Showing posts with label Tholing your assize. Show all posts
Showing posts with label Tholing your assize. Show all posts

20 December 2012

The World's End case: Ca'ing Canny...

It isn't exactly a seasonal dish, but ought this blogger to brace himself for a vast slice of humble pie? 

During the Double Jeopardy (Scotland) Act 2011's passage through Holyrood, several parliamentarians, and articles in the press, implied that the legislation would result in the reindictment of Angus Sinclair, accused of committing the so-called World's End murders of the seventeen year old Helen Scott and Christine Eadie in 1977.  As you will likely recall, Sinclair's murder trial collapsed in 2007 after Lord Clarke held that the evidence presented to the jury was insufficient in law, to sustain any conviction. Throughout the process of introducing these legal reforms, I was pretty sceptical about the likelihood that the specific changes which Holyrood enacted to the rules on tholing your assize would see the World's End case retried, despite the political pressure from various quarters to do so.

Today, however, the Crown Office have announced that they have applied to the High Court of Justiciary to have Sinclair's acquittal set aside, and the opportunity to re-indict him for killing Eadie and Scott.  This is the first application made by the Lord Advocate since the 2011 Act came into force.  The application will be decided by at least three judges of the High Court, and their decision is final and not subject to any appeal. So what will the Crown have to argue, if they are going to be granted authority to retry Sinclair?

There are three main exceptions to the general rule that you cannot be tried twice for the same offence in Scotland.  Firstly, your acquittal can be set aside if the trial was "tainted" - for example by someone threatening or bribing, or attempting to threaten or to bribe judge or jury or witnesses.  As far as I'm aware, there is no suggestion that the Crown is making an application under this section. The second exception is where the person admits their guilt after having been acquitted. There are some qualifications to granting reprosecutions under this heading, however.  The Court can only set aside the acquittal if four - prima facie rather stringent - tests are met:

  1. That the admission of guilt "was not known, and could not with the exercise of reasonable diligence have become known, to the prosecutor" by the time of the original acquittal.
  2. The "case against the person is strengthened substantially by the admission".
  3. That "the admission and the evidence which was led at the trial in respect of the original offence, it is highly likely that a reasonable jury properly instructed would have convicted the person"; and
  4. That "it is in the interests of justice to do so".

Imagining myself invested with judicial grandeur, wig and gown, I struggle to imagine the circumstances where almost any credible evidence of a post-acquittal admission of guilt would not be regarded by the Court as substantially strengthening a case and heightening the likelihood of conviction.  Unless, I suppose, the case was fearfully, uncharacteristically weak to begin with. Again, it is worth emphasising that the Crown announcement today contains no information on which of these grounds they are proceeding, but a prison confession would be one possibility.

The final ground to set aside an acquittal is that "new evidence" materialises in the meanwhile. This ground is only available where the original trial was on indictment in the High Court.  Practically speaking, this means that acquittals pronounced in the Sheriff Court, whether by judge alone, or sheriff and jury, can't be overturned on the basis of "new evidence", pertinent or persuasive as it might be.  Critically, however, not just any additional evidence will do to knock an acquittal flat.  In echo of the strictures we saw around subsequent admissions of guilt, the Court may only set aside the acquittal if it is satisfied that:

  1. The "case against the person is strengthened substantially by the new evidence";
  2. The new evidence "was not available, and could not with the exercise of reasonable diligence have been made available" at the first trial.
  3. 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.
  4. And lastly, that "it is in the interests of justice to do so".

A few general observations about these qualifications. Firstly, it remains to be seen how expansively or restrictively the High Court will interpret these provisions, but the phrases which I've highlighted above at least gesture towards the Court taking a fairly strict line on what sort of new evidence might justify quashing an acquittal.  It certainly should not be taken for granted, for example, that the Court will agree with prosecutors' assessments of the significance and novelty of any new evidence which they wish to adduce. We might be able to agree, for instance, that additional evidence might strengthen an Advocate Depute's case, but it's a matter of judgement and context, rather than strict rule, what a "substantially strengthened" case might look like. Or for that matter, whether supplementing the prosecutor's case with the new evidence would make it "highly" likely, rather than simply more likely, that the jury would find the charges proven against the acquitted person. You might well think, however, that any additional material would have to be pretty darned incriminating, or at least, capable of an incriminatory reading.  

