Double Jeopardy (Scotland) Bill: Stage 2
Item 9 is stage 2 consideration of the Double Jeopardy (Scotland) Bill. Members should have in front of them the bill, the marshalled list and the groupings.
Section 1—Rule against double jeopardy
Amendment 32, in the name of Robert Brown, is grouped with amendments 33 to 41.
Amendment 32 and the other amendments in the group all relate to section 3. We heard evidence at stage 1 on the background to the provisions on admissions evidence. We also heard suggestions from the Scottish Law Commission that, if it had been faced with the bill’s present major proposals when it prepared its report, it might have taken the view that admissions evidence was just a species of new evidence and should be treated accordingly. That is broadly my position on the matter. As I suggested in the stage 1 debate, it would be more logical, straightforward and appropriate if that reality were recognised and admissions evidence were incorporated into the new-evidence rules because, it seems to me, the same criteria apply.
I accept that the argument about what happens about the new-evidence exception has the nuance that the Government intends to apply it to a wider range of offences, but I ask the cabinet secretary whether that is based on reality and what justification there is for having two different approaches. The rule against double jeopardy has its foundation in the idea that people should not have to undergo a second trial except in the most exceptional circumstances. We have all accepted that a tainted trial is one such circumstance—that is perfectly straightforward—and there would be a public outcry if major and substantial new evidence came forward that could not be considered. I also know that particular people have made representations about the question of admissions, when people boast after their acquittal. There are other ways of tackling some of those things, for example with perjury charges, charges of wasting police time and all sorts of other arrangements so, in terms of the efficiency of the system, there is a lot to be said for confining the operation of the new provisions at least to cases that go on indictment. I think that the same arguments apply in the case of admissions and new evidence.
That is the background to what I am proposing. I am not necessarily against the cabinet secretary’s move to make High Court cases the cut-off for new evidence. Perhaps the exception could be a bit wider for admissions evidence and take in cases on indictment more generally but, broadly, the rule and test should be the same and new evidence should include admissions because it is the same sort of evidence. I do not see the justification for dealing with it in two different sections and for having two different types of starting-off criteria, as is proposed.
I move amendment 32.
Before I invite other members to speak, I note that I should have drawn members’ attention to the pre-emption information on the groupings. I do so now.
Now that I have heard Robert Brown and have a clearer idea of where he is going on the issue, and knowing where the cabinet secretary is proposing to go on it, I think that the idea that we separate admissions from new evidence is entirely appropriate. If I am right in thinking that we will agree that the new-evidence exception should be only for those cases that are heard in the High Court on indictment, I do not believe that the admissions exception should have such a narrow focus.
If the new-evidence exception were going to apply to much wider range of cases, the idea of having admissions in the same packet might have made sense. However, if we are narrowing the new-evidence section, as the cabinet secretary will propose and which I will certainly support—I said as much at stage 1—then separating out the admissions exception and allowing it to have a wider locus is entirely appropriate. I understand why Robert Brown lodged his amendments but, in light of the cabinet secretary’s proposals, his approach may now be entirely inappropriate.
I broadly agree with Nigel Don. It comes down to the central issue of seeing that justice is done. If an admission is made either pre or post-acquittal by someone who is found not guilty, the victim will feel that they have been badly done by. Our drive should be to ensure that justice is done for victims. I therefore believe that the bill’s provisions and the cabinet secretary’s proposed amendments in this regard are correct.
As members have said, the amendments in this group relate to the new-evidence test and the admissions exception. Mr Brown is right that good arguments have been proposed south of the border in this area. However, I think that the bill is right in treating admissions as a distinct form of new evidence. An admission is evidence that flows entirely from the actions of the acquitted person. The Scottish Law Commission in its report made a persuasive case that, by making the conscious decision to admit the crime, the acquitted person is in effect waiving their right not to be tried again. That argument simply does not arise with other forms of new evidence.
The court will have to consider the circumstances of individual cases, but there can be no disputing that it is undesirable, disrespectful and offensive to have an acquitted person openly brag about their guilt. Permitting that to happen without censure risks bringing our justice system into disrepute. That is why it is important to allow an admission to justify a new trial for any type of offence under the bill.
Amendment 33 would remove section 3, which would mean that an admission could justify a retrial only where the case was prosecuted originally in the High Court. Because I do not think that admissions should be limited in that way, I believe that section 3 should be retained. Although I fully accept that it would be rarely used in less serious cases, I feel that it is important to the public’s perception of justice that an admission should be capable of permitting a new trial in any case, whatever the crime. That would send a strong signal that bragging about one’s guilt will not be tolerated in our society, regardless of the nature of the offence in question.
