The United Bermuda Party last night lost its bid to reform the double jeopardy rule which prevents suspects from being tried twice for the same crime.

Members of the House of Assembly voted against the motion to reform the law by 16 votes to 13, following a six-hour emotive debate on the rights of victims and defendants.

Shadow Legislative Affairs spokesman John Barritt tabled the motion that the House recommend the law relating to double jeopardy be amended to grant the Court of Appeal the power to permit retrials after an acquittal or conviction where fresh and compelling evidence was found.

But despite the fact that two Government backbenchers spoke out in favour of the motion, against the Progressive Labour Party's official stance, the Opposition still lost the vote.

Mr. Barritt said in order to redress the present imbalance between the rights of prosecutors and defendants, Bermuda should introduce changes to the law, as recommended in the UK, to enable some serious cases, such as murder cases, to be retried if new evidence came to light.

At the moment, he said nobody can be tried twice for the same offence whether convicted or acquitted, no matter what the offence, including murder.

He said: “We say the rule bears reexamination if for no other season of fairness. If a person is convicted and subsequent new evidence comes to light that suggests innocence, why shouldn't there be a retrial and, if warranted, an acquittal?

“That seems fair. If, on the other hand, a person is acquitted and subsequent new evidence comes to light that suggests otherwise, why shouldn't there be a retrial. Fair is fair.”

But Mr. Barritt said in the present system, there was no right of appeal for prosecutors if they believed a Judge had wrongly acquitted a defendant.

“Why shouldn't that decision of a judge, like any other, be subject to appeal?, he added.

“The review by a Court of Appeal is there to not only ensure justice has been done or is seen to be done, but to keep the entire system of justice, of which the judiciary is a part, accountable and transparent.

“Our system of justice depends not just on results, and the right results, but on a system that seems to work and is fair in every respect, and one which warrants both our confidence and our respect.

“Why shouldn't we, why shouldn't our Government, pursue this principle of fairness. Do the people of this Country not at least deserve a review of the rule against double jeopardy?”

Mr. Barritt cited the Rebecca Middleton murder in Bermuda in 1996, of which no one has still been convicted, and the racially-motivated Stephen Lawrence murder in England in 1993, as prime examples of where changes to the double jeopardy rule could play a part.

And he said that if DNA can subsequently acquit the convicted, why can Bermuda not create the opportunity so that DNA can convict where there has been an acquittal?

“What interest, whose interest, are we seeking to preserve by denying this opportunity?, he asked.

“The wrongly acquitted? And why? Shouldn't our focus be on justice? On bringing the guilty to account? Isn't that a part of justice.?”

Mr. Barritt also outlined arguments against the rule which prohibits double jeopardy, such as the right of an accused to be free from “stress and anxiety” of further prosecution, and the need to protect the financial integrity of families of the accused.

“Can we be serious about such objections when faced with new and compelling evidence? ”, he asked.

“Hardly. That's only looking at one end of the telescope.”

He stressed that retrials could be ruled out if the evidence could have been presented at the original trial.

And he said it should be left to the judges to decide how much weight to attach to confessions. Mr. Barritt argued that the changes should be retrospective, saying it was about fairness. “The (UK) Law Reform Committee has shown us the way,” he said, before asking his colleagues on the Government side not to oppose the motion because it originated with the Opposition.

“What we are talking about transcends party politics.”

But Attorney General Dame Lois Browne-Evans, leading the charge against the motion, said that it was brought as a “political ploy”.

She said Mr. Barritt could have written to her to ask that Bermuda's Law Reform Committee study the issue. Then it might have had a different result.

And she reflected on her own career as one of the leading criminal defence lawyers of her time to illustrate her argument that, since the Criminal Code came into effect in 1905, people's rights had been steadily whittled away.

“In every conviction there are two sides - none of us can say we were right or we were wrong,” she said.

Final judgment belongs to God, Dame Lois added. “We can do what we like in the courts but it must be said there have been miscarriages of justice.

“You can always stir up the community and cry out for changes.”

But she warned that when that happened, justice risked being undermined.

“Don't mix new evidence with scientific evidence,” Dame Lois said, recalling a trial in which she successfully invoked a defence of diminished responsibility.

“I had the beautiful occasion of using that principle in a court here.”

But when the jury recommended mercy, a petition was circulated by a member of Parliament to hang the man and his advocates had to launch a counterpetition which said the jury's verdict should be respected, she said.

With about 500 signatures, “Government set a date for hanging. Our 3,000 had to go to the Queen of England. That's when science was accepted”, she said.

Former Assistant Police Commissioner and Government backbencher Wayne Perinchief said he believed in the principal of the motion, but did not agree with the wording of it.

However, he did not table an amendment, as prompted to do by the Opposition. When it came to voting, he abstained.

He said: “In this situation, we are not looking for winners or losers. We are not looking to score points, but to fairly consider the matter of justice and law reform in this country.

“While we all get emotional by these situations, I tend to lean towards the right and take up the side of the prosecution. By extension, I tend to defend victims' rights as a principal.

“I do believe victims should be considered in this position of double jeopardy, especially when we talk about new and compelling evidence. We can't remain static and simply adhere to a hard and fast rule.”

And although he said Bermuda would be “remiss” not to consider some law reforms pertaining to double jeopardy, he could not support the motion.

He said: “I believe there should be some exception to the rule, but I don't support the motion as it is drafted.”

Government backbencher Stanley Morton said he believed the issue was of significance but believed it should not be “rushed through”.

He suggested the matter be left for Bermuda's Law Reforms Committee to discuss at a later date. And he said that too many people in Bermuda, particularly the older generations, remembered too easily the wrongs of the judicial system in the past, when black men were convicted without cause, to feel comfortable with changes to the double jeopardy rule.

Government backbencher Delaey Robinson said he had believed Mr. Barritt was a liberal man until yesterday, and he said if people wanted to review the judicial system they should consider the fact that the prisons were largely filled with black males of African descent.

And he said he had no idea what Mr. Barritt was thinking when he brought the motion.

PLP backbencher Rev. Wilbur Lowe said he dreaded to think how he would feel if anything terrible happened to either of his children, but he said he put his faith in the Lord.

And he said even if people are not convicted on earth, they will get their just rewards when they meet the Lord.

He said: “That evil and wrongdoing does not go unpunished. God sits high but looks very low.”

But Shadow Labour and Home Affairs Minister Patricia Gordon-Pamplin said not everyone believed in the same religion, and considerations should be given to all.

She said: “There are those in our community who may prefer to see some kind of justice while they are here on earth.”

And she urged members of the Government to disregard which party had tabled the motion, and vote the way they wanted to, and not just in line with Government.

She said the issue was far too important to allow party politics and the direction of Government to get in the way.

And she said if Dame Lois conceded that she may have taken more notice had the suggestion been made in writing to her first, the issue was obviously important enough last night.