In particular, notice too that under the Act, the new evidence must not have been available at the time of the original trial. The evidence would not, for example, be "new" if it was available but simply not lead before the jury by prosecutors.  Similarly, want of diligence in ferreting out evidence on the part of the prosecutors and the police cannot be rewarded by a fresh prosecution, though the question of what sort of investigative techniques a "reasonably diligent" copper might employ is obviously open to interpretation at the margins. Our legislators, minds full of "cold cases" from the telly, and advances in forensic technologies, were probably thinking about evidence which it was scientifically impossible to obtain in the past, but are now the common currency of law enforcement.  

This paradigm doesn't seem to fit neatly with the facts of Sinclair's acquittal. While the murders of Eadie and Scott occurred in 1977, Sinclair's first trial did not take place until thirty years later.  It will be for the Lord Advocate to substantiate, between 2007 and 2012, rather than 1977 and 2007, that some additional significant evidence has come to light warranting the reactivation of criminal proceedings against Sinclair. While it is easy to envisage big changes in the investigative techniques available between the 1970s and the early 2000s, it is a bit trickier to see what radical technological innovations may have occurred over the last half decade, generating evidence where evidence formerly was unavailable. 

I've no insight whatever into the substance of the Crown's case, and it may well be that they have uncovered credible evidence of a confession, or new evidence within or outwith the natty fields of forensic science. No doubt we'll hear in greater detail, when the application is presented in open court some time in the new year. On the basis of what the Double Jeopardy (Scotland) Act says, however, there are still plenty of reasons to ca' canny at this stage about the High Court granting authority to the Crown for a second World End's trial to proceed.

15 March 2012

Double jeopardy & the World's End case...

Only a numpty would fail to discern the semantic difference. Contrast the phrase: “we are investigating the possibility of a retrial” and “a retrial will definitely happen”. The first formulation certainly suggests serious-minded application – a searching search rather than a dawdling, half-hearted intention to review an acquittal – but for the Scotsman to headline yesterday’s developments in this morning’s paper as “World’s End murders accused set for retrial” is appallingly irresponsible.

Irresponsible, because Angus Sinclair’s retrial under the new Double Jeopardy (Scotland) Act 2011 was always going to be a very long shot, for a couple of reasons. Firstly, consider the legislation itself. What do the Crown need to do to have an acquittal set aside? They have to persuade the High Court that one of three main exceptions to the general rule against double jeopardy obtain. Firstly that the person was acquitted by a judicial process “tainted” by illicit jiggerypokery. Bribing or threatening judge or jurors or witnesses: that sort of thing; secondly that the acquitted person subsequently owned up to their guilt; and thirdly, that new evidence emerges after the acquittal.

This last ground is much-qualified in the detail. It is not sufficient that any new proofs are turned up. Before any re-prosecution will be permitted, the Crown must convince the High Court to set aside the acquittal and order a retrial. Under the Act, the Court may only so order, if they are convicted that that (a) the new evidence leaves the case against the person ‘strengthened substantially’; (b) 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’; (c) that on the new evidence and that lead at the first trial, ‘it is highly likely that a reasonable jury properly instructed’ would have convicted the accused; and (d) finally that it is ‘in the interests of justice’ for the court to set aside the acquittal.

Absent any interference with justice, and assuming Sinclair has made no post-acquittal admissions of guilt, it is these ‘new evidence’ provisions the Crown will have to rely on, if Sinclair is to be re-prosecuted. And they don’t strike me as immediately promising for a couple of reasons. Firstly, we have to remember why the World’s End trial failed in 2007. The presiding judge decided there was “no case to answer”, which is to say that in law, he believed the evidence presented by prosecutors was insufficiently corroborated for a conviction to be sustained. Against this decision, the Crown enjoyed no right of appeal and that was the end of it. Critically, even if the Crown did not present all of the evidence it had in its possession during the 2007 trial, and neglected to adduce important aspects which could have saved its case, that clearly isn’t “new evidence” under the Double Jeopardy Act to justify setting aside the acquittal.

Secondly, we have to remember the factual circumstances of Sinclair’s 2007 prosecution. Former senior police officer Tom Wood is quoted in the Scotsman article, suggesting that “I think it’s unlikely the Crown would have done what it’s done if it did not have new and compelling evidence. It would guess it’s to do with advancements in forensic science”. Respectfully, this doesn’t seem likely. Helen Scott and Christine Eadie were killed in the 1970s – Sinclair was not prosecuted for their murders until the 2000s. On my understanding, that much-delayed prosecution was itself based on new DNA evidence emerging in the intervening years. While not impossible that radical, revelatory innovations in forensic science have occurred in the last five years, I’ve not heard of any. 

