7 March 2011

A thole in jeopardy...

Legally technical Bills, adopted consensually without generating sharp partisan divisions, stand a snowball's chance in hell of receiving much detailed examination in the Scottish press. So it has been with the Double Jeopardy (Scotland) Bill, which passed Stage 2 in the Justice Committee last week. The form taken by the process doesn't exactly help matters, being cast in language which requires the reader to hold a number of different texts simultaneously in their head, if the real significance of proposed amendments are properly to be understood.

This blog has previously covered the changes proposed to Scots double jeopardy rules in some detail. In particular, I've focussed on the various alternatives which have been mooted around how the limited exceptions to the general rule should be defined.  The Scottish Government proposed that any case should be potentially retriable, whatever the seriousness of the crime that was charged, where an acquitted person makes an subsequent admission of their guilt or where the first process was "tainted" by corruption or threats. By contrast, where other "new evidence" materialised - the hidden dagger, previously concealed accounts showing sharp practice, the incriminating crumb of DNA - it could only be used to re-open a closed list of offences.  In this, Kenny MacAskill was largely copying the approach taken in the parallel piece of English legislation, albeit with a different list of offences. The list first proposed included:

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

At stage 2 last week, the Liberal Democrat justice spokesman Robert Brown attempted to persuade the Committee that the distinction between admissions and general new evidence should be done away with, but his was a lonely voice in the Committee room, and the proposal was rejected. That still left the tortuous issue of how best to define which cases should be retired on the basis of new evidence? It was all too common ground that the exception should only apply to "serious" cases. Practically distinguishing the serious from the less serious employing a blunt legislative instrument was always going to be challenging. The list had its infelicities and left an overall sense of arbitrariness. Why murder, but not attempted murder? Why not "serious assaults", prosecuted in the High Court? Why exclude fraud, or organised criminality? Why not those drug offences whose collateral injuries are socially ruinous? And so on ad nauseam, ad infinitum. Other options - including allowing all indictable offences to be retriable - seemed astonishingly broad, signally failing to exclude "less serious" cases. During oral evidence, a number of parties suggested that Holyrood take a different tack, providing instead that only those persons originally prosecuted on indictment (before a jury), could be re-tried if new evidence came to light and the High Court  agreed to quash the acquittal and granted authority to re-indict. Having given it a ponder since stage 1, Kenny MacAskill resolved to jettison his initial proposals. He explained...

Kenny MacAskill: "The amendments alter the range of criminal cases that will be covered by the new-evidence exception to double jeopardy. Members will recall that the Scottish Law Commission originally recommended that the new-evidence exception should be restricted to murder and rape. The bill as introduced went further than that by listing specific offences, such as culpable homicide and serious sexual crimes.

Although there is a consensus that the exception must be restricted to serious cases, deciding exactly where to draw the line has proven to be extremely difficult. Compelling arguments and examples can be and have been made and provided in relation to a range of serious criminal conduct. I therefore accept the merits of the argument made by the committee in favour of applying a restriction based on the seriousness of the case and identified by reference to the court where the original trial took place.

I am strongly of the view that an exception for all solemn cases would be too broad. The range of offences that could be tried on indictment is wide—indeed, too wide for that to be an acceptable limit. However, I agree that a restriction to all cases that were originally tried at the High Court provides certainty that the new-evidence exception will remain focused on the most serious of cases. Amendment 20 therefore adopts that change, with amendments 23 and 29 removing the restriction to the list of offences and the schedule that contains the list.

