21 March 2011

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.


  1. There's been a DNA case going on in London using very old evidence. It seems that the English justice system is quite keen to follow some of the Scottish DNA rules. Your piece discusses double jeopardy in very practical terms.

    From years back, I recall Bill of Criminal Letters and "asythment". Do they still exist in Scotland? I'm no lawyer, but I do remember a case over 30 years ago when this was debated.

    I did see a TV programme about the World's End sometime ago...

  2. obreption,

    Although the Law Commissioner made an important practical point about the Bill, I agree with our tribunes insofar as it is not a fatal one for the argument for retrospective application. For example, it is possible, if rather unlikely, that wholly new evidence might materialise. In other cases, evidence does seem to be retained by the authorities, where the underlying case is classified as "unsolved", despite criminal proceedings already having been taken out against an individual.

    I don't know about the broader DNA retention rules - but on the double jeopardy point, England has had its own Act on this for some time. And of course, given the phenomenon of "hung juries" - which don't exist in Scotland - retrials are far more common in England anyway.

    On your ancient Scots points, I believe, though haven't checked, that private prosecutions using criminal letters may still be available, but rare. I'm rather fond of the idea of "Lawburrows", myself...

  3. Good morning. After a spell of neglect I've been catching up on some recent blogs of yours and have a general comment or two to make. Throughout your posts, each of them thoughtful and fascinating, is a distaste for those who talk of 'soft touch Scotland' and who fail to value human rights as highly as you do. I think part of the problem is that the two matters — human rights specifically, and inconsistent and ineffective sentencing and high rates of antisocial behaviour, crime and violence generally — are often conflated in the public mind. Try to view the matter from the perspective of someone who feels victimised and whose life or neighbourhood is blighted by these problems: when hundreds of crimes are committed for each conviction, when it often takes many convictions to be sent to prison, when our efforts at rehabilitation have not so far been a great success, when many serious and violent offenders are let out of prison after serving half of their sentences (many of them to commit further crimes), when the police are generally unresponsive: can you really blame those people who suffer from this sorry situation if they fail to see the greatest problem in all of it as the potential infringement of the rights of those who victimise them? Can you blame them if they see themselves as the losers in a zero-sum game: one in which the establishment seems so little to be on their side that they assume it to be on the other (as we discussed a while ago, when I think you agreed with my comment about the widespread hoodwinking of judges and parole boards), and which dismisses their real anxieties as tabloid fantasies? It takes a mighty intellectual effort, if you have been a victim of crime, to see the matter in abstract terms: can you blame those who fail to feel liberal, generous and forgiving if they see an attraction in authoritarian solutions, and feel further aggrieved when comfortable intellectuals mock them for doing so?

    Personally I don't believe human rights are responsible for these ills, or that there need be any conflict between human rights and an effective and just legal system (one which rehabilitates wherever possible, and protects the public wherever not). But it is incumbent on you and your profession, if you want public support for human rights, to delineate the two, to explain why our failures in law and order are not the fault of advances in human rights, and to show how we can have human rights for all while still maintaining law and order. (If you want my advice, you could start by pointing out the similarities between '21st-century human rights' and 'our ancient liberties': many who profess to dislike the former will generally stand up for the latter.)

    Remember that humanity only progresses at the speed of its slowest members. Universal support for human rights is an advanced social state that can only come about after we have the universal rule of law rather than of force. Sadly, in too many parts of Scotland, it still appears to many that we have not yet rid ourselves of the latter. Tabloids and politicians can appeal to and sometimes worsen people's fears, but I doubt that they can entirely invent what would not otherwise be there in some measure.

    P.S. My mole in the SNP is convinced the election is lost and that we'll have some sort of Labour/Green deal after the election. He is an arch-pessimist so I'm seeking second opinions: any thoughts on the likelihood of that outcome?

  4. Do you do divorce work Lallands?


  5. Shorter replies first!


    There must be a constitutional gag in there somewhere! You may be reassured to learn, however, that non-consummation of the marriage is no basis for a divorce in Scotland - while the English traditionally recognised such...

  6. Philosophical Zombie,

    Quite a range of challenges and perceptions there! Where to begin? I'll probably defer giving a satisfactory answer to many of the points you raise until a later blog, as they are certainly worth considering at greater length. Just a few specific points for now then.

    I'm interested in your impression that I'm a fierce fellow for human rights. I'd actually describe myself as a moderate human rights skeptic on a political level. I'd much rather talk about the issues themselves, rather than perpetually couching everything in the rule-forming language of rights. My legal interest obviously tends to splice these in an awkward way, combining broader justice discourses with concrete instantiations, particular institutional disposals - and not always clearly distinguishing between more analytic and more normative elements; the technical-legal and the broader ethical and political ways of seeing things.

    I recognise this as problematic. Not least since the public consciousness of law is often strongly at odds with the understandings of traditional "legal actors", lawyers, judges and so on. We can also factor in other problematic and contestable ideas - about law as the simulacrum of our social values - or law as something more artificial and idiosyncratic. Again, our is/ought questions are not always neatly delineated.

    On prison, for example - I'd primarily oppose Labour's measures on the basis of their practical folly, negative consequences and unaffordability - rather than on the basis of some magic knowledge I might claim to have about the "real content" of the Rights of Man.

