What happens if a person is acquitted of murder but incontrovertible evidence subsequently, emerges that the person did in fact commit the crime?

That, in essence, was the question that Opposition MP John Barritt posed to the House of Assembly last Friday. At the end of a lengthy debate, it was defeated in a 16-13 vote with one Government MP, Dale Butler, voting for the motion.

Mr. Barritt's motion would have had the effect of recommending that double jeopardy, whereby a person convicted of crime cannot be retried for the same offence, could be overturned in murder cases if the Court of Appeal felt that compelling new evidence against the accused person had been presented.

It goes without saying that changes to long-standing principles like double jeopardy should only be taken after careful consideration and wide debate.

The principle makes great sense; without it, prosecutors would be able to try and re-try people, causing them months, if not years, of agony for crimes for which they have already been acquitted by a jury of their peers.

Bermuda has seen examples of something like this already, most recently in the case of Clifton Hopeton Morrison, who was the subject of several aborted Supreme Court trials as a result of hung juries, absentee jurors and the like. In Mr. Morrison's case, the Court of Appeal in effect ruled that he had been through enough already and another trial would have been cruel and unusual punishment. On that basis, he was set free.

But Bermuda has also seen acquittals (and convictions) of people where subsequent evidence would suggest that the truth, and justice, had not been served. That cannot be right either.

On that basis, double jeopardy should be reviewed, especially when modern science can secure evidence that is virtually irrefutable. Past miscarriages of justice have been righted by the application of modern forensic science. If the guilty are finally punished — as has occurred in several civil rights cases in the US recently — or the innocent freed, then that must be to the good.

Nor was Mr. Barritt's proposal especially radical. He suggested that in murder cases, and possibly some serious sexual assaults, the Court of Appeal should have the right to order a retrial if compelling evidence was presented.

The Court of Appeal does not have a record of taking judicial decisions on a whim as the Morrison case demonstrates; the odds that they would send an acquitted person back to trial without very compelling evidence are slight.

Attorney General Dame Lois Browne Evans said Mr. Barritt should have tried to have the matter referred to the Law Reform Committee where it could have received careful consideration.

Just such a body should consider an issue of this kind. But Mr. Barritt may have feared that a referral before a House of Assembly debate could have seen it buried. Indeed, Dame Lois has known about this motion for months. Why did she not make such a recommendation before now — or refer the matter to the committee herself?

Unfortunately, the Government, in rejecting the motion, sends a message to the public that it will protect the rights if the accused even when there is strong evidence of their guilt.

That is a message that clearly did not sit well with Mr. Butler, or with Wayne Perinchief and possibly with some of the other six Government MPs who did not vote.

Mr. Butler and Mr. Perinchief are on the right wing of the PLP on law and order issues. But they also appeal to the middle of the road swing voters who delivered the PLP to Government in the last Election.

If these MPs are unhappy with the PLP leadership on issues of this kind, then it may be that those key swing voters will be as well.