It is true that applying a High Court-based restriction has potential to widen the application of the new-evidence exception. For example, the bill will now encompass crimes such as attempted murder and serious drugs offences. However, it seems right for compelling new evidence sometimes to justify including such cases, where they have been tried in our highest criminal court. Each case will have to be carefully assessed on its own facts and circumstances, in terms of whether the new evidence makes the argument for a retrial compelling and whether it is appropriate to invoke the exceptions to double jeopardy in that instance. That will be a demanding decision for the Lord Advocate and the High Court to assess in each and every case that is considered under the legislation. I am confident that they will rigorously assess the public interest and the interests of justice in reaching their decisions."
Specifically, the Crown must persuade the High Court that the  new evidence leaves "the case against the accused strengthened substantially" (s4(6)(a)); that this "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 (s(4)(6)(b)); that given this evidence and that which was led at that trial, it seems to them "highly likely that a reasonable jury properly instructed would have convicted the person" (s(4)(6)(c)). Finally judges must determine, in all the circumstances, whether it is in the interests of justice (s(4)(6)(d)) to quash the acquittal. Robert Brown described this replacement legal strategy as "more elegant".  For my part, I'm actually rather surprised that MacAskill decided to limit the section to trials in the High Court, excluding offences prosecuted in solemn Sheriff and jury trials.

Having anticipated this development to some extent, we do have some statistics to hand, to get some sense of the number of potential cases we're talking about here. In 2009-10, 741 people were tried and convicted in the High Court of Justiciary. I haven't had time to chip into the available sources of data to seek better numbers, since with tholing your assize, we're clearly interested in the number of folk acquitted, rather than those convicted. We can try to make some estimation, by combining this total number of convicted persons with the best guesses about the % outcome of cases, set down in the Criminal Proceedings in Scotland 2009-10 figures. Take three categories of offences which must be or are very likely to be tried on indictment in the High Court. The "seriousness" of the conduct complained of should be relatively self evident. On homicide, the statisticians estimate that of those cases which proceed in Court, 82% result in a guilty verdict, 6% are acquitted as not guilty, while in 8%, the jury found the charge of murder or culpable homicide had not been proved to their satisfaction. Taking "serious assault and attempted murder", they estimate that the charge is proved in 68% of cases, with 16% acquitted - not guilty and 5% acquitted - not proven. Of rape and attempted rape cases which make it to Court, 46% are estimated to result in a conviction, with 32% of accused persons being acquitted on a not guilty verdict, with 19% of charges being found not proven.


  1. HighlandLawyer7 March 2011 at 11:46

    Of course it would be rather too logical to allow retrials in cases on indictment or in the High Court that had resulted in a "Not Proven" verdict and "substantial new evidence" were later discovered... presumably because the MSPs are too busy looking at English law to consider the "truly Scottish solution" that they are so fond of talking about but rather less fond of taking the trouble to create.

  2. I have to disagree with you there, Highland Lawyer.

    If one accepts the general principle that some acquittals should be quashable and retriable where potentially potent new evidence against the acquitted person, it strikes me as artificial to limit reprosecution to only those acquitted on a not proven verdict.

    A finding of not proven emphasises the artificiality of the trial process - "Not enough to get him, I'm afraid, m'lud, not beyond reasonable doubt..." It leaves an image of a wordly jury, suspicious but observing their oaths.

    Under the sort of scheme you suggest, what would become of a particularly sleekit individual, who totally hoodwinked the jury into believing his side of the story? I don't see why the qualitative distinction governing who should be retriable should penalise moderately successful liars, while allowing the pastmasters to escape re-prosecution.

  3. *Ahem* That should read:

    "...where potentially potent new evidence against the acquitted person becomes available..."

  4. Those who have never served on a jury are free to speculate, and oh how they speculate....we hear no end of their imaginations.

  5. Anonymous,

    Although that comment is a little Delphic, as I understand it you're sceptical about speculations on how juries work. I'd share that view and attempted to hint at it talking about the "image", rather than the reality of jury decision-making. I think it'd be another fair point against Highlander Lawyer's idea, to suggest that it overestimates and would attribute too much significance to a jury finding not proven - as opposed to note guilty.

  6. I enjoyed the 'thole in the assisize' remark. I hadn't heard 'thole' for years. Finding your blog most entertaining and informative.

  7. Alas, styling the principle tholing your assize has rather gone out of fashion these days. It seems a shame - particularly since we're doing away with the uniform rule anyway - to adopt such dreary double jeopardised uniformity.