It is no exaggeration to say that the conviction of David Norris and Gary Dobson for the murder of Stephen Lawrence is symptomatic of a criminal justice system slipping towards totalitarianism. The alarming disregard that the establishment has shown for the rights of these men should be a catalyst for a serious and principled argument for reversing the gradual erosion of defendant’s rights, which began under New Labour and has continued under the Coalition. It is time to make a case for rebalancing the scales in favour of defendants and against the incessant bowing of freedom beneath the false god of scientific objectivity.
The mood after the conviction of Norris and Dobson was self-congratulatory and jubilant. Paul Dacre, who published images of the defendants in 1997 under the headline that simply read ‘Murderers’ whilst he was editor of the Daily Mail, called it a ‘glorious day for British Newspapers proving that the power of journalism, courageous headlines and relentless campaigning can act as a huge force for good in society and make a major difference to countless lives’. The Crown Prosecution Service, who brought the prosecution against the men, congratulated themselves on ‘a lot of hard work’ and called it ‘the most significant case in a generation’. The quiet and dignified relief of Stephen Lawrence’s parents was almost drowned out by the billowing back slapping of the media and the lawyering class.
The Crown Prosecution Service may be right to describe the case as highly significant, but not for the reasons they imagine. What was truly significant about the reaction to the Stephen Lawrence verdict was the glossing over of the enormous sacrifices that have been made in terms of traditional freedoms in the course of the Lawrence case. Many have pointed out that the ancient principle of double jeopardy, roughly the idea that a defendant should not be tried for the same crime twice, was abrogated in order to secure the conviction of Gary Dobson. But this was just one of the rights usually afforded to defendants which the establishment chose to ignore in relation to these men.
Take, most obviously, the presumption of innocence. For many Judges and journalists, Dobson and Norris were guilty long before the jury returned its verdict. In the course of the MacPhereson inquiry into the Metropolitan Police’s bumbling investigation of the murder, Sir William referred to the suspects variously as ‘evil’ and ‘obvious targets for early arrest’. In a special edition of the Tonight Programme, involving interviews with the suspects in 1999, Martin Bashir cross examined the Aicourts, Norris, Dobson and Knight on their accounts of their movements on the night. Bashir invited each of them to comment on unsubstantiated allegations and hearsay before claiming that the inconsistencies in their account made it ‘hard for anyone in the public to believe they were innocent’. The casual disregard for this fundamental assumption of English Law was typified by the ‘courageous’ headline from the Daily Mail in 1997 – but quite what is so ‘courageous’ about publishing slanderous headlines about 3 men who cannot afford to do anything about it remains to be seen. It is hard to remember that until Tuesday, Dobson and Norris were innocent men. The Aicourts and Luke Knight remain so.
Then consider the right to silence. The defendants were continually chastised by the establishment for failing to give an account of themselves. Lord Justice Simon Brown, in the course of a ruling which confirmed the obligation on the defendants to give evidence to the MacPhereson Inquiry on pain of prosecution said ‘these defendants twice had the opportunity to protest their innocence and have chosen not to do so’. Quoting Brown LJ, MacPherson concluded in his report that their silence meant ‘the press and the public cannot be blamed for voicing their suspicions about them which are current and will remain alive’. Michael Mansfield QC, the barrister who undertook the private prosecution of the men in 1994 and who has built a career on purporting to champion defendant’s rights, said in an interview with the Guardian Newspaper : ‘The Lawrence suspects had a right not to answer questions that might incriminate them. But to refuse to answer any questions beyond their names was an abuse’. Throughout the investigation and the inquiry the men were scorned for refusing to bow to Judicial and media pressure to assist the police and for choosing to affirm their fundamental right to remain silent.
And what of the principle of double jeopardy? This principle of English Law lasted from the Ancient Greeks until the New Labour government decided to disregard it in the Criminal Justice Act of 2003. Double Jeopardy is often cited as originating in canon law but its routes are more democratic. In the Roman republic, the decision of a single Magistrate was only appealable to a Court made up from the citizens of that republic. Because blame was understood as fundamentally social, it was thought that society could not be wrong in their decisions as to how they allocated blame. Double Jeopardy was born from the fundamentally democratic idea that the decisions of the people in deciding whether someone was blameworthy simply could not be wrong.
But a noble ancestry was not enough for the New Labour government, who in 2003 abolished double jeopardy in the course of a sweeping attack on defendant’s rights. The Act stipulated that the Court of Appeal could quash a jury’s acquittal and order the retrial of a defendant for the same crime in the face of ‘new and compelling evidence’ as to the defendant’s guilt. It also allowed evidence of ‘bad character’ to be shown to juries. This was why it was permitted for the jury in the Stephen Lawrence case to be played the ‘racist surveillance’ footage showing the men engaging in racist and violent behaviour in Dobson’s home. It also placed an obligation on defendants to disclose the nature of their defence to the prosecution months in advance of their trial, including the names and details of all the witnesses that they intend to call. This removed the long established right of the defence to ‘ambush’ the prosecution at trial.
All of these reforms were driven by dangerously authoritarian assumption which became a hallmark of New Labour’s approach to criminal justice in response to Lawrence’s death: that the sole purpose of the Courts is to deliver accurate verdicts efficiently. Of course, an accurate verdict is a vital goal for any justice system. But an accurate verdict means nothing if the state and the citizen are not placed on an equal footing in the course of its determination. This is why the rights accorded to defendants are vital and why any attempt to curb or ignore them should cast a significant shadow over any subsequent verdict.
It goes without saying that society is better off without Norris and Dobson. But anyone who is dedicated to protecting freedom and ensuring limits on state power should be extremely concerned after their conviction. Their trial showcased all the authoritarian developments in our justice system since Stephen Lawrence’s tragic death. It is now vital that we reinvigorate the debate around the rights of defendants and strenuously resist this incessant drive towards efficiency and accuracy. No conviction is worth the cost.