The second effect of amendment 33 would be to limit the use of an admission so that only one double jeopardy retrial would ever be possible on the basis of an admission. That is of course broadly as it should be. There is no suggestion that acquitted persons should ever be subjected to repeated double jeopardy trials. That is why section 4, on new evidence, is limited to one use only, even if further new evidence were to come to light. The reason why section 3 on admissions is not limited to one use is to defeat the prospect of a person acquitted at both the original trial and a double jeopardy trial publicly bragging of having twice evaded justice. The effect of amendment 33 would be to allow such bragging to occur with no risk of retrial for the offence. Once again, such a situation will be unlikely, but it is still desirable, as a matter of public policy, to close the door on such bragging and allow the potential for action to be taken.
Amendment 4, which we will debate later, will apply the rigorous tests in section 4 to admissions. The High Court will subject any application under the bill to a stringent review and will always have to be confident that any new trial would be in the interests of justice. That provision should safeguard against any acquitted person being prejudiced by the differences between section 3 and section 4 that I have outlined.
I therefore invite Mr Brown not to pursue amendment 33. I also suggest that his other substantive amendments—amendments 34 and 35—are simply not needed. Those amendments would insert specific reference to admissions into section 4 and would apply two additional tests to admissions: one on sufficiency of evidence and one on credibility. I do not think that amendment 34 is required, because if section 3 were to be removed, section 4 as currently worded can already cover admissions. No amendment is required to achieve that aim.
On amendment 35, I can see why Mr Brown would wish to insert provisions on the quality of any admission, but I do not think that it is necessary, because the other tests in section 4 would already capture the provisions on credibility and sufficiency that amendment 35 seeks to insert. The two tests being applied will ensure that, to justify a retrial, any admission will have to strengthen substantially the case against the accused and it will have to be highly likely that a reasonable jury would have convicted had the admission been available before. I do not think that it would be possible for any court to conclude that an admission that satisfied both those tests would somehow fail to be credible or provide sufficiency of evidence. The elements that amendment 35 would add would not assist either the court or the defence; indeed, there is a risk that their addition in relation to admissions alone might have an unintended impact by suggesting to the High Court that a somehow different standard should be applied for other types of new evidence.
I therefore invite Mr Brown not to press his amendments.
I have listened carefully to the arguments, because this is an important issue. If I may say so, I thought that the cabinet secretary overegged the pudding greatly with regard to the possibility of repeat trials. It seems to me that there are good reasons why there should not be repeat trials in relation to this or other matters. The idea of there being a second retrial after an initial double jeopardy retrial seems positively ridiculous.
Two issues arise out of this, and perhaps I concentrated too much on one of them. The first is whether the tests that apply to new evidence and admissions evidence should be the same. The second is whether the type of offences covered by the two areas should be the same. Because the cabinet secretary was making changes by removing schedule 1 and putting in the High Court as the cut-off point, I left over the issue whether we should widen or narrow the type of offences in admissions cases, which could be looked at later. I invite the committee to concentrate on whether there are substantial differences between new evidence in general terms and new evidence in admissions that make it necessary to apply different tests to them—leaving aside the issue of what sort of cases they should apply to.
As I have said before, admissions are notoriously unreliable. The committee and the Parliament have already had to deal with the question of the use of admissions evidence following the Cadder judgment, which is obviously a broader issue. Every significant publicised murder can lead to a large number of people coming forward to confess to the crime, which they did not commit. There are therefore definite limitations to the extent to which this sort of evidence can be used.
I stand by the position that, as the cabinet secretary said, admissions are a distinct form of new evidence and should be treated in that way in the bill. I invite the committee to agree to amendment 32 and to leave aside the question whether a wider category of offence should be covered, because there is a subsequent debate to be had on that matter.
Given the probable line-up of votes on this issue, I will take a test vote on amendment 32 and will not press other amendments in the event that amendment 32 is defeated.
The question is, that amendment 32 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Brown, Robert (Glasgow) (LD)
Against
Butler, Bill (Glasgow Anniesland) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Don , Nigel (North East Scotland) (SNP)
Kelly, James (Glasgow Rutherglen) (Lab)
Lamont, John (Roxburgh and Berwickshire) (Con)
Thompson, Dave (Highlands and Islands) (SNP)
Watt, Maureen (North East Scotland) (SNP)
The result of the division is: For 1, Against 7, Abstentions 0.
Amendment 32 disagreed to.
Section 1 agreed to.
Section 2—Tainted acquittals
11:45
Amendment 1, in the name of the minister, is grouped with amendments 2, 5 to 9 and 11.
