Double Jeopardy (Scotland) Bill: Stage 1
Good morning. The first item of business is a debate on motion S3M-7819, in the name of Kenny MacAskill, on the Double Jeopardy (Scotland) Bill. We have a fair amount of time in hand, so I will not be stopping members unless we are in extreme circumstances. I call Kenny MacAskill to speak to and move the motion.
09:15
Double jeopardy is a fundamental legal principle that provides an essential protection against the state repeatedly pursuing an individual for the same offence. The Double Jeopardy (Scotland) Bill enshrines that ancient principle in legislation for the first time in our history. The bill is also designed to make that principle fit for the 21st century. Reform is required to take account of advances in science and because an acquitted person should not be able to walk free from court and boast with impunity about getting away with it. It is required to ensure public confidence in our justice system that, wherever possible, justice will always be done.
The need for reform has been widely recognised, and I am heartened by the level of support that the proposals have received. Careful work by the Scottish Law Commission was followed by a debate in the chamber last March. Thereafter, a Government consultation exercise took place last summer and a thorough stage 1 report was provided by the Justice Committee just last week. I record my thanks to all those who took part in that process in whatever capacity, and I am grateful to the committee for its detailed and careful consideration of the bill. I am conscious of the committee’s full schedule this session and the effort that was required to prepare and publish its comprehensive report so swiftly.
During stage 1 scrutiny there were, understandably, differences of opinion on some aspects of the reform. I now turn to the parts of the bill that have attracted the most comment. The bill will allow a new trial when an acquittal has been tainted. It seems clear to me that people should not be able to evade justice because of threats or bribery, and I am pleased that the committee endorses that provision. At the heart of this reform is the idea of allowing a second trial when new evidence emerges that casts doubt on an acquittal. There appears to be a consensus in favour of that concept and its application to historical cases. Some have argued that applying the change retrospectively will be unlikely to have a practical effect, because the passage of time might have diminished the evidence that is available. I accept that that will be true in some cases, but not necessarily all.
One of the practical problems with retrospectivity that the committee came up against and raised in its report was the potential destruction of productions at the conclusion of the original trial. Can the minister enlighten us on the implications of that?
The committee raised a valid point, which relates, in many cases, to the attitude and actions of the police and the Crown Office and Procurator Fiscal Service. The Crown gave a full explanation of how it deals with such matters. On many occasions, productions are kept routinely, but it is a judgment call for the Crown. If Mr Brown or any other member wants me to go back to either the Lord Advocate or the Solicitor General for Scotland on particular issues, I will be happy to do so. However, it seems that the Crown Office has a procedure for dealing with productions, not all of which from every case in Scotland can be held, otherwise the service would be bursting at the seams. Nevertheless, in appropriate circumstances, productions will be retained for a relevant period, and that is a judgment call for the Crown. If members have any information or issues that they want to clarify, the law officers and I would be happy to speak to them.
As recently as December, the conviction of Mark Weston in an English retrial for the murder of Vikki Thompson underlined the value of retrospectivity. The bill will allow for retrial based on two broad categories of evidence. The first of those is admissions by the accused. The second is generally referred to as new evidence, and includes evidence that is obtained through advances in DNA technology. There are differences in the nature of the two categories, and the bill treats them differently in relation to the tests that are applied.
Substantial requirements will apply to admissions, but I accept the Justice Committee’s conclusion that there is sense in bringing the treatment of admissions and new evidence closer together. I therefore propose to lodge amendments to reflect that. The effect of that change will be that an admission will have to strengthen the case against the accused substantially in order to justify a retrial. It will also mean that the court will have to be satisfied that it is highly likely that a reasonable jury would have convicted had the admission been available before.
I propose, however, to keep some points of distinction between admissions and new evidence, because I believe that persons who admit their guilt lose the right to absolute certainty that they can never be brought back to trial. No one should be able to brag about their guilt with impunity. That undermines the system and deeply wounds and scars the victims of crime and their families. I therefore think that the admissions exception should apply to all types of criminal case. The exception for other forms of new evidence will be available only for more serious crimes. Both exceptions are targeted at serious offences, and that is where the Crown Office will focus its attention.
Does the cabinet secretary share my substantial distaste—which is widespread in society—at criminals who, having been found not guilty, subsequently exploit that verdict, confess to having committed crimes and make significant sums of money from certain disreputable parts of the media?
Absolutely. That is a matter that Paul Martin, who is not in the chamber, has frequently raised and something that we have consulted on and have worked on with Governments, both current and past, south of the border. All fair-minded people think that there is something reprehensible about what Stewart Stevenson describes. Whether through a tabloid or through a book, people should not be able to make financial gain at the expense of others.
There is an important point of principle in making it at least possible to pursue persons who boast of having evaded justice, whatever the crime. The committee considered carefully the question of which offences should be covered by the exception for other types of new evidence. In that sort of situation, the question mark over guilt would arise not from a confession but from an external factor such as DNA material or a new witness. There seems to be a consensus that a new trial in such circumstances should be possible only for the most serious offences. That will provide certainty in the law and keep the focus on serious crime.
