In praise of ... tholing your assize

Usually, journalists’ attempts to relate issues which acutely involve the differences in the U.K. legal systems make me want to tug out my hair in clumps. Their tales muddled and muddling, one needn’t be a Scots legal nationalist to feel led astray under the tutelage of these media magisters juris. Misinformation generates false expectations (for example, notions that one has extensive rights to be tried by a jury), perpetuates misunderstandings of socially empowered systems and is, in general, not on.

Sometimes, these differences between our systems are profound, one potentially providing real lessons for the others and furnishing the argumentative with an accessible critique of unchewed orthodoxies. As Alex Massie has argued, the fact the assisting suicide as such is not illegal in Scotland rebuts any lazy case that simple repeal of the 1961 Suicide Act will result in a slew of grannies receiving single-ticket holidays to Switzerland. One area which the last week’s news which I wished to nudge under a blawgish lens is the information that three defendants - Ibrahim Savant, Arafat Waheed Khan, and Waheed Zaman - accused of conspiring to murder by means of combusting airlines will now face a third retrial on the conspiracy to murder charge.

Twenty-four jurors have already sat and listened to the evidence against the accused. Assuming that the announced intentions of the Department of Public Prosecution are carried out, that number shall rise to thirty-six shortly. So, why a retrial? The pat phrase is “the jury failed to reach a verdict”. What does this mean? In England and Wales, previously, verdicts required juror unanimity. These days, they work on the principle of majority verdicts – meaning that at least ten of the twelve jurors are willing to pronounce guilty or not guilty. For example, a trial in which nine were for acquittal and three for conviction would fail to reach a verdict, and the accused could be retried. The same would be true if the balance was in favour of conviction.

With this, we can strongly contrast the rules in Scotland where the three men discussed in the Telegraph would face no retrial – and where the 9-3 juror division imagined above (if proportionally expanded) would be sufficient to acquit the accused. In Scotland, we empanel juries of 15 persons, who convict on the basis of a simple majority of eight – any number short of this simply resulting in an acquittal. Whether the jury is divided on whether the accused is not guilty or the indictment is not proven has no differential impact on the disposal. The accused is free to go. Explanations for this difference tend to point to the differences in English and Welsh and Scots rules of evidence. As I’ve discussed in the particular circumstances of the soon-to-be case of H.M. Advocate v. Thomas Sheridan, in Scotland corroborated evidence is a legal necessity, while my understanding of the English position is that now, no such evidentiary strictures apply. Due to this differential in minimal standards of proof, the proposition runs, the English system requires further safeguards in what counts as a justifiable decision of the jury. A simple majority – and even for some old crustaceans, the phenomenon of 10/12 verdicts – would not be able to provide such a check. The symmetrical contention is that corroboration furnishes such a check in Scotland, and hence, decisions taken remain justifiable which are reached on the narrowest possible basis of eight jurors for conviction, seven jurors adamantly against.

If you hear about retrials in the Scottish context, these will typically been cases where a convicted person successfully appeals on the basis that the process by which they were convicted miscarried justice. In those circumstances, the appeal court can empower the Crown to instigate fresh proceedings. One example of this process is the case of Galbraith v. H.M. Advocate, which clarified in some measure how psychological insights into persistent spousal abuse affects the criminal responsibility of an individual – in this case Kim Galbraith – who kills their abuser. Moreover, the position of double jeopardy – or in the Scots legal terminology – tholing your assize - now differs across the British legal systems. In Scotland, the rule against multiple trials persists – despite arguments and objections by the Scots Tories – while in England, re-trying an acquittal is now a possibility. The options are explored in a lengthier and more scholarly way by the Scottish Law Commission, whose report on the subject was published at the beginning of 2009. How the Scottish Government responds remains to be seen.

For myself, it is difficult to avoid the impression that multiple retrials are a way for multiple prosecution chomps at low-hanging fruit – and a concerning infinite regress of legal actions till a jury produces the verdict the prosecution desires. In particular, the English phenomenon of a retrial following nine jurors voting to acquit and three jurors voting to convict seems to me highly problematic, whatever the niceties and evidentiary safeguards which are said to mandate it. Equally, for other incidental participants in the trial process, I’m sure that being called, then recalled and recalled again to relate the same evidence must be dreary – and in some cases, emotionally quite oppressive. Of course, the DPP need not determine that a case should be retried – but as I’ve argued before about the Lord Advocate and our own Procurator Fiscal service, whether or not a particular disposal seems merciful, just and proper, we should not have to rely on the discretionary good-will of a prosecutor if the end sought is basically just. That a good prosecutor makes a just decision is in an individual case, a cause of celebration, more broadly, that good prosecutor is the enemy of rigorous reform, precisely because he or she blunts the consciousness of the arbitrariness and tyranny of the office by their good offices.

While there are undoubtedly questions about new evidence furnishing prosecutors with new evidence about past trials, which undoubtedly tempt lawmakers to permit re-prosecution, even after an acquittal - the untholable assize represented by extensive prosecution and re-prosecution does not seem to me to be to the benefit of anyone. Legal processes should not come with a "reload" button, resurrecting the factual contentions of a failed case, especially when the prosecuting state has an exclusive clutch on the controls.