Justice is sometimes unfair

Dennis McGrory, who 47 years ago raped and murdered a 15-year-old girl, was arrested, charged and tried a few months later. The case was strictly circumstantial, and the jury cleared McGrory on the directions of a judge.

McGrory in 1975

Yet recently swabs from the victim’s body produced a DNA match. McGrory’s original verdict has been overturned. He has been retried, convicted and is now likely to spend the rest of his life in prison. This is the oldest double jeopardy case in England, and there’s jubilation all around.

Top policemen, judges, prosecutors and of course the victim’s family say triumphantly that justice has finally been done. Quite the opposite, I’d suggest.

I think justice has been abused, which in no way implies sympathy with that evil monster. It’s only fair that he should rot in jail, and even the gallows would be called for if that were still an option. But I’d argue that fair and just are two different things.  

Now, if you were to name one defining feature of a civilised Western polity, what would it be?

I’m sure many Britons and more Americans would vote for democracy. But, according to the influential American think tank Freedom House, as recently as in 1900 the world boasted not a single democracy.

Considering that Freedom House’s list of today’s 120-plus democracies includes Columbia and Venezuela, one suspects its criteria, which 19th century Britain and USA fail to satisfy, are purely formal. Still, it’s hard to insist that civilised polity is coextensive with democracy of universal suffrage.

What then? For me the answer is indisputable: the rule of just law. That alone serves as the reliable hallmark of a civilised country, which 19th century Britain and USA were, and today’s Venezuela and Columbia aren’t.

The Anglosphere, which is to say Britain, her former colonies and territories, bases its jurisprudence on the English Common Law. That, as any schoolchild knows, is based on a careful accumulation of precedents over centuries.

The precedents form the flesh of the English Common Law, but no body can live by flesh alone. It requires a skeletal structure holding the flesh together. And that is provided by several ancient principles that until recently were held to be sacrosanct and immutable.

One of them was the defendant’s right to keep silent and refuse to give self-incriminating evidence. Exercising that right wasn’t to be taken as an ipso facto admission of guilt.

Notice that I’m using the past tense here. For Margaret Thatcher’s government stipulated an exception to that principle in cases of terrorist offences.

I argued at the time and still maintain today that this did more harm to society than any terrorist bomb ever could. The skeleton of our justice lost a load-bearing bone, leaving much flesh saggy and unattached.

I’m not suggesting that legal casuistry should act as a suicide pact. On the contrary, when the lives of His Majesty’s subjects are at stake, I wouldn’t be horrified by any extra-judicial protective measures the government might be compelled to take. But subverting due process at trial should be off limits.

If Thatcher’s government broke one bone, Blair’s vandalism took a sledgehammer to the very spine of Britain’s ancient constitution. And one of the most vicious blows struck at the double jeopardy principle going back 800 years.

The Criminal Justice Act of 2003 stated that a defendant convicted of a serious crime could be tried again for the same crime if corroborative evidence of his guilt came to light. This is what put McGrory behind bars to the accompaniment of hosannas from all the expected quarters.

A typical sample came from Acting Detective Superintendent Rebecca Reeves, who said: “This was an extremely brutal attack on a young girl and my thoughts are with her family, with her siblings and the other members of her family who are still alive today. I hope that finally, the outcome at court has brought them some element of comfort.”

A beautiful sentiment, that, but not one I’d like to hear from a top law-enforcement officer. This, however, is a recurrent motif in all such cases: finally, the victim’s family can get justice and ‘closure’.

Much as I sympathise with everybody who has lost a relation to a brutal crime, this isn’t about a family getting closure. That sort of thing is the domain of vendetta, the rough justice of seeking vengeance on a murderer.

Admittedly, should something like that happen to someone close to my heart, taking the law in my own hands would be the first thought to cross my mind. This is a normal human impulse, and one I’m not entirely sure I’d be able to resist.

But that’s not what we are talking about. For, in a country ruled by just law, it’s not just the victim’s family that’s wronged by a murder, but society at large. That’s why indictments are passed down by the Crown in Britain and the People in the US — not by a Mr and Mrs John Doe.

Much as our hearts go to the victim’s family, it’s above all the whole country that has suffered egregious damage. Murder sends destructive seismic waves throughout society, and their amplitude can only be attenuated by justice done.

“Above all” are the operative words in the paragraph above. In criminal cases the collective interests of society take precedence over any individual grievances, no matter how agonising.

And these collective interests are better served by keeping the skeleton of justice intact even at the cost of letting the odd monster off the hook. For, if history teaches anything at all (which it probably doesn’t), it’s that any crack in the edifice of justice will continue to widen ad infinitum.

Give constitutional vandals an inch, and they’ll eventually take a mile. Before we know it, the sage laws organically developed over centuries will no longer be there to protect us.

In fact, it’s hard not to notice that most new laws passed over recent decades protect not so much the individual against the state as the state against the individual. And our state increasingly allies itself with the ethos of lachrymose, touchy-feely sentimentality, that simulacrum of sentiment and replacement for thought.

I just wish those modern vandals left the English Common Law alone. Take that away, and the line separating Britain from, well, Venezuela and Columbia will become so blurred as to be unnoticeable. And the climate is much better there. 

8 thoughts on “Justice is sometimes unfair”

  1. Why exactly is it bad for ‘society’ if a man (or woman) can be tried twice for the same crime? Supposedly, Western civilisation values the truth. Why cling to a law established many centuries prior to the advent of DNA testing?

    1. By the same token, why is it innocent until proven guilty? Or proof beyond resonable doubt? Or habeas corpus? All such principles have been developed to protect the innocent individual – even at the cost of letting the odd guilty one go free.

    2. Kings of yore that ruled in a despotic manner would take opposition whoever that would be and try them repeatedly under specious charges until they could finally find a compliant jury that would convict a person. Even if the accused was found innocent over and over it did not matter you would have to endure torment that would be an intimidation toward you and others.

      Similar is bail. Again the despotic kings of the time before the Magna Carta would arrest a person and hold him 9 to 10 years in prison before trial. Without bail even if the accused was found innocent at trial 9 to 10 years had been taken away from you a very strong intimidating factor against those persons that were in opposition to the despotic king.

  2. I believe this case is a result of the Stephen Lawrence case from decades ago now it was decided that double jeopardy had to be done away with about 800 years of English tradition gone with little if any protest

    Double jeopardy too was done away with in the United states with the Civil Rights Act in 1964 you can now be tried for state charges and federal charges for the same crime convicted and sent away and sentenced under both jurisdictions

    Extreme cases make for bad law and for bad policy also regardless if the man is innocent or guilty double jeopardy is too important of a thing to give away

  3. It seems to me that the very fact that our Common Law is ancient is the reason it’s under attack. We are living in a version of Pol Pot’s Year Zero. The difference is that we are condemned not to die to but to live on, in ever increasing horror.

    Of course, in this Advent season we have always prayed and sung, “Veni, veni, Emmanuel,” remembering our Lord’s First Coming in humility and looking forward to His Second Coming in glory, but every year nowadays the desire for this monstrously odious world to be brought to an end increases, as every worldly hope diminishes.

    In that spirit, Mr Boot, I wish you and all my fellow readers of your blog a Merry Christmas!

    1. Thank you, and a very Merry Christmas to you too. I share your sentiments entirely, but it’s only His Second Coming that’ll put an end to this world. Until then we have to keep doing our best – and pray for His.

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