Double jeopardy again

The Scottish Law Commission Report on Double Jeopardy (part of the criminal law programme taken on by the SLC following the reference from the Scottish government after the World's End murder trial – on which see here) was published in early December (Scot Law Com no 218). The SLC has recommended the statutory restatement (and clarification) of the rule as well as recommending that it should not apply where the original trial has been corrupted, for instance by jury-rigging or intimidation of witnesses, or where the person acquitted has later admitted committing the offence.

As the report was prepared at a time when only four Commissioners were in place there is an unusual division as the Commission reached no decision on whether or not there should be a retrial if there was new evidence. However, the Commission did recommend that if Parliament did decide to introduce the possibility of retrial it should be confined only to the most serious offences – rape or murder (albeit with the possibility that Ministers could seek Parliament's consent to add further offences in the future).

The Commission recommended that any change in the law should only be for the future (taking into account that no consultee cited any case of an acquittal where there was new evidence which would justify a retrial and the concern that retrospective change would take away the present rights of acquitted persons).

The lead commissioner on the project, Patrick Layden QC, said,

"The rule against double jeopardy has protected the citizens of Scotland against repeated prosecutions for hundreds of years. Essentially, it prevents the state from running the criminal prosecution system on a "Heads we win; tails, let's play again until you lose" basis. So we are recommending that it should be kept, and put into legislation.

We have a division of opinion within the Commission on whether there should be a possibility of a retrial on the basis of new evidence. The arguments are difficult. It is important for decisions of the courts to be final. People who have been tried once should be able to get on with their lives without the possibility of further proceedings hanging over them. It would not be right to allow the state, with its large resources, to try, try and try again to get a conviction. And anyone who has been through the trauma of a criminal prosecution, and been found not guilty, should not have to go through that again. On the other hand, if there is genuinely new evidence, it is open to Parliament to take the view that justice demands another trial."

At the time the reference was made I wrote (in a post written by me subsequently adapted for an article in the Edinburgh Law Review, although posted under Professor MacQueen's name on this site) that,

"There is … a risk in carrying out law reform in such time pressured politically sensitive circumstances. … [T]he Commission – in considering legal policy – may not reach a result in accordance with political (and public) expectations."

Where there is political pressure the role of the Commission becomes difficult, and it could be argued a clearer steer on political decisions should be given to the Commission from the government allowing the Commission to work effectively within the political parameters and allow legal policy to be properly developed.

On publication of the report there was criticism from politicians and others, including Morain Scott, the father of Helen Scott, one of the victims in the World's End killings. He said,

"It is of extreme importance that the victims of crime and the Scottish public have complete confidence in the ability of Scotland's criminal justice system to deliver justice. In our opinion today's recommendations by the Scottish Law Commission fall far short of meeting these expectations. We are in complete agreement that it would be wrong to be allowed to persecute people indefinitely but the law has to be fit for purpose, and with the advances in science and technology we find it hard to believe that it is recommended that any proposed changes should not be applied retrospectively."

Soon after the government position was explained in a BBC Scotland interview with Justice Secretary Kenny MacAskill. He said,

"People who commit heinous crimes and for whatever reason closure does not occur, we owe it to the victims, to the families, to the communities to allow action to be taken. The decision about whether a case should be re-prosecuted and double jeopardy should be overturned will ultimately be a matter for law officers. But our view is that the law officers should have the right, and if it is retrospective, then so be it. The law officers will have our full support."

Mr MacAskill's view was welcomed by defence advocate Paul McBride QC who said,

"I'm delighted that the justice minister has decided to overturn the patently illogical recommendation from the Scottish Law Commission and follow the path preferred by all the other political parties as well as the public. If one thinks of rape cases involving children, rape cases involving adults, horrific murder cases, and new evidence of a compelling nature comes to light that wasn't available at the trial that demonstrates beyond any question the person is guilty, is it right as a society to say that persons should go free?"

It is expected legislation will be introduced with cross-party support in 2010.

[this blog post was contributed by Scott Wortley with no input from the general editor]