Author: Felicity Gerry
04 Jan 2012 | 12:27
"Stephen Lawrence lived for 18 years, 7 months and 9 days. It took 18 years, 8 months and 12 days to bring his killers to justice".
The newspapers have been full of headlines and Twitter full of posts such as the one above by @ColAdam. Everyone hopes that the Lawrence family can now take time to grieve. This has been an emotional and life-changing experience for many, and the changes brought about by the campaign to convict Stephen's killers have fundamentally altered our criminal justice system. In the lead-up to the sentencing of Gary Dobson and David Norris, five questions seemed to vex the public:
1. Why has it taken so long?
2. How can such small amounts of DNA convict people?
3. Why didn't the jury know about the defendants' violent past?
4. Can the parents of the defendants who provided an alibi be prosecuted for perjury?
5. How can the other killers be brought to justice?
The answers to these questions are not always straightforward, but depend on an understanding of the difference between suspicion and proof. It is important to remember that criminal trials are an unemotional and clinical examination of the evidence. During his summing up, Mr Justice Treacy directed the jury to put aside any emotion. Stephen Lawrence died at the hands of knife-wielding racist thugs who attacked him for no other reason than the colour of his skin. It is hard not to be emotional about such a murder but, at the same time, it is important for justice that this trial proceeded in the same way as every other, to ensure that any conviction would be safe.
In a sense, we should be glad that verdicts were reached after the prosecution were able to present relevant evidence and the defence enabled to test that evidence, leaving a jury of ordinary people to reach common sense conclusions. Leaping to conclusions or making assumptions is not what a court of law is for.
The first task in any prosecution such as this, where a defendant raises alibi, is to prove presence at the scene. Blunders by the police in the original investigation meant that no identification evidence was available. Witnesses who no doubt had useful information refused to come forward. An inquiry was able to identify prime suspects but there was no apparent proof.
It follows that for many years there was no reliable evidence that the defendants were present. It is substantially for this reason that no public prosecution was brought and the private prosecution failed. It took a change in the law to allow for one defendant to be tried having been previously acquitted. The Court of Appeal granted an application by the prosecution in 2011 to try Gary Dobson again on the basis that "jurisdiction... is concerned with the question whether there should be a retrial because the acquittal is transparently wrong and is damaging to the criminal justice system". Court listing and time taken to hear complex expert evidence led to a six-week trial concluding in 2012.
In the end this was a circumstantial evidence case as there was no direct evidence of identification. That a small amount of Stephen Lawrence's blood was found in recent scientific re-testing of the defendant's clothing came from an advance in science which was not available at the time of the killing.
Although the DNA evidence was crucial, it was not the only evidence. Also found in evidence bags and on clothes relating to Dobson and Norris was hair from Stephen Lawrence and fibres from his clothes. Add to this evidence that Dobson and Norris were knife-wielding racists, and after many years there was sufficient evidence to put them on trial for murder.
A circumstantial evidence case is a bit like fishing: a net may be full of holes but you can still catch a fish. Criminal trials are not always about conclusive proof but about placing sufficient evidence before a jury to make them sure the right men are in the dock.
The bad character of a defendant can form part of a criminal trial where it is relevant. In this trial, footage of racist rants and knife waving were plainly relevant to the question of whether it was more likely than not that these defendants would be involved in the type of murder for which Stephen Lawrence was the victim and his friend had such a narrow escape.
However, that the defendants may or may not have been involved in other similar incidents, while technically relevant, would have meant that an already complicated trial would get bogged down in satellite litigation. To rely on unproven allegations would have meant that the prosecution would have to call witnesses to those other unproved events and also ask the jury to reach decisions about what happened there too before it could be relied on as evidence of bad character.
The strength of the racist video footage was enough. Involvement in other violent or racist crimes is something that a judge can take into account when sentencing, leaving a jury to concentrate on the job in hand.
Those witnesses who gave evidence for the defence that Dobson or Norris were, or may have been, at home have been proved to be liars: their evidence was not accepted by the jury who were able to assess inconsistencies in the defence evidence and the changing accounts each defendant has given over the years. Again, technically, if witnesses have lied on oath, the Crown Prosecution Service will consider whether to mount a further prosecution of other family members. However, to do so would risk undermining the Lawrence trial verdict if the defence witnesses claimed they were telling the truth. The same ground would have to be raked over to demonstrate the lies. The public interest would probably be best served by targeting the killers and not the hangers-on.
Pathological evidence at the trial demonstrated that Stephen Lawrence was stabbed whilst standing then again when on the floor. From this can be inferred an intention by the group to cause serious harm and anyone in the group will be at risk of conviction, like Norris and Dobson, on the basis of principles of joint enterprise. It is well known that other members of the group that took part in the murder of Stephen Lawrence are still outstanding. Retrial after conviction for Dobson was possible on new and compelling scientific evidence. It follows that no such evidence is available at the moment in relation to other suspects, although there may one day be witness evidence available of confession or disposal of relevant exhibits.
As to what evidence may be available in the future it is hard to speculate, so while the investigation remains open then those suspected will not necessarily rest easy. The police simply have to remember to cast the net as wide as is sensible on the available information to prevent further mistakes. The public and the media have to recognise that a courtroom cannot be used to prove a suspicion without reliable evidence.
The publicity in such cases is always high, and it cannot be restricted too far as otherwise there would be a 'get out of jail card free' for the most notorious criminals. In the end, it is no coincidence that the old system changed to allow for the admission of modern evidence, but a bit of old-fashioned witness evidence would probably resolve the matter once and for all - although let's hope it doesn't take another 18 years.
Click here for the sentencing remarks of Mr Justice Treacy in R v Dobson and Norris.
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