This arcane scratch of law and crumb of melancholy history came to mind, reading the Scottish Government’s remarks promising an imminent consultation on reforming “double jeopardy”, or to be more Scots about it, the rules on having “tholed your assize”. For those of you with a horror for such cavilling and disputatious legalisms as are sure to follow, further to the reference to Peter Manuel above, I found this charming, flinty little 1997 documentary entitled Hanging With Frank which is a portrait of Barlinnie prison’s “execution chamber and a man that worked there in the 50’s”. Frank is a character, the dignified embodiment of a particular sort of excellence, full of workman’s virtue and pride in his labours, however dismal and morally questionable they may appear to those of us opposed to capital punishment. If you’ve a quarter hour to spare, its an interesting little window into a spent social world which has now collapsed into itself. For those of you with hath stomach to this fight of legal detail, lay on!
The Scottish Law Commission’s Report on Double Jeopardy proved a comparatively indeterminate enterprise. Kenny MacAskill’s news release is full of familiar (and largely fatuous) rationalising metaphors, the blubbery Whiggish stuff trotted out whenever law reform is contemplated “… updated for the 21st Century… modernising … fit for the 21st Century … in this day and age … clear direction of travel … reform needed…” What is broadly proposed is to “keep” the rule, but introduce exceptions, sanctioning fresh re-prosecution. “Can’t be retried” to be replaced with a “can’t be retried unless…” The consultation is on the exact scope of this ‘unless’. Some potentially significant language here. Quoth MacAskill, it shouldn’t be possible to gloat about your guilty post-acquittal. Nor should we constrain ourselves where “new evidence emerges which shows the original ruling was fundamentally flawed.” I assume he has in mind here, the subsequent imaginary case he alludes to – where tampering, corruption or intimidation seem to be implicated in an acquittal. He says that “it should be possible to have a second trial”.
Notice the language. Will this mean some sort of restriction on the exception, to one new proceeding? What about re-trying a retrial based on new evidence not available at the first retrial? We might be talking here, not about second trials, but thirds, fourths, fifths. Equally, what about evidence which is not lead at the first trial. We can talk about ‘evidence coming to light’ – but which light is it? If the prosecution have a piece of evidence but don’t enter it into evidence in the first trial, can this be thought of as ‘coming to light’? Could it? Should it? There is no specific limitation mentioned on types of offence where having tholed your assize – you would be faced with another. Should retrial, would retrial be available for all cases of acquittal, if one of the exceptions envisaged are made out?
Reference is made to the World’s End Murders. Its important not to let our critical engagement with the proposal become captured solely and wholly by that particular incidence. What about more minor offences? Moreover, detail is low on what the decision-making process would be in terms of commencing such re-prosecutions. Presumably, some judicial permission to reopen proceedings, based on ‘new evidence’, or a confession. The idea of a ‘new confession’ is also complicated, since the bare phrase “I did it” doesn’t necessary denote a confession for the purposes of the criminal law. Law’s idea of guilt and that of the more general moral discourse are certainly connected – but are ultimately separable, one from the other. Would you re-open proceedings and see how the chips fell? A final thought. What about the charge? We can talk about a second trial – but presumably a new indictment could contain a range of alternative offences, perhaps different from the first offences lodged in trial 1. Would this be sanctioned, or would the ‘repeat’ trial have less liberty to change the terms of the indictment? Or if the first trial produces mixed verdicts on more than one charge – some guilty, some not guilty – how to weed out those charges which have been tholed from those we might rethole in new criminal proceedings. This last point is largely a definitional anxiety. But one which we are inevitably going to contend with. Put in short, the proposed reforms (and questions for consultation between 22nd of March and the 14th of June) are the following...
* Whether consultees agree that there should be a new evidence exception
* The test to be applied in assessing new evidence
* What offences a new evidence exception should cover
* Whether a new evidence exception should apply retrospectively.
At least the Cabinet Secretary is making no bones about his own inclinations here, saying “we are minded to legislate at the earliest opportunity’. All of the questions I pose have answers, albeit potentially complex ones. The devil (or the angel) will be in the details. I'll be largely reserving judgement until we've got clearer answers to these questions.