Thursday, September 14, 2006

"Bloody Hell" or "The Perils of an Unwritten Constitution"

The United Kingdom's Constitution is not actually a single written document. It is rather a collection of old gentlemens' agreements and written laws that carry no greater authority than do regularly passed statutes; constitutional law can be overturned by a mere act of parliament. This stems from the idea of "parliamentary sovereignty," which if you think about it, is ultimate "people power." If sovereignty comes from the people, as it purports to do in most constitutional democracies, the the will of the people should be able to trump a rather vaguely written instrument conceived of over 200 hundred years ago, right?

In practice, however, the idea that constitutional law can be overturned as easily as any other statute makes me, and I believe I speak on behalf of most other americans here, VERY uncomfortable.

Case in point. On September 12, 2006, a man confessed in open court (the "Old Bailey," to be exact) to having murdered a girl over 15 years ago. He is currently awaiting sentencing.

The man actually admitted to having murdered the girl six years ago, but charges could not be brought against him because he had already been tried and acquitted for the girl's murder in 1991. Similar to the prohibition in our Fifth Amendment, the UK prohibited "Double Jeopardy." Generally one cannot be charged and acquitted more than once.

Until now. Based on this one case, and because of the extremely determined family of the dead girl (understandably), British Parliament decided to toss the Double Jeopardy rule, originally enshrined in English law in 1187 (that's not a typo folks) out of the window in its "Criminal Justice Act of 2003." Well, to be fair, it only applies to about 30 odd crimes and just makes the exceptions to the rule a whole lot bigger. For instance, there needs to be "new" and "compelling" evidence. "New" does not, as it does here in our habeas statute, refer to evidence that could have been previously discovered. "New" means just that. Anything "new." So if a cop thinks of something "compelling" 10 or 15 years later, I guess the previously acquitted suspect is pretty well fucked.

To paraphrase our administration, this seems like an activist parliament. Throwing out an 800 year-old rule on criminal procedure based on one case? This seems like "result-oriented" thinking to me. In the long run, this might not make much of a difference. After all, there are a myriad of exceptions to the rule here, most of which escape me right now because I don't practice criminal law and I have forgotten to take my ginkgo biloba. I guess it's the principle of the thing. What if Congress could just get rid of one of the amendments? Does that frighten anyone else?

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