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.

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