This group of amendments makes some minor changes to the bill to remove text that is considered to be unnecessary. Amendments 1, 2 and 5 will ensure that there is sufficient flexibility in relation to the charges to be heard at any new trial. Amendment 6 acknowledges that the subject of an application under section 4 is not at that point an accused person in the usual sense, their having been acquitted in the earlier trial. Amendments 7 to 9 and 11 are intended to improve and simplify wording in the bill.
I move amendment 1.
Amendment 1 agreed to.
Section 2, as amended, agreed to.
Section 3—Admission made or becoming known after acquittal
Amendment 2 moved—[Kenny MacAskill]—and agreed to.
Amendment 3, in the name of the minister, is grouped with amendments 4, 12 and 13.
Amendments 3 and 4 respond to the committee’s stage 1 report. They replace part of the test for the High Court to use in assessing whether an admission would justify a double jeopardy retrial with elements of the general test for new evidence that is used in section 4. Although I think that the current test in section 3 would have worked, I accept the argument that there is merit in applying the same test to all forms of new evidence. We have already considered the appropriate way to assess admissions in double jeopardy cases, and I do not propose to revisit those arguments.
Amendment 4 applies the essential elements of the new-evidence test to admissions and, with amendment 3, removes the parts of the existing test for admissions that become unnecessary as a result of amendment 4, that is, the references to credibility and sufficiency, which were discussed in relation to Robert Brown’s amendment 35. As indicated, those elements are no longer necessary because of the adoption of the more rigorous tests of section 4.
Amendments 12 and 13 carry forward the change of tests to admissions considered under section 8, which deals with situations in which murder was not charged at the original trial but evidence later emerges that the acquitted person admitted to committing murder.
I move amendment 3.
Amendment 3 agreed to.
Amendment 4 moved—[Kenny MacAskill]—and agreed to.
Amendment 33 not moved.
Section 3, as amended, agreed to.
Section 4—New evidence
Amendment 20, in the name of the minister, is grouped with amendments 21 to 25 and 28 to 31.
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.
I move amendment 20.
I welcome the cabinet secretary’s proposals, as they are a more elegant and satisfactory solution than the existing one, which involves all the usual difficulties with having a list. The measures will keep intact the unusualness of an exception to the general double jeopardy rule. I am glad to support the cabinet secretary’s recommendations.
I echo Robert Brown’s comments. The proposals will cover cases such as attempted murder. I do not see why an attempted murder should be treated differently from a murder just because it did not happen to succeed. What is the difference in the crime? The proposals also recognise that the issue is one of public perception. It is about the public outcry when the law cannot cope. The bill should be about only the most serious offences, and the proposals are an elegant way of getting to the most serious offences, regardless of what they happen to be.
Amendment 20 agreed to.
Amendments 5 and 21 to 25 moved—[Kenny MacAskill]—and agreed to.
Amendment 34 not moved.
Amendment 26, in the name of the minister, is grouped with amendment 27.
Amendments 26 and 27 uphold the general principle that the Lord Advocate may only ever make one new-evidence application in relation to any one offence, but they elaborate on the situation in which the indictment at the original trial contained several distinct offences. Should new evidence be relevant to only one or some of the offences from the original trial, the amendments will allow the Lord Advocate to focus the application on those particular offences. If, at a later date, further new evidence emerges in relation to the remaining charges, they could in theory be subject to a further application under the bill. That is important when the indictment contains a number of serious matters and is not focused on a single serious offence.
I move amendment 26.
Amendment 26 agreed to.
Amendments 27, 6 and 7 moved—[Kenny MacAskill]—and agreed to.
Amendment 35 not moved.
Amendment 28 moved—[Kenny MacAskill]—and agreed to.
Section 4, as amended, agreed to.
Schedule 1—New evidence: relevant offences
Amendment 29 moved—[Kenny MacAskill]—and agreed to.
Section 5—Applications under sections 2, 3 and 4
Amendment 36 not moved.
Section 5 agreed to.
Section 6—Further provision about prosecutions by virtue of sections 2, 3 and 4
Amendments 37 and 38 not moved.
Amendment 8 moved—[Kenny MacAskill]—and agreed to.
Amendment 39 not moved.
Amendment 9 moved—[Kenny MacAskill]—and agreed to.
Amendment 10, in the name of the minister, is in a group on its own.
Amendment 10 ensures that either party in a new trial authorised under one of the exceptions to double jeopardy can lead evidence that could have been employed at the first trial, subject to it still being admissible under the rules of evidence as they apply at the time of the second trial. It will ensure that evidence can be led about other related charges from the original trial. That will allow a full range of evidence to be deployed at the second trial, enabling the court to consider all aspects of the case.
