The Holyrood assizes...

Oral evidence continues at Stage 1 consideration of the Scottish Government's Double Jeopardy (Scotland) Bill, which proposes (1) to enshrine the principle of tholing your assize in statute (having been tried and acquitted, your judicial ordeal is over and the disposal is final) and (2) delineate clear exceptions which will allow acquitted individuals to be retried in Scotland under particular circumstances. I'm conscious that the issues raised by the Bill are simultaneously politically important and interesting - and often befuddlingly technical. No sane soul, consciousness unassailed by a legal education, can much care for the legal draftsman's style, which invites the reader to leap to and fro in a tangle of clauses and subsections. Its all too easy to trip up. Today, I thought I'd quickly summarise what the Bill proposes and emphasise one or two of the issues raised by learned lawyers in their submissions to Holyrood's Justice Committee. I've previously discussed the evidence of the Scottish Law Commissioner Patrick Layden QC, who informed the Committee that unlike the unsolved "cold cases" of telly cop dramas, in cases where the accused is acquitted, physical evidence is currently disposed of, destroyed, lost. The upshot of which being, practically speaking, that this reform will not allow new science to be applied to old physical evidence locked away in some police archive, where there has been an unsuccessful prosecution.

Summary of key sections of the Bill...

As currently drafted, these include "tainted acquittals" (§2), allowing re-prosecution for the same or similar offence - where the acquitted person or some other person has been convicted of an offence against the course of justice in relation to the trial - or where the Court is persuaded, on balance of probability, that an offence such as bribery or suborning perjury has taken place. It does not matter what offence the individual was acquitted of. Any competent charge could be retired, with the permission of the High Court, if the original trial is shown to have been "tainted" for the purposes of the Bill.

The most prominent proposal in the Bill is to introduce a "new evidence exception" (§4). In contradistinction to the "tainted acquittal" provision, this aspect of the Bill would only apply to a select series of offences. The draft Bill would empowers the Lord Advocate to apply to the High Court to set aside the acquittal and grant authority to bring a new prosecution. In considering whether to do so, the Bill requires the High Court to consider the following on any "new evidence" (§4(3)):

(a) the case against the accused is strengthened substantially by the new evidence,
(b) the new evidence was not available, and could not with the exercise of reasonable
diligence have been made available, at the trial in respect of the original offence,
(c) on the new evidence and the evidence which was led at that trial, it is highly likely that a reasonable jury properly instructed would have convicted the person of—
(i) the original offence, or
(ii) a relevant offence (had, in the case of an offence mentioned in subsection (2)(b), such an offence been charged), and
(d) it is in the interests of justice to do so.

Criticised by some as being unnecessary given the foregoing general section, nevertheless the draft Bill picks out admissions of guilt after an acquittal in largely similar terms. Remember, the proposed Bill limits the availability of any new evidence re-prosecution to a selection of offences. In this respect, MacAskill has largely copied the existing model in England, albeit with different offences listed. They are as follows:

Offences against the person
Murder; Culpable homicide

Genocide etc.
Genocide (s1 of the International Criminal Court (Scotland) Act 2001); A crime against humanity (ibid); A war crime (ibid).

Sexual offences: common law
Rape; clandestine injury to women; abduction of a woman with intent to rape; assault with intent to rape or ravish; indecent assault; Lewd, indecent or libidinous practice or behaviour; Sodomy.

Sexual offences: offences under the Sexual Offences (Scotland) Act 2009
Rape; Sexual assault by penetration; Sexual assault; Rape of a young child; Sexual assault on a young child by penetration; Sexual assault on a young child; Causing a young child to participate in a sexual activity.

Other sexual offences
Incest; Sexual intercourse with a stepchild; Unlawful sexual intercourse with a girl under 13

As it is currently drafted, the Bill would permit the Government of the day to add or delete offences from this list, by subordinate legislation (§4(7)).

Justice Committee evidence...

Yesterday, the Lord Justice Clerk, Lord Gill, gave evidence to Baillie Bill Aitken's parliamentary Committee, which heard last week from Richard Keen QC, Dean of the Faculty of Advocates - Alan McCreadie, deputy director of law reform with the Law Society of Scotland - John Scott, former chair of the Scottish Human Rights Centre - and Shelagh McCall, a commissioner in the Scottish Commission for Human Rights.  Interesting remarks were made by a number of parties, particularly on the idea that this legislation should only apply to serious cases. 

But how to do it? The Government are proposing a list - but the list is potentially problematic, in that its present drafting might conceivable coverage comparatively minor issues, first prosecuted before a sheriff alone. Most offences in Scots criminal law are triable summarily (before a Sheriff sitting alone, with more limited sentencing powers) or on indictment (before a Sheriff sitting with a jury or before a Senator of the College of Justice and a jury in the High Court of Justiciary. Both have enhanced sentencing powers). Certain offences - such as murder, rape, treason - are traditional Pleas of the Crown and must be tried in the High Court. Unless you limit the list to these of potentially re-prosecutable offences to these charges - it is very difficult to abstractly to limit re-prosecution to serious cases. Any reference to assault would encompass a drive-by bruising from a flung bread roll. Any reference to fraud would include wry schemes netting the fraudster millions or only pennies. The point is that Scots law generally doesn't distinguish between seriousness at the level of offences, but on the forum chosen to prosecute, the sentencing powers of the forum - and the punishment imposed. This presents a real difficulty for the list-based approach the Government is adopting, even before one falls into a discussion about whether drug offences, robbery - and attempts - ought to be included.

As I understand Alan McCreadie's evidence - the Law Society have suggested a cunning wheeze to get around the problem. Why not, they argue, only permit a new evidence re-prosecution in individual cases where the acquitted person had been tried on indictment? Rather than scribble a list of qualifying offences - problematically open for the government to add and subtract from - primae facie this approach would only permit reprosecution in cases which the Crown Office and Procurator Fiscal have already identified as sufficiently serious to warrant proceeding on indictment, before a jury. Given the exceedingly small number of cases in Scotland tried in this way - off the top of my head, a scanty 5% of total trials - it would significantly limit the ambit of the reform.

I do wonder about more extensive indictments, however, where a case was brought in the High Court on the basis of a serious offence - with a number of more minor infractions tacked on. After being acquitted on all counts, the Crown could then recall the acquittal and reactivate (with "new evidence" and the High Court's consent) the associated more minor offences, which in themselves may have only warranted summary proceedings before a Sheriff.  What this emphasises, as much as anything else, is that a measure of arbitrariness and unpredictability is inherent in the proposed reform. So too is a familiar tendency of Scottish law reform - pass sweeping new offences or devolve broad powers - and then trust in the Crown Office not to use them as drafted. This exchange been Tyrant Bill and Lord Gill exemplifies the attitude:

Lord Gill: "... Of course, you also have a considerable safeguard overhanging all of this, which is the position of the Lord Advocate, who exercises wise judgment in the public interest. The office of Lord Advocate is a considerable constitutional safeguard."

The Convener (Baillie Bill): "We are totally reliant on the Lord Advocate and her successors adopting an attitude towards the provisions that will ensure that they are used sparingly."

Lord Gill: "Yes. That is why, in this country, prosecutions are not conducted oppressively. The office of Lord Advocate is such that before any prosecution is launched, the public interest is carefully considered."

Its simple! Once we've over-criminalised great swathes of conduct and empowered our prosecutors to pick and choose who really deserves being thoroughly radished by public power - we have room to be just and persecute the deserving while delivering the meek and the "blameless". Its a perverse mode of legislation, but one which our Parliament is frightfully keen on.