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


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.

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