Amendment 10 ensures that any prosecution evidence that it is competent for the Crown to lead only because of this provision must be drawn to the attention of the accused, to ensure that the accused has fair notice that the evidence will be led.
I should also inform the committee that the Government is considering the disclosure regime that is applicable to double jeopardy issues under the bill, and will write if it is thought that consequential amendments are needed at stage 3.
I move amendment 10.
Amendment 10 agreed to.
I point out that if amendment 11 is agreed to, I cannot call amendment 40 for pre-emption reasons.
Amendment 11 moved—[Kenny MacAskill]—and agreed to.
Section 6, as amended, agreed to.
Section 7—Plea in bar of trial that accused has been tried before
Amendment 41 not moved.
Section 7 agreed to.
Section 8—Plea in bar of trial for murder: new evidence and admissions
Amendments 12 and 13 moved—[Kenny MacAskill]—and agreed to.
Section 8, as amended, agreed to.
Section 9—Plea in bar of trial: nullity of previous trial
Amendment 14, in the name of the minister, is grouped with amendment 15.
Section 9 applies where the prosecutor argues that a trial should continue because a previous decision on the same or substantially the same issue was null and void. The committee in its stage 1 report queried the need for section 9, but amendments 14 and 15 illustrate the need for its retention.
The section ensures that where a question of nullity arises at the sheriff court, it will be referred to the High Court for consideration. That is a special procedure for this unusual situation, which does not appear in the more general section that covers pleas in bar of trial. Amendments 14 and 15 extend that provision to cases that are first heard in a justice of the peace court. I stress that section 9 is restricted to very rare cases in which the prosecutor was unaware of the nullity when beginning proceedings. The application procedure in section 12 should be used where the prosecutor was already aware of any nullity.
I move amendment 14.
I have one small query for the cabinet secretary. Amendment 14 refers to justices of the peace as well as sheriffs, and it crossed my mind to wonder whether stipendiary magistrates will be covered by the expression “a justice of the peace”, or indeed by the expression “sheriff”.
They will be, yes.
Amendment 14 agreed to.
Amendment 15 moved—[Kenny MacAskill]—and agreed to.
Section 9, as amended, agreed to.
Section 10 agreed to.
Section 11—Eventual death of injured person
12:00
Amendment 16, in the name of the minister, is grouped with amendments 17 to 19.
Amendments 16 and 17 provide that where a person is acquitted of an offence involving the physical injury of another person, and the injured person subsequently dies, apparently from their injury, the prosecutor will require to apply to the High Court for authority to prosecute for the death. In considering the application, the High Court will have to be satisfied that the prosecution would be in the interests of justice.
The Government carefully considered the committee’s suggestion that we consider whether some form of new-evidence test should be applied to such a case. Although the situation concerns a related topic, it is not a double jeopardy situation—I stress that point, having looked again at the matter. I appreciate that the concerns that were expressed were well intentioned, but I consider that the approach in amendments 16 and 17 will provide the right safeguards for the accused. The Lord Justice Clerk indicated to the committee that an application procedure would be appropriate. Amendments 16 and 17 will ensure that High Court scrutiny will be applied at a preliminary stage. The bill will ensure that a higher test for the prosecutor and the courts will apply than is currently provided for by the common law where the person was acquitted at the earlier trial.
Amendment 18 provides that the application procedure that amendments 16 and 17 create will be subject to the terms of the Contempt of Court Act 1981, which makes it a contempt of court to publish any material that would create
“a substantial risk of prejudice”
to the proceedings.
Amendment 19 will remove the interests-of-justice test in schedule 2, which requires that the court must be satisfied at a preliminary hearing in any second trial that it is in the interests of justice to proceed to trial. The provision will no longer be required, as a result of amendments 16 and 17.
I move amendment 16.
The proposed approach will shift the balance appropriately in what is a rather strange situation that does not occur often. The amendments probably get the balance about right.
Amendment 16 agreed to.
Amendment 17 moved—[Kenny MacAskill]—and agreed to.
Section 11, as amended, agreed to.
Sections 12 and 13 agreed to.
Section 14—Subordinate legislation
Amendment 30 moved—[Kenny MacAskill]—and agreed to.
Section 15 agreed to.
Schedule 2—Consequential amendments
Amendments 18 and 19 moved—[Kenny MacAskill]—and agreed to.
Schedule 2, as amended, agreed to.
Section 16—Short title, interpretation and commencement
Amendment 31 moved—[Kenny MacAskill]—and agreed to.
Section 16, as amended, agreed to.
Long title agreed to.
That ends stage 2 consideration of the bill.
12:03 Meeting continued in private until 12:47.