The recent trial of Gary Dobson and David Norris for the racist murder of Stephen Lawrence was significant for a variety of reasons. This article will look at some of the legal aspects.
In 1993 in Eltham, South East London, Stephen Lawrence, a young black man, was fatally stabbed while waiting for a bus with a friend, Duwayne Brooks. The gang of youths that stabbed him, known racists, included Dobson and Norris and three others: Neil and Jamie Acourt and Luke Knight. The police investigation was widely criticised: first aid was not administered, Duwayne Brooks was treated as a suspect, leads and intelligence were not promptly followed up, the five named suspects were not arrested straightaway, valuable forensic evidence was lost etc. The case had taken on a political and social dimension. A public enquiry, which produced the Macpherson Report, described the police as “institutionally racist” and is considered a watershed in British policing notwithstanding the fact that the police force continues to manifest racist attitudes. After two police investigations, the CPS concluded that there was insufficient admissible evidence to found a prosecution against any of the five. Stephen’s parents launched a private prosecution of all five but this too came to nothing when the only evidence connecting any of them to the murder was deemed flawed. Due to lack of evidence Jamie Acourt and David Norris were not tried. Neil Acourt, Luke Knight and Gary Dobson were, and all were acquitted at the direction of the trial judge because of the flawed evidence. It seemed that efforts to bring Stephen’s killers to justice had come to the end of the road.
However, during a review of the evidence in 2007, developments in forensic science since the earlier proceedings enabled a realistic prospect of conviction to emerge in respect of two of the original suspects: David Norris and Gary Dobson. David Norris had never been actually tried for the murder, so there was no difficulty in commencing proceedings against him. Gary Dobson, however, was in a different position. It had been a long-cherished principle of British justice that a person could not be tried twice for the same offence. This is known as the double jeopardy rule. The Criminal Justice Act 2003 has abrogated that rule in relation to certain offences, including murder. To try someone for murder after that person has been acquitted of that murder, the Court of Appeal must be satisfied that there is new and compelling evidence (section 78). That is to say, evidence which was not adduced in the earlier trial and which is reliable, substantial and highly probative in relation to the issue at stake. The court found that the new evidence about blood and fibres on clothing worn by Dobson satisfied s78 and that it was in the interests of justice to have a retrial (s79).
Readers are directed to the LCJ’s judgment, delivered on 18th May 2011, for more details: R v Dobson  EWCA Crim 1255.
The abrogation of the double jeopardy rule alarmed many: certainty of verdict, freedom from repeated remands, etc are considered sacrosanct. Rather than as a shift away from civil liberties, the new provisions can be better understood as a response to technological advances in forensic science and as a mechanism to correct failings in investigations.
The double jeopardy rule meant that the press had not worried about damaging any future trial by publishing details of the proceedings so far, along with speculation and gossip. In fact, even before the private prosecution, the Daily Mail had named all five suspects on the front page, challenging them to sue for libel. None of them did. Given that the names of the suspects have been common knowledge for years, a question mark hangs over whether or not Dobson and Norris could realistically have a fair trial: one where they are tried on the evidence in the trial, not on media reports and rumour. The courts have a discretion to stay proceedings where a Defendant cannot have a fair trial. Obviously the court decided that in this case they could. It remains to be seen whether they appeal on this ground.
Amongst the evidence adduced at the 2011 trial was covert DVD footage of four of the original suspects in 1994 at Dobson’s flat. (Jamie Acourt wasn’t there because he was remanded in custody on an unrelated matter.) It is chilling viewing: They are seen and heard using aggressively racist language, brandishing knives and making violent gestures. None of them are heard making any reference to the murder of Stephen Lawrence, but the footage shows what kind people they were at around the same time. Prior to the coming into force of the Criminal Justice Act 2003 such footage would not have been admissible; serving only to malign the characters of the Defendants. However, the 2003 Act radically altered the use the courts and juries can make of evidence of reprehensible conduct. It is now believed that both Defendants are appealing against their convictions on the ground that the footage, filmed about a year after the murder, was highly prejudicial, did not prove they were involved in Stephen’s murder, and should not have been admitted as evidence. To succeed at appeal, they will have to show that their convictions were “unsafe”.
The convictions of Dobson and Norris were greeted with enthusiasm by many as they had been prime suspects from the outset and it had looked for many years as though Stephen’s murder was going to go unpunished. Thus it is not surprising that their sentences left a bad taste in the mouth for some. Murder carries a mandatory life sentence and that is what both of these men received. There is a minimum term they must serve before the parole board will consider them for release which is set by the sentencing judge.
Notwithstanding that they were tried and convicted as adults, they fell to be sentenced as though they were the ages they were when the offence took place (under 18) and in accordance with the law as it then stood. Had they been sentenced today for a like murder committed when adult they would have received minimum tariffs in the region of 30 years apiece. In fact Dobson was given a minimum term of 15 years and two months and Norris was sentenced to a minimum term of 14 years and three months.
Treacy J, sentencing them on 4 January 2012, explains meticulously how he came to arrive at those sentences. R v Dobson & Norris 2012 WL 14586. The Attorney General has said that he will not seek a review of these sentences as, in the circumstances, they are not “unduly lenient” but are “within the appropriate range of sentences". No doubt a parole board will be very cautious about releasing them.
Not only has this trial and its outcome been one of the most eagerly awaited in recent times; it also shows us how some developments in criminal law and procedure operate in practice. Of course, it’s not over yet: There’s still a long way to go to improve police treatment of black people and the police have been urged to continue their investigations and see if any other suspects could be brought to trial. As for the appeals – complaints about adverse publicity and evidence of racist behaviour will not change the fact that new and compelling scientific evidence was available. To keep up to date with developments, go to www.bbc.co.uk/news , www.dailymail.co.uk/news
By Anne-Marie Critchley
Anne-Marie Critchley is a barrister and senior lecturer on the BPTC at The College of Law in London Bloomsbury.
Called to the Bar in 1999, she practised criminal law full-time for eight years before joining the College in 2007.