Indeed, one might think that the Crown would decide to order a new investigation because it had what it regarded as old and compelling evidence of potential guilt, rather than because they already had new evidence in hand.  We aren't talking about the technically savvy review of an old case and old forensic methodologies, but the re-investigation of a relatively contemporary case, relating to now old facts.  Even without considering the hurdle of new evidence "significantly strengthening" the case against the accused, if Sinclair is to have his acquittal set aside, the High Court will have to be convinced not only that the officers of Lothian and Borders police have uncovered something new and substantial implicating Sinclair, but that this was new evidence which "could not with the exercise of reasonable diligence have been made available, at the trial in respect of the original offence". While this seems obviously to apply to information which becomes accessible because of radical technological innovation, absent that, it would be surprising if the presumably diligent police investigation leading up to the 2007 court case had excusably missed any evidence which would satisfy this standard.

I don’t want to ape the Scotsman’s mistake of misplaced definitiveness, but when you consider the statutory framework, and the circumstances of the World's End trial, the chances of Sinclair's successful re-indictment still seems remote.  Empowered by the new Double Jeopardy Act, it isn't surprising that the Crown felt obliged to undertake another review of the case, and ordered police to make further investigations. Quite proper too. But don't let's get ahead of ourselves. False hope for the families of these women, so cruelly killed, is no hope at all.

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.

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.

4 February 2011

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.

15 December 2010

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.

21 November 2010

Double jeopardy's (very) cold cases...

I dare say that a fair few of our tribunes have whiled away the watches of the night in front of Waking the Dead, Cold Case or New Tricks. Dramas structured around unsolved criminal cases - their dominant themes are unresolved conflict, the dull throb of guilty memories, the guarded panic of those whose success is erected on the foundations of some foe's last gasp, some dirty trick or repressed mischief. Generally speaking and to varying degrees, all three shows introduce the use of scientific methods to re-evaluate past failed investigations. This movement is generally made by resorting to a (classically morbid and/or eccentric) boffin, who produces a singular piece of evidence acquired through their mastery of the magical operations of modern science. Follicles under fingernails, soil samples, paints only manufactured between 1960 and '63, distinctive tyre-tracks, the imprint of labour or environment on a spent cadaver -  and so on and so on. Such small details send Science's polis cronies' fingers pointing at one soon-to-be-unhappy guilty citizen.

Like much of the population, I'm not well-versed in the practice and practical limits of contemporary forensic techniques. However, much like Cracker articulated a conception of criminal psychology which entered the popular understanding, this CSI-sation of crime detection seems prima facie rather problematic, generating inflated and potentially distorted expectations. We can detect some evidence of this tendency in parliamentary discussions of the Scottish Government's proposals to allow those acquitted to be retried in Scotland under particular circumstances. One such circumstance is the appearance of new weighty evidence. With its focus on new scientific techniques, past investigations without access to those tools, the issue becomes particularly pointed in discussions of whether the reform should be retrospective or not. For instance, in a Holyrood debate earlier in the year, one SNP parliamentarian argued that:

Stewart Maxwell: "I turn to what I believe is one of the most important questions about the changes to double jeopardy law—whether they should be retrospective. In all honesty, I can see no logic in saying that such changes should not be retrospective. If we do not allow retrospective application of changes to double jeopardy law, we are endorsing the past injustices that have been perpetrated on Scottish citizens. That is unacceptable. One of the greatest advances in criminal investigation has been the application of new technology to cases and, in particular, the introduction of DNA evidence. Advances in DNA evidence are leading to the solution of cases in which no person was convicted at the time or has been subsequently—so-called cold cases. If we have convincing new evidence, nothing should stop our prosecutors charging and trying an individual—even if they were acquitted before any changes in the law came into force."

In Holyrood's justice committee this week, this account of why retrospection is practically necessary, practically possible was blown to bits by one of the Scottish Law Commissioners. Here's what Patrick Layden QC told Baillie Bill Aitken and friends:




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."

