Tinkering with our legal traditions

Two of the long-cherished and traditional cornerstones of our justice system are under threat for purely political reasons.

With Queensland facing a state election on September 9, law and order issues are on the agenda and politicians love to exploit a “get tough on crime” stance for vote-catching purposes.

In recent moves, the Queensland Government is investigating changing the traditional legal rule of double jeopardy, while the state’s Opposition is arguing for Queensland to adopt a system giving jurors the powers to make sentencing recommendations to trial judges.

Both moves are dangerous. Individually and collectively both would seriously erode the foundations of justice.

Tinkering with the 800-year-old double jeopardy rule - which prevents people being tried twice for the same crime - is a formula for disaster. The idea that acquitted people could be tried again for the offence if new and compelling evidence emerged, is merely a shortcut to prosecutors seeking endless re-trials until they achieve the verdict they want.

Assurances that retrials would be on a “one instance only” per case are worthless. Once the traditional rule of double jeopardy is gone, it would be easy to tinker with the law and allow open-ended retrials.

This is what happens when law and order becomes a vote-catching issue. It’s not about a fair system of justice: it’s about what might appeal to the voter.

There is potential for abuse by removing the 800-year-old double jeopardy principle, an idea earlier aired in 2003 and again last year where it was recognised that “modernising” the principle was always fraught with potential risks.

If a person accused of a serious crime is acquitted, they are entitled to have some certainty in their future. The double jeopardy principle gives them that. If you take that away, we could see a situation where the prosecution can’t prove its case, and has another go until they find a decision they like.

While advances in science, especially in DNA technology, mean fresh evidence might become available for previously tried cases, there is an inherent risk to the principles of justice by clearing the way for acquitted people to be charged again for the same offence.

It’s a short distance from there to implementing more changes, allowing additional retrials, all in the name of considering new evidence provided through scientific advances. Where does that place justice for the accused person? If a court acquits them, they should be entitled to get on with their life, not to have the spectre of retrials hang over their heads for the rest of their lives.

Criminal defence lawyers fear that once a long-established rule is changed, it would be easy to change it again down the track. It should not become a signal for lazy policing or a slapdash prosecution in the knowledge you could have another go at the defendant.

Historically, justice has been served by the double jeopardy principle even though there will always be rare examples where it may have worked in a defendant’s favour. We don’t condone that, but criminal lawyers say we should not rush into reforms unless they are carefully thought out.

The same cautions should also apply to recent calls to give jurors powers to make sentencing recommendations to trial judges.

The idea of giving jurors greater say in sentencing arose last year when NSW Supreme Court Chief Justice James Spigelman advocated the idea as a way to restore public confidence in the judiciary system, following complaints about lenient sentences.

The NSW State Government is now studying a report it commissioned into a reform of the NSW legal system. If adopted it would give juries power to consult with judges over appropriate sentences, give direction to the courts, and be responsible for determining verdicts.

While Queensland Attorney-General Linda Lavarch has said it is too early to speculate on the idea being used here, Opposition Leader Lawrence Springborg said he favoured the move.

In my view the plan is highly risky and cuts to the core of a basic tenet of justice - judges should be the ones who impose sentences alone.

Penalties and sentences are laid down in government legislation and only judges are qualified to interpret the complexities of this law. It is unfair to judges if jurors have input into those decisions. Nor is it fair to jurors.

Juries play an important role in the justice system but jurors are not legal experts. They are there solely to decide if a person is guilty beyond reasonable doubt. It would not serve the best interests of justice if sentencing was in any way influenced by people whose knowledge of the justice system was limited to watching crime shows on TV.

Jury service can be stressful to jurors. Involving jurors beyond their present role would only add more stress to their duties. Inevitably, having jurors influence a judge’s sentencing decision would also lead to more appeals.

It is worrying that vote-catching issues such as jury powers and eliminating the traditional double jeopardy rule are being pushed as political strategies.

Our justice system is based on hundreds of years of practice, but it is still vulnerable when you get politicians crusading on a “get tough on crime” bandwagon.

Juries have a specific role to play in trials, that of determining guilt or innocence. Judges and magistrates have to interpret complex legislation in deciding on a sentence, and they should not be pressured by people who are not experienced in interpreting the sentencing laws.

Giving jurors such powers would also play havoc with jury deliberations. You could expect juries to be strongly divided if jurors were also expected to help decide a sentence. Rather than improve justice, this idea would hobble it and be guaranteed to generate more appeals against sentence.

Giving juries a say in sentencing is not the way to go. Judges alone must determine the sentence. Similarly the double jeopardy principle has been with us for a very long time and in general it works well. Neither of these traditions needs change.