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In framing the Fifth Amendment, our 18th century Founding Fathers incorporated four guarantees of defendants’ rights long recognized in the law of their English forebears. Two of these guarantees were abandoned or severely undercut by the English Parliament in the 20th century. The other two now face repeal in the current session of Parliament, at the behest of Prime Minister Tony Blair’s government. The Fifth Amendment, ratified in 1791, provides each American with these four guarantees: (1) that he will not be put on trial for a serious offense unless first indicted by a grand jury; (2) that he will not “be subject for the same offence to be twice put in jeopardy of life or limb”; (3) that he will not “be compelled in any criminal case to be a witness against himself” (i.e., he may assert the well-known privilege against self-incrimination); and (4) that he will not “be deprived of life, liberty, or property, without due process of law.” Although, on occasion, the guilty may go free because they cannot be tried again or required to testify, there is no credible effort to abolish the Fifth Amendment in the United States. Americans respect the fundamental fairness that it demands of the law enforcement system. Apparently, the English no longer see these four guarantees the same way. NO BILLS In 1933, the English Parliament abolished the institution of the grand jury, which had existed since 1166. According to the famous 17th century jurist Lord Coke, the right to grand jury indictment, as a prerequisite to being tried for a serious offense, was part of “the law of the land” secured to Englishmen by the Magna Carta in 1215. But even Magna Carta principles gave way to economic considerations seven centuries later. In the course of World War I, Parliament temporarily suspended the operation of grand juries in order to save on manpower and resources needed for the war effort. During this period of suspension, indictments were allowed to go to trial as drafted by the prosecution following a magistrate’s determination of probable cause. No grand jury considered whether the prosecutor’s indictment was a “true bill” or a “no bill.” After the war’s end, the grand jury was restored. However, when the Great Depression came and government resources were again severely drained, Parliament abolished the institution of the grand jury. There was little popular opposition: The return of “no bills” had become a rarity, and it was widely thought that the grand jury’s return of a “true bill” unnecessarily duplicated the magistrate’s finding of probable cause. As England’s attorney general stated in proposing the legislation, abolition was warranted because “grand juries are not serving any really useful purpose and are at the same time very expensive.” SILENT SCRUTINY Six decades later, in 1994, Parliament undermined the privilege against self-incrimination, adopting legislation that, in the words of English legal scholar Susan Easton, “radically contracted the right of silence.” The provisions of the Criminal Justice and Public Order Act 1994, while not directly requiring the accused to answer questions from police interrogators or to testify at his own trial, authorized the court and the jury to draw an inference of guilt from such failure to talk. Unlike the American trial judge constrained by Fifth Amendment principles and case law, the English trial judge may explicitly instruct the jury that this inference of guilt can be drawn. A defendant who asserts his right to silence thus pays a heavy price. As Easton noted in her 1998 book, The Case for the Right to Silence, “The effect of this legislation has been to undermine the right to silence and to shift the balance between prosecution and defense in favor of the prosecution.” A well-known American law professor, Albert Altschuler, has suggested that the legislation might also be challenged in the European Court of Human Rights. Altschuler theorized that the statute may violate the guarantee of a fair trial prescribed by the European Convention on Human Rights, to which the United Kingdom is a party. AN UNPUNISHED MURDER Now, in the wake of a highly publicized London murder case, the guarantee against double jeopardy has been called into question in Parliament. In 1993, Stephen Lawrence, an 18-year-old black student walking to his home in London, was assaulted and killed by a gang of white racist youths. The metropolitan police force conducted an investigation that has come to be recognized as grossly inadequate. Charges against two of the suspects were dropped without trial after the Crown Prosecution Service concluded that there was insufficient evidence to go forward. Public and media outrage was loud and ongoing. In 1997, then-Home Secretary Jack Straw finally appointed a former High Court judge, Sir William Macpherson, to chair an official inquiry into the handling of the Lawrence case. The exhaustive “Macpherson Report,” delivered in 1999, found that the police investigation had been “marred by a combination of professional incompetence, institutional racism, and a failure of leadership by senior officers.” Prime Minister Blair promised real reform. In the interim, since no prosecution had been brought to trial by the public authorities, Lawrence’s family had initiated a private prosecution against the suspects — as permitted by English law. But the three defendants brought to trial in this case were acquitted by the court for lack of credible evidence. And there it seemed that it must end. The double jeopardy guarantee, established by eight centuries of English common law, stood as a bar to any further prosecution by the public authorities, despite incriminating evidence subsequently uncovered by additional police investigation. The Macpherson Report accordingly proposed, among its 70 recommendations, “that consideration should be given to the Court of Appeal being given power to permit prosecution [of acquitted persons] after fresh and viable evidence is presented.” This recommendation was referred to a statutory body known as the Law Commission, which is charged with the task of studying and proposing legal reforms to Parliament. That commission recommended the repeal of the double jeopardy guarantee for acquittals in murder cases. The Blair government wants to go even further. The Criminal Justice Bill, introduced in the House of Commons in November 2002, would authorize retrials not just in murder cases, but for 30 different serious offenses. These include manslaughter, rape, armed robbery, arson, and certain major drug trafficking crimes, plus the offenses of aiding, abetting, counseling, or conspiring to commit any of the 30 enumerated crimes. GREATER JEOPARDY There are, of course, some safeguards. The proposed statute would allow new trials of acquitted persons to be ordered only where the prosecution is able to show, in an application to the Court of Appeal, that there is “new and compelling evidence that the acquitted person is guilty.” To be “compelling,” the new evidence must be “reliable” and “substantial” and make it “highly probable that the person is guilty of the offense.” The Court of Appeal must also find that “in all the circumstances it is in the interest of justice” to order a retrial. And as a prerequisite for a prosecutor making a retrial application to the Court of Appeal, the director of public prosecutions must first be satisfied himself that the new evidence is sufficient to meet the statutory requirements and that “it is in the public interest for the application to proceed.” It is not a stretch to assume that the Lawrence case would be found to meet all these statutory requirements for abrogating the double jeopardy guarantee. Furthermore, even the Lawrence case could be retried because, in a most disconcerting, though politically understandable, move, the Blair government’s proposed repeal of double jeopardy guarantees would apply retroactively. Persons who were acquitted years ago, long before this bill or the Lawrence case had ever arisen, could be subjected to retrials on new evidence. By American constitutional standards, then, the proposed Criminal Justice Bill would violate not only the guarantee against double jeopardy, but also the provision against ex post facto legislation, and the principles of due process of law, which bar legislative re-creation of a liability that had already been extinguished under prior law. Civil libertarians should be seriously concerned that the centuries-old rights of Englishmen, which we inherited and enshrined in our Bill of Rights, could be subject to such curtailment in the land of their origin. The same arguments of expediency that underlay their abandonment across the Atlantic could surely be made (and have, at times, been made) by American politicians. But for us, a written Constitution has so far proved its worth in preserving for England’s former colony what the English have been abandoning for themselves — in the name of “law reform.” Robert L. Weinberg, a former president of the D.C. Bar, is a retired founding partner of Williams & Connolly, where he practiced criminal defense law for 35 years. He is an adjunct professor teaching criminal procedure at George Washington University Law School and, since 1965, a visiting lecturer in criminal procedure at the University of Virginia School of Law.

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