Punishing the Innocent
Created | Updated Nov 28, 2002
Punishing the Innocent
Dan Goodman, November 2002
Recently, the government announced, via the Queen’s speech to parliament, proposals to end the double jeopardy rule (where someone cannot be tried twice for the same crime), and to allow juries to hear a defendants’ previous convictions. These two proposals beautifully illustrate a certain trend in current government thinking. At first glance, it seems as though the rules are being changed to favour “the interests of victims”. Indeed, it does seem absurd that even if a bloody knife with the victims blood on it and the defendant’s fingerprints turns up after he was acquitted of the murder he cannot be retried. Just as it seems absurd that a jury shouldn’t know if someone has been convicted fifteen times in the past for stealing ornamental monkeys if he is now being tried for the theft of an ornamental monkey.
Unfortunately, it isn’t enough to point to examples or to pose hypothetical situations in which the change in the rules would be for the better. Every change in the rules comes with good and bad consequences, it is the particular failure of this government that they will not consider the side effects.
The double jeopardy rule exists for many reasons, possibly the most important of which is that allowing retrials for the same crime would provide an incentive for the prosecution to release evidence in a slow trickle and to repeatedly prosecute suspects. A trial is not an exact science and a guilty verdict may sometimes be incorrect. By repeatedly trying someone for the same offence (the justification for the retrial would be the “new evidence” which was held back in the earlier trial), the prosecution would substantially increase the chance of at least one guilty verdict. The effect of getting rid of the double jeopardy rule will be a few genuine cases where someone guilty is punished when previously they wouldn’t have been, and a very substantial increase in persecution of suspects and an overall shift in bias towards finding people guilty.
Similarly, if we allow juries to hear about defendants’ previous convictions, the effect will be on the one hand a few cases like the ornamental monkey thief above, and on the other hand a massive increase in bias towards finding people with previous convictions guilty. This in turn will provide an incentive for the police to “round up the usual suspects” rather than engage in thorough investigation. If I know that Bob has been convicted many times for stealing ornamental monkeys then I can steal an ornamental monkey almost without fear, knowing that the police will arrest Bob and that he will almost certainly be convicted.
This obsession with catching the bad guys no matter what the effect on the innocent bystanders applies to much government policy. The economic sanctions on Iraq overwhelmingly hurt innocent Iraqis, but to this government that doesn’t matter if there is even the slightest chance that it might hurt Saddam Hussein (and if their own dossier is correct, it hasn’t even stopped him developing better missiles and possessing chemical and biological weapons).
A criminal or terrorist can buy, use, and discard a mobile phone entirely anonymously by paying for it in cash and getting one that uses top-up cards rather than a bill sent to you directly. This renders police powers to get hold of mobile phone data ineffective in combating premeditated crime or terrorist activities, but leaves the possibilities for abuse of these powers wide open.
A terrorist can use stenographic cryptography to get round police powers to demand (on penalty of two years imprisonment) that you decrypt any encrypted messages sent to you. (Stenographic cryptography hides the existence of an encrypted message inside a seemingly innocuous message, perhaps a picture or a piece of music. If the authorities can’t prove that an encrypted message exists they can’t require you to decrypt it.) This technology is simple enough that a reasonably sophisticated terrorist group would have no trouble using it, but sufficiently complicated that ordinary people would. (This legislation is in part III of the Regulation of Investigatory Powers Act and is not yet in force.)
Traditional views of justice hold that it is better to let a hundred guilty people go free than to wrongly convict a single innocent person. This government holds that it is fine to hurt a hundred innocent people if it helps catch just one more guilty person.
Dan Goodman, November 2002
Recently, the government announced, via the Queen’s speech to parliament, proposals to end the double jeopardy rule (where someone cannot be tried twice for the same crime), and to allow juries to hear a defendants’ previous convictions. These two proposals beautifully illustrate a certain trend in current government thinking. At first glance, it seems as though the rules are being changed to favour “the interests of victims”. Indeed, it does seem absurd that even if a bloody knife with the victims blood on it and the defendant’s fingerprints turns up after he was acquitted of the murder he cannot be retried. Just as it seems absurd that a jury shouldn’t know if someone has been convicted fifteen times in the past for stealing ornamental monkeys if he is now being tried for the theft of an ornamental monkey.
Unfortunately, it isn’t enough to point to examples or to pose hypothetical situations in which the change in the rules would be for the better. Every change in the rules comes with good and bad consequences, it is the particular failure of this government that they will not consider the side effects.
The double jeopardy rule exists for many reasons, possibly the most important of which is that allowing retrials for the same crime would provide an incentive for the prosecution to release evidence in a slow trickle and to repeatedly prosecute suspects. A trial is not an exact science and a guilty verdict may sometimes be incorrect. By repeatedly trying someone for the same offence (the justification for the retrial would be the “new evidence” which was held back in the earlier trial), the prosecution would substantially increase the chance of at least one guilty verdict. The effect of getting rid of the double jeopardy rule will be a few genuine cases where someone guilty is punished when previously they wouldn’t have been, and a very substantial increase in persecution of suspects and an overall shift in bias towards finding people guilty.
Similarly, if we allow juries to hear about defendants’ previous convictions, the effect will be on the one hand a few cases like the ornamental monkey thief above, and on the other hand a massive increase in bias towards finding people with previous convictions guilty. This in turn will provide an incentive for the police to “round up the usual suspects” rather than engage in thorough investigation. If I know that Bob has been convicted many times for stealing ornamental monkeys then I can steal an ornamental monkey almost without fear, knowing that the police will arrest Bob and that he will almost certainly be convicted.
This obsession with catching the bad guys no matter what the effect on the innocent bystanders applies to much government policy. The economic sanctions on Iraq overwhelmingly hurt innocent Iraqis, but to this government that doesn’t matter if there is even the slightest chance that it might hurt Saddam Hussein (and if their own dossier is correct, it hasn’t even stopped him developing better missiles and possessing chemical and biological weapons).
A criminal or terrorist can buy, use, and discard a mobile phone entirely anonymously by paying for it in cash and getting one that uses top-up cards rather than a bill sent to you directly. This renders police powers to get hold of mobile phone data ineffective in combating premeditated crime or terrorist activities, but leaves the possibilities for abuse of these powers wide open.
A terrorist can use stenographic cryptography to get round police powers to demand (on penalty of two years imprisonment) that you decrypt any encrypted messages sent to you. (Stenographic cryptography hides the existence of an encrypted message inside a seemingly innocuous message, perhaps a picture or a piece of music. If the authorities can’t prove that an encrypted message exists they can’t require you to decrypt it.) This technology is simple enough that a reasonably sophisticated terrorist group would have no trouble using it, but sufficiently complicated that ordinary people would. (This legislation is in part III of the Regulation of Investigatory Powers Act and is not yet in force.)
Traditional views of justice hold that it is better to let a hundred guilty people go free than to wrongly convict a single innocent person. This government holds that it is fine to hurt a hundred innocent people if it helps catch just one more guilty person.