    You describe the frustrated, victimised figure very neatly. "See your indecision! Isn't it all really straightforward? Can't we come up with common-sense, brisk, decisive solutions? Can't we just bang up the lot of 'em?" Its a comforting, beguiling thought, without question and a thoroughly understandable one, in its way. How to decrease the pitch of feeling and embrace the incorrigible complexity of the thing? It is difficult even to begin to think through.

    On the election, I'm less pessimistic than your nationalist pal, but not confident of our chances either. It'll be a damn close run thing.

  7. Thanks for your reply. I think all of us who worry about economic, social and cultural divisions in Scotland (or indeed in Britain) should be concerned about the gap you identify between legal actors and most of the public. Again, I would say it is incumbent on your profession to keep in mind the tragic and vulnerable figure I describe, to remember that his worldview is shared by a very large section of the public, and to realise how byzantine and remote the legal system appears to the uninitiated.

    No doubt Labour's approach is foolish. For instance, I agree with your take on their (and Bill Aitken's) policy of a mandatory sentence for carrying a knife. It needn't be 'soft' to imagine that those who are least likely to carry one only in self-defence are also those least likely to be deterred by such a policy. That's not to say that I would be inclined to leniency towards those who attack others, with or without weapons — merely that Labour's proposals, in seeking to criminalise people who haven't yet done any harm, and who in most cases won't do any harm, seem completely beside the point. (The question of automatic early release, as a contributing factor to the public's inability to feel at one with the justice system, seems more to the point — but with both parties eternally promising to do something about it at some point, I think we're entitled to treat it as we do other cast-iron or solemn and binding election pledges. However, I'd be very interested to hear your views on that specific issue.)

    The only point at which you lap into ought/is confusion (or perhaps just fatalism) is to say such policies are unaffordable. This is a political position. In my little unrelated corner of the public sector I could give you plenty of examples of money that would be better spent, one way or another, in the justice system or on protecting the public. The question isn't one of the money not existing, then, but of prioritisation of how we spend money. Unaffordability is really just a proxy for political difficulty, not impossibility. In essence the 'unaffordability' line of argument isn't a rebuttal of the opposing position, but a diminution of its importance.

    Anyway, I look forward to your thoughts in full.

  8. Bah! A lengthy remark got devoured. God rot blogger. A brief re-iteration. Firstly, in defence of those who aren't my colleagues, I should say that I'm not a member of any branch of the legal profession. They will no doubt be relieved to be tried separately! For my part, I'm much more interested in combining sociological and legal perspectives. The gap in question - though I'd caution about being too binary here - is a fascinating example in point. Perhaps in the future I'll try and address it in a more thoroughgoing fashion.

    I concur with your position on knives and accept your gentle chastening on the language of "unaffordability". The crux of my position is not about the impossibility of finding the cash - though that does seem highly problematic, given Labour's current spending plans - but that this particular game isn't worth the candle and such significant spending simply wouldn't be worth it.

    Early release is a curious one. Objections to it tend to depend on the assumption that a judge sentencing an individual intends for them to be locked away for five years, but is frustrated by the floppy release system. This assumption seems unlikely to bear much scrutiny. After all, judges and sheriffs are highly likely to be familiar with release regimes - and calculate their sentences accordingly (although I have no firm evidence to give you, demonstrating that this is the case). We have good reason to hypothesise, I'd suggest, that judges aren't so much frustrated by the early release system, but operate as "gamers" within in, their sentencing being informed by an acute awareness of how it works. Moving towards a more systematic system of sentencing, more easily understandable by your average citizens, seems to have the virtue of being more honest. That said, you might argue that the present system has a dual functionality on this score, allowing feelings to be assuaged by pronouncing hefty sentences, while simultaneously engaging in a more liberal penal practice. It is easy to envisage that if the sentence given = time served, judges would be under serious pressure to hand out stiffer penalties, the unanticipated upshot of which being a further expansion in Scotland's growing prison population. That's just my hunch.

  9. Thanks again — I've enjoyed this discussion and feel I'm learning something about an area I'll happily admit to having no background in. The idea of 'judges as gamers' is nicely put, and confirms how I imagined they behave. You're quite right that a reform towards more transparent sentencing would be more honest, and would help to close the gap between the average citizen and the professionals. As with politics generally, it's important that those who currently feel divorced from the system are able to feel they understand it better and have more of a stake in it, if only as a sort of vaccination against more authoritarian solutions.

    Having said that, I'm still not sure why a liberal penal policy in the absence of a more rehabilitative system within prisons, which is the key point, is particularly desirable or indeed humane. To let unreformed, violent characters out early and hope for the best seems an act of dogma in the face of the evidence that says they are currently very likely to reoffend soon after. But if what happens within prisons were transformed (in a way that I can't imagine too many reasonable-minded people would object to, though of course it would cost a lot of money) then my hunch would be that a lot of the public desire for lengthy sentences - which at the moment, with such high rates of recidivism, is a rational desire for their own protection - would no longer be necessary and would in time diminish. The likely increase in the prison population would perhaps then be a short-term measure to help assuage public concerns about safety, but would buy us the time and support to move towards a penal system based not on an ineffective cycle of punishment but on a confluence of rehabilitation (where possible, which won't always be the case) and public safety.

    P.S. You're quite right to point out that, in this strict sense, Labour's proposals would be unaffordable in the context of their wider spending plans.