Of course, it makes perfect sense. If you are operating in a system which does not permit retrial after an acquittal and your archives are overflowing with material evidence, why keep it? What function might it serve?  It is entirely predictable, with a little thought, that the procurator fiscal wouldn't retain a vast vault clogged with old knives, rusted pistols, blood spattered clothing and what have you. Subsequent witnesses from the Crown Office confirmed this account of their historical evidence-retention practices but defended the principle of retrospective application, arguing that relevant documents are retained for a decade, new eyewitnesses may be found or a new piece of physical evidence - say a concealed weapon bearing identifying DNA traces - which would still justify the possibility of re-indictment. Does this revelation strength or weaken the case for retrospection? Layden opposes the proposals on the basis of principle. Arguably, the Law Commissioner's sally demonstrates that Maxwell had been watching too much telly, and misses his mark. The idea that this Bill will practically allow new science to be applied old evidence to instigate new prosecutions is clearly wrong-headed. It won't and Scottish prosecutors frankly admit such. Crown witness Scott Pattison reiterated that:

"It is right to say that real evidence will no longer be available in some cases, but it is conceivable and consistent with our experience that, in some cases, new real evidence will become available and be able to be subjected to the sophisticated forensic and scientific techniques that are available to us now."

Despite this, I anticipate that the parliament will support the retrospective principle. Paradoxically, these practical limitations on who can be retried may actually serve to allay the fears of folk who are dubious about the reform.

8 October 2010

Why the World's End murders are unlikely to be retried...

Further to this morning's post on the first draft of the Double Jeopardy (Scotland) Bill, introduced to Holyrood yesterday, I wanted to strongly emphasise one point about the proposals, so no further confusion is possible. Alex Salmond confirmed the Bill's inclusion in the SNP's Programme for Government, announced in the chamber on the 8th  of September this year. This dowdier, Eck-centric version of Westminster's ermined and sequinned flummery in the Queen Speech was followed by a parliamentary debate on the issues raised. Opposition politicians made a number of references to the proposed reform of the old rules on tholing your assize. Unfortunately, many of these contributions perpetuated a dangerous and singly unfair misunderstanding about what the Bill will do, in particular its relationship to the World's End Murders case of 2007. In a parliamentary debate on double jeopardy on the 24th March 2010, Labour justice spokesman Richard Baker opined:

"We all remember the trauma that was caused by the collapse of the trial for the World's End murders, to which Mike Pringle referred. Indeed, we all remember the Lord Advocate's statement to Parliament on the matter. If the law is not changed retrospectively, the hopes of the families of Helen Scott and Christine Eadie will have no chance of being realised..."

As most of you will already know, the World's End trial concerned the deaths of two seventeen year old women - Helen Scott and Christine Eadie - in 1977. The name derives from the pub in Edinburgh's Old Town where the two women were last seen alive. Some 30 years on, in 2007, Angus Sinclair was indicted for killing Eadie and Scott, yet the trial collapsed when Lord Clarke held that there was not a sufficiency of evidence to convict Sinclair. The proposed reforms to tholing your assize have regularly been linked to that case, not least by Kenny MacAskill. Indeed, Iain Gray did so again in the parliamentary debate after Salmond's speech:

"We agree with the Government that double jeopardy should end, and we will support the bill to achieve that. However, I wonder why that has taken so long; it is three years since the collapse of the World's End case, which clearly illustrated the importance of that measure."

All of these arguments are intensely problematic, not least because the World's End trial does not illustrate the importance of the legislation being proposed. Unless Sinclair subsequently confesses to the murders - or further new evidence comes forward which "substantially strengthens" the case against Sinclair, which seems highly unlikely - he will not be retried and could not be retried under the proposed legislation. It is quite, quite irresponsible, therefore, for Baker to suggest that retrospectiveness is the only thing standing in the way of a fresh re-prosecution of Sinclair for the deaths of the two women. Nobody, I think, is proposing that the Crown simply have an inexhaustible right to try, try and try again to bring home a conviction. Baker reprised the theme in the debate on the SNP government's programme, saying:

Richard Baker:

"When the Scottish Government produces proposals that we believe will help the victims of crime, we will support them notwithstanding our concerns over other aspects of its justice policy. For example, we will support the proposals to reform the laws on double jeopardy. It is intolerable when someone who is guilty of a crime walks free from court. When new evidence of their guilt is produced, there should be an opportunity to try that individual again. Parliament should support reform of the law, and with retrospective action, so that families such as those of Helen Scott and Christine Eadie—the victims of the World's End

For the reasons outlined above, this way of talking about the ambit of the reform has the potential to be exceedingly - unjustly - misleading, not least to the families of Scott and Eadie, with whom one can only have the fullest sympathy - and towards whom we owe ruthless honesty about the possibility that the prosecution against Sinclair be revived. The Holyrood debates weren't entirely misleading on that score. Helpfully SNP member of the parliament's Justice Committee, Nigel Don, rose to clarify just this point in the debate:

"The arguments around double jeopardy have been well rehearsed. There is a measure of agreement on the need to deal with the matter. Considerable reference has been made in the Parliament and the press to the World's End case. It is worth pointing out that the case came to an end because the judge ruled that there was insufficient evidence—double jeopardy has nothing directly to do with that. A lacuna in the legal system in that regard has already been remedied. If the World's End case is to be brought back to court, that will have to be because more evidence is found, not because there is a different ruling on the evidence that has already been put before the court. People need to be clear about that. If there is more evidence, of course, the proposed double jeopardy bill could apply to the case."

