David Allen Green

A critical and liberal look at law and policy

The ones that got away

What about the gang members not convicted of the murder of Stephen Lawrence?

By David Allen Green Published 04 January 2012 17:03

Everyone knows who killed Stephen Lawrence. It was a gang of vile thugs, two of whom were convicted of murder yesterday, on the basis of forensic evidence. Everyone thinks they know who the other thugs were in what the criminal law rightly classes as a "joint enterprise". Many even know them by name and would recognise their photographs. It surely can only be a matter of time before the other ones are prosecuted and convicted.

But what do we actually know? As it stands there appears to be no forensic evidence linking any of the other individuals to the horrific crime of Stephen Lawrence's murder. There is also no eye witness evidence which can be put before a court. As the Court of Appeal pointed out regarding the original prosecution when quashing the acquittal of Gary Dobson so that he could again stand trial:

Following their arrests, Knight and Neil Acourt were charged with the murder of Stephen Lawrence, after each of them was identified on identification parades by Duwayne Brooks as part of the attacking group of white youths. However the reliability of these identifications was called into serious question. On any view Brooks had found himself in a frightening situation, with only a brief opportunity for making a correct identification at night, under artificial light, in a desperately fast-moving incident.

Moreover, after he had identified Knight, he himself confirmed to an independent police officer that he had not actually seen the faces of any of the attacking group, but had been given a description of them before he took part in the parades. Accordingly, the prosecution of Knight and Neil Acourt was discontinued.

As to Dobson, he was never identified by anyone. [...]

The evidence of Brooks was crucial to the success of the prosecution, but as we have indicated, it was flawed. The question whether his evidence should be placed before the jury was examined in detail at a voir dire. Brooks gave evidence on three days. After hearing argument, Curtis J concluded that his evidence of identification of any of those involved in the attack on Stephen Lawrence was inadmissible. The judgment was impeccable, the reasoning clear, and the conclusion unavoidable.

And so we have a gap. On one hand, there are three alleged murderers who many sensible and informed people believe with complete certainty were part of the gang which attacked Lawrence. On the other hand, there seems -- at least currently -- to be no available evidence to warrant any prosecution, let alone convictions beyond reasonable doubt.

This is the sort of situation which usually cannot hold. If the matter cannot be tried in a court of law, then it seems it will be tried in the so-called court of popular opinion. But the problem with those who "everybody knows" are guilty is that they sometimes are not, at least not of the crime being alleged. Many miscarriages of justice and media sensations have been on the misconceived basis that they "must" be guilty. Examples do not even have to be listed; we all know them.

Unless there is new evidence -- possibly either in forensic form or a confession by one of the two now convicted murderers -- then the dreadful situation will persist of there not being any further prosecution of the others widely suspected of killing Lawrence. No tabloid campaign or new judicial inquiry can change this stark fact.

Had the police conducted a competent initial murder inquiry in the days after Lawrence's murder, there would perhaps be other evidence. But for whatever bad reason the police did not do so. Such helpful evidence cannot now be contrived, and there cannot be any prosecution without evidence. Mere certainty, however well-grounded and widespread, is not enough. The Crown has to prove guilt beyond reasonable doubt, and popular opinion is not admissible in court.

So what should happen to those suspected of murder, but still at large? Should there be no adverse comments? No negative publicity? Should everyone just hold their tongue? Well, without the prospect of proceedings, there is no "due process" to be respected, as there is no determination of guilt in the offing. In that way, there is no legalistic objection to popular opprobrium. It is not sub judice.

However, one day there could be new evidence. There may be a further advance in forensic science which would affect this case. Or there could be a confession implicating another. In those circumstances, there would need to be "due process" with the innocence being presumed until guilt is proved. But would that now be really possible? There is no doubt that the defence lawyers of those prosecuted would contend a fair trial would not now be possible; but, as the Court of Appeal showed when quashing Dobson's acquittal, the courts can be robust in saying that trials should go ahead even when there has been bad publicity. But this robustness is not inevitable.

