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.


  1. Almost every media report about 'scrapping double jeopardy' makes explicit reference to Angus Sinclair and the World's End case, as though Sinclair would be the first to be re-tried. This neatly ignores the fact that it took 30 years for the first Indictment and trial to come about, itself only possible because of 'new' evidence that had come to light in the interim. It might be thought highly unlikely that further 'new' evidence justifying a re-trial will come to light now.

    Similarly, almost every media report on the legislative proposal quotes Mr MacAskill as saying that the World's End Case had 'scarred the soul of Scotland'. The implication is that the legislative proposals will alleviate that scarring. Unless there is 'new' evidence then it will do no such thing.

    The problem with the World's End case is more to do with the anomalous position where a single judge can close down a prosecution by ruling that there is insufficient evidence, and there is no right for the Prosecutor to appeal.

    The existence of the appeal court is proof of the fallibility of single judges. But it's apparently a fallibility that only the Prosecutor (and therefore 'the public') must endure without recourse.

    My own impression, (dangerously) based entirely on contemporary newspaper reports, was that Lord Clarke was one of the very few people in Scotland who thought there was insufficient evidence in the World's End case.

    I am reasonably certain that almost every other currently serving High Court judge would have allowed that case to go to the jury.

    It seems to me that Kenny is attacking the wrong problem.

  2. LPW

    My heart, too, sinks at the words "bring Scotland into line with the law in the rest of the UK", as though that were a gold standard instead of legal dead end. I might add that I too, prefer expressions based on having "tholed one's assize" to this "double jeopardy" nonsense. Stylistic cavils aside, I agree with almax that this is simply the wrong way of going about the perceived aim.

    I don't think this and similar anglicising foolishness perpetrated under the current government is really a Ministerial choice. The civil service is the same now as it was before 2007, and it is here that the problem lies. I am not suggesting that the civil service is Masonically dedicated to the maintenance and furtherance of the Union, though some civil servants may well be. It is just that "putting a kilt on" Sassenach legislation is what they have always done. Moreover, we saw a jarring statistic this week, that there were 85,000 civil servants in the MoD. According to Mr Wikipedia, there are only some 16,000 working for the entire Scottish Government, and even to get to that total the said gentleman has to include all the agencies. In these circumstances it would be natural for hard-pressed officials to seek to copy models, and the model which is most accessible is that of England. The point is, I think, that an active choice would have to be made NOT to follow trans-Cheviot exemplars: and we have seen that this would involve eternal presentational battles.

    The desirability of a Scottish Civil Service is perhaps a theme for another day...

  3. Well put, Almax. Like yourself, I only followed the World's End case through the media. However, I do find it concerning that false hopes may be being raised by the press and politicians' insistent references to the case, particularly for intimates of Helen Scott and Christine Eadie. That isn't fair or honest.

    I've mentioned before the dangers attending legislator's imaginations being "captured" by the facts and circumstances of particular cases when legislating in general. As you point out, here the circumstances are even more paradoxical, where the particular case likely won't be covered by the general law at all.

    The inspiration for this is partly political positioning, without question. Put in a vulnerable position by their position on knife-sentencing and short term prison sentences - or at least feeling vulnerable - it seems clear enough that the SNP are attempting to shore up their position by deflecting allegations of floppiness on crime, in time for May's election.

  4. But exceedingly interesting to speculate on Am Firinn. Where do we look for our models, what are the connections or discontinuities that spread or choke off the movement of knowledge, ideas, structures, approaches - what else are we overlooking, by consequence? Who do we identify with? I think that is one of the charms - whether or not one would agree with its prescriptions - of the muted but present agitation to think of Scotland as Scandinavian - to gravitate north. I find that proposed shift in view illustrates the existing thoughtless ensemble of associations rather vividly.

    What also comes to mind are the potential generational changes at work here, how the civil servants of the future are educated and approach policy exploration and formulation in devolved Scotland. I've no first hand knowledge of those processes myself, but I'd wager that interesting and significant changes may be burbling away, somewhat imperceptibly, behind the scenery.