In this clarifying task, Don received some boon assistance from Holyrood's Cap'n Mainwaring, Liberal MSP Ross Finnie, who promised that:

"We will study carefully the precise proposals on double jeopardy. We recognise the points that the Scottish Law Commission made and we would hesitate if the commission's proposals were watered down. We remain puzzled about the precise connection between the outcome of the World's End trial, to which Nigel Don referred, and double jeopardy. In principle, we see the case for the reform and we accept the commission's position, but we will nevertheless want to study the proposals with care."

There is nothing responsive to the suffering of victims and their families about raising false expectations which are almost sure to be dashed. Nothing good or just or compassionate about that at all. So let there be no doubt, no dubiety. If Holyrood passes the Bill as it is drafted, they should not be permitted to convince themselves that they're categorically reopening the old files and summoning Sinclair to the dock to account for whatever role he may have had in the deaths of two young women. Whatever the truth of the matter, Eadie and Scott were brutally uprooted in the very flower of their youth. Honesty is the very least that we owe their families.

Scottish Double Jeopardy Bill published...

Yesterday, the Scottish Government introduced their promised Double Jeopardy (Scotland) Bill to rejig the Scots law on tholing your assize and introduce new exceptions to the old strictures on re-prosecution in the event of an acquittal. The document is technical and it'll take some time to pick through the implications and what is and what is not encompassed within its terms. 

It has provisions on acquittals "tainted" by interference with judge and jury, post-acquittal confessions and best-publicised, section 4 would introduce a "new evidence" exception. For all of the above, the Lord Advocate would first have to apply to and convince the High Court of Justiciary that the acquittal be set aside. Where new evidence is the grounds on which a new trial is sought, it is envisaged that Law Officers will have to satisfy a number of tests. Firstly, they will have to demonstrate that "the case against the accused is strengthened substantially by the new evidence" (§4(6)(a)). Secondly, the new evidence couldn't have been available - "and could not with the exercise of reasonable diligence have been made available, at the trial in respect of the original offence" (§4(6)(b)). Thirdly, the Court is also asked to assess, given the evidence lead at the first trial and the new evidence, whether "it is highly likely that a reasonable jury properly instructed would have convicted the person" (§4(6)(c)). Fourthly, the Court is invited to assess whether "it is in the interests of justice" to vacate the acquittal (§4(6)(d)). I must say, I find the distinction between a "substantially strengthened case" and inducing judges to guess what the jury would have done is rather strange. Here, it is also worth pointing out that the World's End Murder case - so often invoked in this context - is exceedingly unlikely to be retried under the auspices of the proposed law. As was pointed out exceedingly perceptively here, it wasn't any rule on tholing your assize that stuffed the prosecution of Angus Sinclair. Nor is a "double jeopardy" reform the solution to that problem.

Moreover, to these tests we must add another limitation - new evidence will only allow certain offences to be re-prosecuted. I've blogged on this question before, speculating that we might see the inclusion of the new serious organised crime offences on the list. They're a no show. I thought it might be interesting, by way of preliminary contrast, to compare the Scottish and English lists. In England, offences qualifying for the new-evidence exception to the double jeopardy rule are:

Offences Against the Person
Murder; Attempted murder;  Soliciting murder; Manslaughter; Corporate manslaughter; Kidnapping

Sexual Offences

Rape; Attempted rape; Intercourse with a girl under thirteen; Incest by a man with a girl under thirteen; Assault by penetration; Causing a person to engage in sexual activity without consent; Rape of a child under thirteen; Attempted rape of a child under thirteen; Assault of a child under thirteen by penetration; Causing a child under thirteen to engage in sexual activity; Sexual activity with a person with a mental disorder impeding choice; Causing a person with a mental disorder impeding choice to engage in sexual activity

Drugs Offences
Unlawful importation of Class A drug; Unlawful exportation of Class A drug;Fraudulent evasion in respect of Class A drug; Producing or being concerned in production of Class A drug

Criminal Damage Offences

Arson endangering life; Causing explosion likely to endanger life or property; Intent or conspiracy to cause explosion likely to endanger life or property

War Crimes and Terrorism
Genocide, crimes against humanity and war crimes; Grave breaches of the Geneva Convention; Directing terrorist organisation; Hostage-taking

Conspiracy
Conspiracy

For Scotland, MacAskill proposes the following offences be re-triable under the new evidence exception. The legislation includes a ministerial power to add and delete articles from this list. It may also be amended as the Bill passes through the parliament. However, at stage 1, freshly baked by the Scottish Government justice wing, the list reads:

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

More on this at a later date, no doubt.

