Ministers to support double jeopardy reform
3 Dec 09
Consultation likely after Commission recommendations criticised as "fudge"
Legislation to change the ancient "double jeopardy" rule of Scots law will be promoted "at the earliest practical opportunity", Justice Secretary Kenny MacAskill promised yesterday.
Mr MacAskill was speaking following the publication of the Scottish Law Commission's Report on Double Jeopardy, recommending reforms to the principle that no one should be tried for a crime of which they have previously been acquitted.
The report itself was criticised as a "fudge" by opposition politicians and victims' relatives in recommending that any change is not made retrospective – meaning that controversial acquittals in past cases will not be reopened.
That would include cases such as that of Angus Sinclair, whose acquittal in 2007 of the murder of two teenage girls, 30 years after their bodies were found, on the direction of the trial judge, directly led to the Commission being asked to review the law.
Split opinion
In its report the Commission recommends that the rule 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.
On the question of whether the law should be changed to allow retrials on the basis of new evidence, the Commission notes that there are strong arguments either way and makes no recommendation. But it provides a framework for such a change, should Parliament choose to go down that road.
If Parliament does decide to introduce the possibility of retrial, the Commission recommends
that it should be confined to the most serious offences – rape or murder – but that ministers
should be able to seek Parliament's consent to add further offences in the future.
Patrick Layden QC, lead Commissioner on the project, admitted that the Commission had been divided over whether new evidence could justify a retrial. He commented:
"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."
The report recommends that there should be no second trial for an offence which is more serious, or less serious, than the one for which a person has already been tried. But where a victim has died, that should be treated as a separate offence.
Public confidence
Conservative and Labour spokesmen both said the report was weak in not permitting past cases to be reopened; and Morain Scott, the father of one of the victims in the Sinclair case, said the recommendations fell far short of what was needed to give the public confidence in the ability of Scotland's criminal justice system to deliver justice.
However leading defence lawyers supported the double jeopardy principle as the rule was an important safeguard and any move towards retrials could lead to a presumption of guilt.
Mr MacAskill commented: "The SLC do not make a recommendation either way on the central question of whether there should be a general exception to the rule against double jeopardy where new evidence emerges after a trial. This is a particularly complex question which requires detailed consideration and may require consultation.
"However, there is a clear direction of travel and I want to ensure that Scotland has a double jeopardy law which is fit for the 21st century. I believe that Scotland's approach to double jeopardy should reflect the interests of justice and not just the accused.
"We will now fully assess the SLC report before responding, but the intention is to legislate at the earliest practicable opportunity, because change is needed and needed now."