It may be important that we can join the clamour of condemning those who look as if they have evaded justice. Unfortunately, that same clamour can also be exploited to help the culprit escape justice. Accordingly, even when not legally required for a current legal case, the presumption of innocence until proven guilty remains a sensible policy. Those seeking to escape justice really do not need any further help to get away with it.

David Allen Green is legal correspondent of the New Statesman

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19 comments

Wed, 2012-01-04 18:09 — Jill of Kent (not verified)

Well,James, that was the point I was trying to make. If Parliament can effortlessly change the common law (whether an obscure principle or, as here with double jeopardy, a constitutionally significant one), where does that leave any argument (in England and Wales at least) that Parliament is not Sovereign, because there are some common law principles it cannot abrogate? (See Green's NS post of 25/10/11.) The answer is that it leaves the argument nowhere. It is simply wishful thinking on the part of lawyers and judges like Lord Steyn.

Wed, 2012-01-04 18:13 — Peter English (not verified)

Spot on, David.

I also feel very uncomfortable about the media reports that the family cannot have "closure" until all the assailants have been tried and convicted. Stephen Lawrence is dead. Society must do what it can to prevent future such deaths; but the family has no right to have all the assailants tried and convicted, and their coming to terms with the death should not be dependent upon this.

Wed, 2012-01-04 18:16 — ObiterJ (not verified)

1. To prosecute those previously acquitted on the (correct) direction of Curtis J would require another application to the Court of Appeal. New and compelling evidence would be required. To this extent the old double jeopardy rule still exists.

2. Even if either (or both) of Dobson and Norris start singing like canaries there will still be formidable problems in using anything they say in evidence against anyone else.

3. However guilty anyone else may be in the "Court of Public Opinion" the fact remains that in law they are innocent until proved otherwise. We have to hang on to this principle.

4. I suspect that we have now seen the last prosecution for murder though, of course, one cannot be certain.

Wed, 2012-01-04 19:00 — Jill of Kent (not verified)

Lloyd, thank you. That's what I thought. So it really boils down to this: Parliament (and thus, to some extent at least, the electorate) are Sovereign, unless they wish to be illiberal. And then they are not. But doesn't democracy mean that people have to be free to decide to have an illiberal society, if that is what they want? And who decides what is liberal and illiberal? In reality 'liberal' opinion is simply 'elite' opinion by another name. And in this way a new aristocracy is born.

Anyway, enough from me. Goodnight.

Thu, 2012-01-05 14:38 — Sue (not verified)

I was shocked to hear on Radio 4's Today programme at 8am today a reference to others named in the Lawrence case as "murderers". It used to be the case that juries decided who was guilty. I presume that an appeal will be entered as soon as practicable by Messrs Dobson and Norris on the basis that the trial was unsound. Given the torrent of press coverage both during and after the trial it would appear to this laywoman that they have a good case. The general public doesn't know who killed Stephen Lawrence and the lynch mob mentality permeating the media is vile. It is probably down to the police at the time not investigating thoroughly that let this case run and run but matters are not helped by today's police reaction of "we're coming to get you". They need to find evidence not make threats. I want juries to decide on court cases in as timely a manner as possible after the event. Not two decades later.

Thu, 2012-01-05 00:43 — Andrew (not verified)

MOObilderbergS - You're confusing common law (which is judge-made law enforced in the absence of a statute) with natural law (which is a moral or religious law existing outside the legal system e.g. the 'Golden Rule').

The two are very different things.

Thu, 2012-01-05 00:54 — Bren Tierney (not verified)

Apropos 'double jeopardy': if a bad law exists (common or otherwise), which might allow an injustice to go unresolved, and allow suspects to hide beneath its outdated petticoats (even in the light of fresh evidence), then it is mete and proper that that law be changed.

We can only hope that there is more evidence in the Lawrence murder case, and that forensic technology improves further to allow the other scumbags in the case to be brought to book.

Thu, 2012-01-05 08:12 — Captain Sensible (not verified)

The only ones who gotta way you dickehad were the decapitators of spend a hour in the backstreets of Lusaka or joburg.