16 August 2010

Reforming double jeopardy (Vol. II)

Following on from yesterday's post on the Scottish Government's intention to change the Scots law on double jeopardy, a Hootsmon report of this morning contains an indicative crumb or two on the likely shape of the Bill. The paper inform us that:

"The bill will mirror the Criminal Justice Act 2003 which ended the 800-year rule of double jeopardy barring retrials in England and Wales when new evidence came to light."

Yesterday, I quoted the list of offences which qualify for reprosecution under this 2003 Act, in the light of newly disclosed evidence. In Scottish terms, the article continues:

"It is also understood that Mr MacAskill intends to bring forward a bill closer to the English legislation in terms of what cases can be retried.The commission had suggested the change be limited to cases of rape and murder, but Mr MacAskill will also want it to apply for culpable homicide, other serious sexual offences and other serious offences. As in England it could also be extended to drugs crimes, although sources said a definitive list had yet to be finalised."

As an aside, you might well think it ironic that a nationalist administration, in this area as in other areas, seems to think in terms of "bringing Scotland into line with England" and regularly moves to legislate by taking English and Welsh legal texts and fiddling with them a bit. End of digression. This seems to answer one of my concerns of yesterday - at least in terms of the broad approach to reform. The "serious" crimes in question will be set out, haggled over and nitpicked by list.  However, seriousness remains a vague criterion. Serious assaults? Probably impossible to identify. Prosecutions under the new Sexual Offences Scotland Act 2009, far more feasible. I shouldn't be at all surprised, for example, if the Government attempted to add some of the new serious organised crime offences to this list too. From the boundless eagerness of beaver boy Richard Baker, the Government can no doubt anticipate that its proposals will be subject to scanty skeptical assessment. Rather, I imagine, Labour's energies will be poured into feteing the idea and busily agitating to emphasise their own role in changing the law.  I also notice, with interest, that the article suggests that the two Green MSPs - Patrick Harvie and Scarfinator in Chief, Robin Harper - will oppose the Bill. I've not yet been able to confirm or deny this position or substantiate its rationale. Even so, those opposed to doing away with a general principle of double jeopardy - while perhaps attempting a manful critical sally or two - do not now look to be in a position to secure a parliamentary victory. The vis inertia is spent. That said, it is worth remembering re-indictment will require new evidence. This isn't just a mechanism to try, try and try again if the first trial doesn't satisfy the forces of prosecution. As the advocate Robert Sutherland recently noted on Twitter:

"Scrapping of double jeopardy rule will probably not mean a re-trial in infamous World's End pub murders case as there is no "new" evidence.."

Despite the recent slew of headlines suggesting otherwise, as I understand Kenny MacAskill's proposals, double jeopardy is not being scrapped at all, but is to be qualified by novel exceptions, applicable in particular circumstances. That aside, I anticipate that the defence of this old concept will be assuming a rearguard formation, encouraging narrower legislation and a shorter list of qualifying offences. Such a task is a virtuous one. It will still be easy - all too easy - for this Bill to go far too far.

15 August 2010

The end of double jeopardy in Scotland?

Although the tale has not yet been taken up by other media outlets, this morning the BBC is reporting that "Double jeopardy law will be scrapped in Scotland". This is not surprising. Announcing the consultation, Kenny MackAsill frankly conceded that "we are minded to legislate at the earliest opportunity". Turns out that that opportunity is nowish, in Holyrood's final term. To recollect just a little of the context, you may recall that the Scottish Law Commission produced its Report on Double Jeopardy, however the Commission were unable to agree on a number of salient matters. A consultation was held. At the consultation's beginnings, I noted that:

Kenny MacAskill’s news release is full of familiar (and largely fatuous) rationalising metaphors, the blubbery Whiggish stuff trotted out whenever law reform is contemplated “… updated for the 21st Century… modernising … fit for the 21st Century … in this day and age … clear direction of travel … reform needed…”

Changes to double jeopardy impended. What remained and remains unclear, however, is what changes precisely. The four key questions asked in the consultation were:

* Whether consultees agree that there should be a new evidence exception
* The test to be applied in assessing new evidence
* What offences a new evidence exception should cover
* Whether a new evidence exception should apply retrospectively.

