The rule against double jeopardy is a safeguard that prevents the police from harassing an individual indefinitely. Critics of the existing double jeopardy rules argue that since the defendant has a right of appeal, why shouldn't the state have another bite at the cherry as well? But the state and the individual are not equal parties in a criminal prosecution. The defendant's liberty is at stake, and the state holds all the power. Due process and defendants' rights exist to level the playing field between the two parties. If obviously guilty defendants are escaping punishment, then the answer is to raise the standard of police investigations and prosecutions, not to lower the standard of trials.
But this view has become unfashionable in today's Britain. These days, defendants' rights are under attack. The right to silence is now severely qualified, trial by jury is under review, legal aid is being wiped out, defendants now have to disclose their defense strategy to the prosecution well in advance of trial, and in rape cases the cross-examination rights of defendants have been drastically restricted. All of these measures have been introduced in the name of victims' rights. It seems that when we worry too much about ourselves as victims, the price we pay is our right to a fair trial.
The Macpherson report illustrates the manner in which the rules are changing in Tony Blair's Britain. Eighteen years ago, another public inquiry investigated police behavior after anti-police riots in many inner-city areas with large ethnic minority communities. The eminent judge Lord Scarman chaired that inquiry. Many of Scarman's findings were similar to Macpherson's, but his report never received the radical backing that Macpherson has enjoyed. At that time, it was only the right-wing hang-'em-and-flog-'em brigade that demanded new laws and new powers of prosecution. Civil rights activists and community campaigners, in contrast, simply wanted to get the state and the police off the back of the black community.
Now the tables have turned. Today it is the anti-racists and the victims' rights campaigners who seek to extend the power of the authorities, while the eccentrics on the right are left to bleat about civil liberties. Rather than demanding to be left alone, the leftists are demanding protection and shelter. New Labour can embrace these new-style activists because it has portrayed itself as the victim's protector. From school bullying to fox hunting to food safety, Blair and New Labour like to present themselves as latter-day knights in shining armor fighting for the weak. With radicals like these, who needs reactionaries?
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