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
With this, we can strongly contrast the rules in
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
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.