The trailing of the announcement in the media includes no official press release, no draft Bill. I'll keep my powder dry until we have a legislative text to scrutinise. However, a fiery pinch can't really hurt. I'm concerned with which offences can be re-indicted. Previously, MacAskill has talked about the proposed legislative changes in terms of keeping the traditional rules on tholing one's assize - but amending the general principle by introducing novel exceptions. Whether or not structure of precept and exception will be anything more than theoretical depends on how and how many crimes attract exceptional status. Should re-prosecution be limited to murder, rape? "Serious cases?" If so, how should their seriousness be defined? The BBC are reporting that the Government intends to make the changes apply retrospectively and that they understand that:

"... the government's bill will go further than the law commission's recommendation that only people cleared of murder, rape and some other serious sexual crimes should be allowed to stand trial for a second time. Instead, it will be extended to cover other serious offences, including culpable homicide."

No doubt they have such an understanding because someone in government outlined their plots to them. So what offences are "serious"? In England and Wales, offences "qualifying" for the new-evidence exception to double jeopardy are:

Offences Against the Person
Murder; Attempted murder;  Soliciting murder; Manslaughter; Corporate manslaughter; Kidnapping

Sexual Offences

Rape; Attempted rape; Intercourse with a girl under thirteen; Incest by a man with a girl under thirteen; Assault by penetration; Causing a person to engage in sexual activity without consent; Rape of a child under thirteen; Attempted rape of a child under thirteen; Assault of a child under thirteen by penetration; Causing a child under thirteen to engage in sexual activity; Sexual activity with a person with a mental disorder impeding choice; Causing a person with a mental disorder impeding choice to engage in sexual activity

Drugs Offences
Unlawful importation of Class A drug; Unlawful exportation of Class A drug;Fraudulent evasion in respect of Class A drug; Producing or being concerned in production of Class A drug

Criminal Damage Offences

Arson endangering life; Causing explosion likely to endanger life or property; Intent or conspiracy to cause explosion likely to endanger life or property

War Crimes and Terrorism
Genocide, crimes against humanity and war crimes; Grave breaches of the Geneva Convention; Directing terrorist organisation; Hostage-taking

Conspiracy
Conspiracy

A grim list, undoubtedly. Should we anticipate a copy, with the relevant Scottish offences substituted - or something else? Something narrower, or something broader? In this respect, I find the tenor of the BBC story potentially concerning. After all, I recently blogged about how unsuccessful were Holyrood's attempts to define serious organised crime in any serious way, the consequence of which being the passage of a potentially illiberal and chimerical statute. In that piece of recent legislation, "serious offence" is defined thus:

“serious offence” means an indictable offence— 
(a) committed with the intention of obtaining a material benefit for any person, or 
(b) which is an act of violence committed or a threat made with the intention of obtaining such a benefit in the future, and “material benefit” means a right or interest of any description in any property, whether heritable or moveable and whether corporeal or incorporeal.

Obviously, I'd be astounded if this definition was used in the Scottish Government's proposed Bill on double jeopardy. The second and third sections are very clearly situationally defined, intimately associated with their couching context and concern with remunerative and organised criminality. What concerns me, however, is that the Government is happy with the idea that seriousness can simply be equated with indictableness of an offence. As I explained in that piece, most Scottish offences are indictable but the procurator fiscal would generally only indict serious instances. Assault and theft encompasses a great gamut of conduct, from the minor to the major, yet both small infractions and substantial breaches are indictable. The essence is this - indictableness is not a serious distinction to draw. I hope, therefore, that when the draft Bill is published, we see no echo of the Criminal Justice & Licensing Bill's language of seriousness. If drafted too broadly, this really risks becoming an end to the principle of tholing your assize, rather than the introduction of moderating exceptions.

22 March 2010

Hanging with Frank in double jeopardy...

Did you know that, generally speaking, a confession is insufficient evidence in Scots law to bring home a conviction? A natural outgrowth of the evidentiary rule requiring corroborating evidence of the essential elements of the charge, if the only thing the prosecution and police can produce is the accused’s own admission, the charges against him can’t be sustained. The primary exception to this originated in the case of Peter Manuel. A serial killer, Manuel, who was dubbed the Beast of Birkenshaw, was hanged in HM Prison Barlinnie in 1958, convicted of killing eight people across the West of Scotland. He confessed to the police of his day, but crucially, demonstrated detailed knowledge that theoretically only the killer him or herself could have possessed (if we rule out the plausibility of hovering spirits informing particularly select psychics about their haunts). Bodies were discovered on the basis of Manuel’s directions. In these circumstances, said the Court, the confessions were self corroborating.

