had no legal rights.

    Of course it is an unpopular rule when a guilty person goes free, but our system is designed to protect the innocent, not to satisfy a public’s desire for successful prosecutions.

  3. MB says:

    The OBA’s defence of banning the crew is so ill thought out, selfish and naive beyond words it makes me question whether I could ever vote for a party that would offer up this!

    Do they really think the crew wil now go away. No, they will make their doc any way they can and come back to bite us hard in the a** … showing Bermuda in a farworse light than had they cooperated.
    In their defence today they say story has been told ‘over and over’. Well guess what – it should be told OVER and OVER until their is JUSTICE for this girl. Ever think of it that way, or maybe you should think of Becky as your daughter…what would you do? Stop the story being told because tourism might slip further into the toilet than it already is??

  4. nuffin but the truth says:

    FAHY needs to reverse that decision he badly made and then RESIGN!

  5. New PLP Supporter says:

    Agreed. Can’t support the OBA anymore.

    • Sandy Bottom says:

      Yeah right.

      I’m never voting PLP again either.

  6. LMAO says:

    I’m am truly LMAO this is horrid what Fahy did to Bermuda.

    • Sandy Bottom says:

      Oh give it a rest. Fahy didn’t do anything to Bermuda. Starling is suggesting a 2010 law, passed by the PLP, needs changing. Get a grip.

  7. hold on says:

    If ever there were a case to make an exception – just an act of Parliament to address this one case – this is it. Rebecca Middleton’s murder and the mishandling of the prosecution has brought great shame on our island and needs to be redressed. I thought Michel Fahy had more sense than this and I bet he is now regretting his decision to bar the firm crew. He has previously shown the courage to correct poor decisions and I sincerely hope that he does again here.