A serious pain in the thole...

Thursday was a justice day in Holyrood. The Justice Committee having published its stage 1 report on the Government's Double Jeopardy (Scotland) Bill, its general principles were debated and voted on by our tribunes. Regrettably, Richard Baker continues to give the erroneous impression that the Bill , if passed, will likely re-open the World's End Murders case. He said, yesterday:

Richard Baker: "A key debate following the publication of the Scottish Law Commission’s report on double jeopardy was on the issue of retrospective application and we are pleased that the bill will have retrospective effect. That is right because prosecutors now have access to new technologies and techniques, such as DNA evidence, that can show proof of criminality even in cases that are many years old. In the previous debate, a number of us mentioned the collapse of the trial for the World’s End murders, and there can be no doubt that the change in the law is important for the families of Helen Scott and Christine Eadie and for other families who face similarly tragic circumstances."

As I have explained elsewhere before, in reality this is exceedingly unlikely, a point raised by the gallant Baillie:

Bill Aitken: "The new evidence would have to be evidence that was not available at the time of the original trial and could not reasonably have been expected to be available. That is a further protection. To refer to a point that Richard Baker raised and Stewart Stevenson subsequently made, I have difficulty in seeing how the World’s End case—Sinclair v Her Majesty’s Advocate—could be reprosecuted under those terms. However, that is an argument for another day."

I've mentioned some of the other major issues in the Bill before. Should its precepts be retrospective, allowing past acquittals to be reopened? As drafted, the Bill currently allows any offence to be retried if its commissioner subsequently admits their guilty ways, or if the original trial was "tainted" by corruption or interference. By contrast, the general new evidence exception is more limited. The government, copying the English approach, have appended a schedule of offences which could be retried.  All agree it should attach only to serious cases, but agreeing on the practical definition and measure of seriousness proves more difficult. Tory Convenor of the Justice Committee, Baillie Bill Aitken, summarised the controversies and proposals thus:

"The range of offences that are to be covered by the new-evidence exception also sparked a variety of views. The committee firmly agrees with the Scottish Government that the exception should be made applicable only to a limited number of very serious offences. The committee also recognises the concern of respondents such as the Law Society over why some offences are included while other offences of commensurate seriousness are not. The committee therefore questions whether there could ever be a single, fixed list that would adequately and appropriately lay out the scope of the exception. The committee is, therefore, open-minded about exploring the possibility of replacing the list in schedule 1 with an alternative mechanism for restricting exceptions to only the most serious of offences, which is the unanimous intention of all concerned. My view, for example, is that there could be a restriction whereby only offences that were originally indicted in the High Court would come under this particular category. Again, however, that matter can be discussed in the weeks ahead."

On this issue, Liberal Democrat Justice Spokesman, Robert Brown, argued:

"There is fairly broad agreement that the new evidence rule as a basis for a new trial should be limited to serious crimes, but I do not think that the cabinet secretary’s approach of listing crimes works very well; in particular, I cannot see how one can satisfactorily define sexual assaults by separating out serious ones from more minor ones. I urge the cabinet secretary to follow the committee’s suggestion and make the dividing line whether or not the case was prosecuted on indictment. I am less clear, though, as to whether the case in question should be on indictment in only the High Court or on indictment more generally; that requires to be bottomed out."

In contrast with the position in England, where so-called "either way" offences allow the accused to select the forum they are tried in, whether by a lay magistrates' bench or before a jury in the Crown Court, in Scotland selection of venue is within the discretion of the Procurator Fiscal. Generally speaking, this selection is understood to proceed on the basis of the sentencing powers of the respective Courts and apprehensions about the seriousness of the offence charged and punishment merited. A sheriff sitting alone has a more minor sentencing powers compared to another, sitting with a jury. That changes in those sentencing powers have implications for the distribution of Court business is reflected in changing official statistics.

What to make then, of this proposal to limit the new evidence exception to cases indicted in the High Court of Justiciary? How many cases might this conceivably effect? I didn't have far to look. Late last month, the Scottish Government published a bulletin in their Crime and Justice series, giving statistics on Criminal Proceedings in Scotland, 2009-10. It shows that last year (2009-10), a total of 120,772 people had a charge proved against them in Scottish courts. Of these, only 741 people were convicted in the High Court of Justiciary, amounting to roughly 0.6% of the total number of convictions that year. A further 4,213 people were convicted by Sheriffs sitting with juries, accounting for a slender 3.5% of the total. The remaining 115,801 convicted persons were tried by Sheriffs sitting alone, adjudicating summarily (65,419 or 54% of the total) and by lay justices of the peace (50,382 or 42% of the total). I should emphasise, these figures don't capture the total number of people actually tried, but record only those who were convicted. However, in a general sense they crisply and starkly capture the very minor role which the jury system plays in Scottish criminal justice overall.

Given double jeopardy's concern with those acquitted, what about folk acquitted in the High Court of Justiciary? Unfortunately, the statisticians have disaggregated the data by offences but not by offences and the Court proceeded in.  This is problematic, for example, because an assault is competently prosecuted both summarily (before judge alone) and on indictment (before jury and judge). Severity and aggravating factors will have implications for which judicial setting the Procurator Fiscal selects. We can make a few observations, however. Certain offences are known as pleas of the Crown and can only be competently prosecuted in the High Court of Justiciary. These include murder and rape. The statisticians use slightly different concepts (for example, they combine rape and attempted rape. The latter, if I recall aright, is not a plea of the Crown and as a result, can be competently prosecuted in Sheriff courts. Since this is a rough and ready calculation, we'll assume all were prosecuted in the High Court). Focussing on these offences, from last year's best estimates, 82% of those accused in homicide cases were convicted, with 14% being acquitted (6% not guilty, 8% not proven). In rape and attempted rape cases, 46% of those accused were convicted, with 32% not guilty and 19% not proven). In their indeterminate report on the subject, the Scottish Law Commission suggested that if there was to be a new evidence exception to the double jeopardy rule, it should be limited to these two offences.

Overall, government statisticians estimate that some 86% of all crimes prosecuted result in a conviction (as distinguished from their statistical term of "offences", denoting more minor matters). That fact, coordinated with the other information on the number of persons convicted in each venue, gives some flavour for the sorts of numbers which limiting the new evidence exception to cases where the acquitted person was originally tried on indictment would encompass, whether in the Sheriff courts or the High Court of Justiciary alone.