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Commission publishes paper on double jeopardy

21 January 2009

The Scottish Law Commission is seeking views on the principle of double jeopardy and whether it should be changed after 800 years.

In a discussion paper published today, the Commission states that the rule, which prevents someone from being tried for the same crime twice, forms an essential part of the rights of the citizen in relation to the state, and points out that to abolish the rule completely would put the UK in breach of its international obligations.

The Commission was asked to examine the law after the collapse of the case against convicted murderer and rapist Angus Sinclair in the "World's End" trial. Sinclair had been accused of the murder of teenagers Helen Scott and Christine Eady more than 30 years ago but was acquitted when the trial judge upheld a submission of no case to answer.

Noting that there seems little prospect of further evidence becoming available in the Sinclair that was not already in the hands of the Crown at the trial, the Commission comments that nothing less than a complete abolition of the rule would permit a retrial of Sinclair.

It does however believe that a restatement of the law is needed because of existing areas of doubt and anomaly. Among the questions it poses are:

  • whether it should be possible to charge a different legal offence in a second trial arising from the same facts, for example rape and incest;
  • what should happen where an assault victim subsequently dies of their injuries;
  • what tests should be applied to verdicts by foreign courts;
  • if a general rule is retained, should there be exceptions where the earlier trial was tainted by offences against the course of justice, or where there is a subsequent confession by the accused, or where new evidence emerges.

Patrick Layden QC, the lead commissioner on the project, said the double jeopardy rule had been recognised in Scotland as a fundamental protection for the citizen against the state. However, it needed re-examining in the modern age.

Comments on the paper, which can be viewed through this link to the Commission's website, are invited by 17 April 2009.

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