Mon, 2012-03-26 07:10 — RemingtonSherman

If Parliament can effortlessly change the common law (whether an obscure principle or, as here with double jeopardy, a constitutionally significant one), where does that leave any argument (in England and Wales at least) that Parliament is not Sovereign, because there are some common law principles it cannot abrogate? (See Green's NS post of 25/10/11.) The answer is that it leaves the argument nowhere. It is simply wishful thinking on the part of lawyers and judges like Lord Steyn. http://www.windows101.org/

Wed, 2012-01-04 17:34 — Jill of Kent (not verified)

As you note, in this case there was a ruling by the Court of Appeal in this case "quashing the acquittal". How can that be? Because an Act of Parliament removed a common law principle so ancient that the plea is still entered on the court record in basardised French. That principle is, of course, "double jeopardy" and the plea is "autrefois acquit".

If Parliament can change this ancient common law principle, which a previous age would have seen as fundamental to our liberties (a view which remains general in many other countries), where does this leave the theory, propounded by many lawyers of a self-described 'liberal' bent, that Parliament is not, in fact, Sovereign? Is it only not Sovereign when it takes a measure deemed anti-progressive?

Thu, 2012-01-05 13:39 — john woods (not verified)

The deaths of Richard Everitt and Stephen Lawrence:

compare and contrast

By: Robert Henderson

The Death of Richard Everitt (see below) is an article I wrote in 1994. Compare and contrast the elite response to his death and that of Stephen Lawrence.

Richard was knifed to death by an Asian gang approximately 300 yards from my front door. The gang was large, perhaps as many as 15 members. The gang was known as the Drummond Street Posse and had gone out that night specifically looking for a “white boy” to attack because they felt they had been “wronged” by a white boy (http://www.mamaa.org/infalre.html).

The gang were arrested the same night for a separate incident and blood was found on 19-year-old Badrul Miah. This turned out to be a match for that of Richard. Miah, later boasted that he had “stabbed up some white boy”. http://www.mirror.co.uk/life-style/kids-and-family/2008/10/1...

After nine months the police had arrested 11 people in connection with the murder. The 11 dropped to six and after a committal hearing the number fell to 3. Eventually only two came to trial, Badrul Miah and Showkat Akbar. Akbar was found guilty of violent disorder and sentenced to three years, of which he served 18 months. Miah was sentenced to life but let out on licence after 11 years despite the trial judge describing it as an unprovoked racist attack (see Mirror link above).

The parents of Richard suffered beyond the loss of their child: “After the trial Mandy and Norman tried to move on but were the victims of threats and racial abuse. They had to leave the home where they raised their children and move out of London to Essex.” (http://www.mamaa.org/infalre.html)

Those are the bare facts of the Everitt murder. Compare the elite response to his murder with their response to that of Stephen Lawrence:

1. Only one person was convicted of the murder even though all were guilty of joint enterprise.

2. There has been no media campaign to bring the others to justice.

3. There has been no public inquiry into Richard’s murder.

4. The one person was convicted of Richard’s murder was released after 11 years without any media or political uproar.

5. There has been no concerted media campaign stretching over nearly two decades to bring the others in the gang to justice.

6. Unlike the Lawrence case where the Daily Mail accused the five suspects of murder in 1997 (http://www.bl.uk/onlinegallery/features/frontpage/lawrence.h...) , no representative of the national press or broadcasters called any other member of the gang which murdered Richard a murderer.

7. The gang members who attacked Richard were older than those accused of attacking Stephen Lawrence.

8. Unlike the Lawrence murder, British politicians from the word go not only refused to adopt the tone of moral outrage which they routinely do when the death of Stephen Lawrence is discussed, but actively tried to play down the racist aspect. Considerable pressure was put on Richard’s parents at the time to go along with the usual Maoist pc line that they were not racist and so on. The local MP, Frank Dobson, was most notable for his silence.

Wed, 2012-01-04 17:53 — JuliaM (not verified)

"...but, as the Court of Appeal showed when quashing Dobson's acquittal, the courts can be robust in saying that trials should go ahead even when there has been bad publicity."

Yes, that worked so well, didn't it?