Holyrood's last judgment...

It seems appropriate that the Scottish Parliament's last judgment will be to strip Scots criminal proceedings in the most serious cases of their ancient finality. The third Scottish Parliament will meet tomorrow for the last time. The Jabbereck and the Snark will trade their final, ritual blows. Our tribunes will tender their thanks to their erstwhile shepherd, Presiding Officer Alex Fergusson, before casting their votes at one o'clock in the third and final stage of the Double Jeopardy (Scotland) Bill. Several faces will be leaving their seats in the chamber for the last time. Done. Finished. Over. Go. Move. Shift. Such moments of change have their sadnesses and their green shoots. A parliament dissolved anticipates the parliament shortly to be formed. The heavy drumbeats of the election begin to sound more urgently.

Before being too beguiled by that beat, it is worth paying attention to the final stray crotchets of the parliamentary term and its last business. Opinion is divided on whether these Scottish developments on double jeopardy are virtuously sheep-like, a deliverer of the just, or a caprine-capricious mechanism to rob the acquitted of the security of having tholed their assize and escaped the lawful persecutions of the Crown. In the parliament, only the brace of Greenies are likely to oppose the Bill, which will otherwise be adopted by general acclaim. If you are new to the issue, and curious, the Scottish Parliament Information Centre (SPICe) have put together this brief stage 3 briefing report which sets out the new regime very neatly - and much more succinctly than my rather dispersed thoughts as the Bill has progressed. 

The proceedings have been extensively covered on this blog, most recently at stage 2, where I shared pious reflections on A Thole in Jeopardy. To condense the legislation's provisions, if you subsequently admit your guilt, or taint your first trial by jiggery-pokery, your acquittal can be set aside whatever offence you were acquitted of, whatever court you were tried in. If, by contrast, new evidence emerges against you after you have been acquitted, you will only be able to be retried if your first trial took place in the High Court of Justiciary. If you are acquitted by a sheriff, or a sheriff sitting with a jury, that finding is final and the general double jeopardy rule applies. There are a number of other qualifying sections and clauses on this - most critically that in each and every case, the High Court of Justiciary must agree to set aside an acquittal if a re-trial is to occur. However, those are the basic features of the new legislation. As I noted in A Thole in Jeopardy, the final Act will cover a much greater number of offences than the Bill first introduced by Kenny MacAskill, but the number of cases it will conceivably apply to is smaller. These new exceptions to the double jeopardy rule will be retrospective, applying to past acquittals. However, as a Scottish Law Commissioner pointed out, it has not been the practice to retain evidence where the accused person has been acquitted of an offence. He told the Justice Committee:

Patrick Layden QC: "The reason for [retrospective application of a new evidence exception to the "double jeopardy" rule], we are told, is that this is the area in which it is said that the police and prosecutors may be able to reopen cases in the light of advances in technology. People talk about DNA and so on. Where physical evidence is retained, it can be re-examined in the light of scientific advances. When DNA became a useable technology, it was possible to re-examine blood and other samples in unsolved cases and compare the results against the developing national database. That was how Angus Sinclair was convicted in 2001 of the rape and murder of Mary Gallacher, which happened as long ago as 1978. It is an extremely useful technology.

When a crime is unsolved and there has been no trial, the police keep the physical evidence as a matter of routine so that it is available if and when more evidence more turns up. However, we checked with the Crown Office, which confirmed that where there has been a trial and the accused has been acquitted, as a matter of routine the physical evidence is thrown away. There is no point in keeping it. Therefore, it does not matter what scientific advances there may be. Where someone has been acquitted, no physical samples are available for testing. Making the exception retrospective will have no practical effect. No doubt the Crown Office will be able to tell the committee how it intends to deal with that matter in future, but as far as the past is concerned, there is no evidence. Not only is there a strong, principled objection to making the legislation retrospective, but retrospection will not achieve any noticeable practical effect.

We raised in our discussion paper the question whether anyone knew of any cases in Scotland that might be reopened if the legislation were passed and made retrospective. The police, the prosecutors and the judges were not able to think of a single example. So far as I am aware, that remains the position today."

As I have discussed on two previous occasions, while the new evidence exception might be used to re-prosecute Angus Sinclair for the so-called World's End Murders case, this looks extremely unlikely, calling for new evidence to materialise which "substantially strengthens" the case against the accused and critically, new evidence that "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" - amongst other things. In Sinclair's case, this seems like a very long shot, this long after the horrible events took place. Whether these changes are good or bad - we should be exceedingly skeptical about ministerial assurances that this new Act will be sparingly applied in all time coming. The terms of the Act certainly give the High Court of Justiciary a mediating role, if the Lord Advocate determined to pursue an aggressive and much more wide-ranging re-trial policy than policy-makers intend. For my part, I don't anticipate a slew of cases in the short to medium term. However, at its most simple, this is an Act to empower public officials to pursue particular courses of action. The bare text of the legislation does not speak to how they exercise those powers, nor how regularly they might seek to rely on its sections. The "reasonable diligence" qualification to the new evidence exception clearly seeks to ensure that the authorities do not wilfully truncate their investigations, just in case their preferred suspect is acquitted at trial. By limiting the exception only to evidence subsequently discovered beyond reasonable diligence, any temptation to keep the possibility of a future double jeopardy exception being applied in the backs of their minds, to get two chomps at the cherry, should be discouraged.

The Double Jeopardy (Scotland) Act will make what was once impossible possible. It will doubtlessly see greater substantial justice done in particular cases and for that reason, I've come around to a more supportive position. However, I still have outstanding concerns about the sorts of cases it might apply to. For example, under the new provisions, any High Court acquittal can be retried, whatever offence was alleged. Had the Satsuma Socialist been on more Ciceronian form last year, and got himself acquitted, that acquittal would have been continuously vulnerable to review and recall. It is a concern - and how the Crown use these new powers will have to be very closely attended to in the coming years.