This arcane scratch of law and crumb of melancholy history came to mind, reading the Scottish Government’s remarks promising an imminent consultation on reforming “double jeopardy”, or to be more Scots about it, the rules on having “tholed your assize”. For those of you with a horror for such cavilling and disputatious legalisms as are sure to follow, further to the reference to Peter Manuel above, I found this charming, flinty little 1997 documentary entitled Hanging With Frank which is a portrait of Barlinnie prison’s execution chamber and a man that worked there in the 50’s”. Frank is a character, the dignified embodiment of a particular sort of excellence, full of workman’s virtue and pride in his labours, however dismal and morally questionable they may appear to those of us opposed to capital punishment. If you’ve a quarter hour to spare, its an interesting little window into a spent social world which has now collapsed into itself. For those of you with hath stomach to this fight of legal detail, lay on!


The Scottish Law Commission’s Report on Double Jeopardy proved a comparatively indeterminate enterprise. Kenny MacAskill’s news release is full of familiar (and largely fatuous) rationalising metaphors, the blubbery Whiggish stuff trotted out whenever law reform is contemplated “… updated for the 21st Century… modernising … fit for the 21st Century … in this day and age … clear direction of travel … reform needed…” What is broadly proposed is to “keep” the rule, but introduce exceptions, sanctioning fresh re-prosecution. “Can’t be retried” to be replaced with a “can’t be retried unless…” The consultation is on the exact scope of this ‘unless’. Some potentially significant language here. Quoth MacAskill, it shouldn’t be possible to gloat about your guilty post-acquittal. Nor should we constrain ourselves where “new evidence emerges which shows the original ruling was fundamentally flawed.” I assume he has in mind here, the subsequent imaginary case he alludes to – where tampering, corruption or intimidation seem to be implicated in an acquittal. He says that “it should be possible to have a second trial”.


Notice the language. Will this mean some sort of restriction on the exception, to one new proceeding? What about re-trying a retrial based on new evidence not available at the first retrial? We might be talking here, not about second trials, but thirds, fourths, fifths. Equally, what about evidence which is not lead at the first trial. We can talk about ‘evidence coming to light’ – but which light is it? If the prosecution have a piece of evidence but don’t enter it into evidence in the first trial, can this be thought of as ‘coming to light’? Could it? Should it? There is no specific limitation mentioned on types of offence where having tholed your assize – you would be faced with another. Should retrial, would retrial be available for all cases of acquittal, if one of the exceptions envisaged are made out?


Reference is made to the World’s End Murders. Its important not to let our critical engagement with the proposal become captured solely and wholly by that particular incidence. What about more minor offences? Moreover, detail is low on what the decision-making process would be in terms of commencing such re-prosecutions. Presumably, some judicial permission to reopen proceedings, based on ‘new evidence’, or a confession. The idea of a ‘new confession’ is also complicated, since the bare phrase “I did it” doesn’t necessary denote a confession for the purposes of the criminal law. Law’s idea of guilt and that of the more general moral discourse are certainly connected – but are ultimately separable, one from the other. Would you re-open proceedings and see how the chips fell? A final thought. What about the charge? We can talk about a second trial – but presumably a new indictment could contain a range of alternative offences, perhaps different from the first offences lodged in trial 1. Would this be sanctioned, or would the ‘repeat’ trial have less liberty to change the terms of the indictment? Or if the first trial produces mixed verdicts on more than one charge – some guilty, some not guilty – how to weed out those charges which have been tholed from those we might rethole in new criminal proceedings. This last point is largely a definitional anxiety. But one which we are inevitably going to contend with. Put in short, the proposed reforms (and questions for consultation between 22nd of March and the 14th of June) are the following...



* Whether consultees agree that there should be a new evidence exception


* The test to be applied in assessing new evidence


* What offences a new evidence exception should cover


* Whether a new evidence exception should apply retrospectively.


At least the Cabinet Secretary is making no bones about his own inclinations here, saying “we are minded to legislate at the earliest opportunity’. All of the questions I pose have answers, albeit potentially complex ones. The devil (or the angel) will be in the details. I'll be largely reserving judgement until we've got clearer answers to these questions.