The question of which offences should be covered is a difficult one, however. The Scottish Law Commission suggested limiting it to murder and rape. The bill goes further by adding other serious sexual offences and culpable homicide, and valid arguments can be made to include other crimes such as attempted murder or serious drug offences. The Justice Committee questioned whether any list of that sort would ever be adequate, however, and suggested simply restricting the new-evidence exception to cases that were prosecuted originally on indictment or to cases in the High Court. I agree that the focus must be on serious crime, and I will give further consideration to the committee’s views. I also want to hear members’ views on the issue.
The Government is genuinely open to ensuring that, when new information or evidence comes to light regarding those who have perpetrated the most serious offences, we are capable of dealing with it. The European convention on human rights sets parameters and for natural justice there is some requirement for certainty, but I am sure that, if we work together in the chamber, in committee and in Government, we will reach a solution that will provide what is required.
Section 11 of the bill deals with the situation when an accused has been prosecuted for assault or some other offence involving physical injury, but the victim later dies as a result. At present, the common law allows a further prosecution for causing the death, regardless of whether the accused was convicted or acquitted of the original assault. In order to ensure that the law is consistently and equitably applied, the Government wishes to enshrine that in statute. It is right that such an important and fundamental principle is recognised and retained in our legislation and in our system. I welcome the committee’s general support for that provision. The committee appears to accept that the bill takes the right approach in dealing with the accused who was convicted of the original assault, for which I thank it. I also thank the committee for its pragmatism in recognising the practical reality that demands that more resources are allocated to a murder investigation compared with an apparently simple assault.
Discussion of the provision has focused mainly on whether an accused can be tried for murder after being acquitted of the original assault. I believe that the common law in Scotland is correct in allowing the accused to be tried for causing the victim’s death. Such occasions are rare, but they do occur, therefore it is important that they are covered by the law and that victims and their families are protected.
The issue seems to centre on the test before we allow a prosecution for murder following an acquittal. Does the cabinet secretary accept that, if the principle of double jeopardy is to have meaning, we must have a test before allowing a further prosecution, and that it has to be of the nature of the new-evidence test, if not precisely the same?
Yes. Mr Brown is correct. That point was flagged up by the committee and I will do my best to answer it. He is correct that a high standard and a high bar must be set.
The bill provides that when the accused has been acquitted of assault, the court should apply an interests of justice test. The committee has asked the Government to consider whether in that situation some other additional test should be required before a retrial is allowed for causing the death. The committee has suggested that some form of new-evidence test is required.
I am happy to consider the issue ahead of stage 2, but I must stress that it would not be a double jeopardy situation. The second trial in that situation would not be a retrial. The accused would never before have been tried for causing the death of the victim, whether the charge was murder or culpable homicide. He would have been dealt with previously on a lower charge. We would be dealing with a different offence, whereas the double jeopardy exceptions are designed to hear the same offence again. In the scenario, it would not be a straightforward matter of the Crown rehearsing the same evidence. The court would be considering a different offence, which by its very nature would require additional facts and would require the court to consider questions of fact and law that were not considered in the assault trial.
There will always be additional evidence in such cases. The very fact that a death occurred will require the Crown to produce further evidence. Medical and forensic evidence will be required to link the death of the victim to the actions of the accused. The previous trial would not and could not have considered that.
The bill provides that when there has been an acquittal for assault, the court will have to consider whether it would be in the interests of justice to proceed with the new trial. That requirement, which is new and does not feature in the common law, will offer additional protection to the accused. The Crown will need to consider carefully the evidence that is available to it and the court will need to decide whether it is in the interests of justice to proceed.
The committee is right to point out that we should tread very carefully and with great caution in such circumstances. I believe that the interests of justice test that is contained in the bill will ensure that accused persons are treated fairly, but I am happy to consider the point further, either individually with members—be it Mr Brown or anybody else—or directly in discussion with the committee.
I express once more my thanks to the committee and to all those who contributed to the process of bringing the bill to Parliament.
I hope that the exceptions to double jeopardy that are set out in the bill are seldom used. As was narrated in evidence, it is anticipated that only a handful of such cases will arise over many years, but they will be cases of great significance, both for the individuals concerned and, especially, for the whole justice system. We are, after all, focusing on cases where it appears that justice was not done, which cannot be right.
As I said, such cases thankfully are rare, but each one involves suffering by victims and their families and can affect faith in our justice system. We need to get an element of closure whenever we can, and we need to ensure that we bring to trial perpetrators of serious and heinous offences. Allowing a second trial in exceptional cases will lessen suffering and promote public confidence. I am confident that the bill will achieve that aim, and I await with interest the views of members.
I move,
That the Parliament agrees to the general principles of the Double Jeopardy (Scotland) Bill.
09:30
The bill had its genesis in the Scottish Law Commission’s report on double jeopardy, which was published in December 2009. The report concluded that reform was needed in order to clarify and modernise the existing law surrounding double jeopardy. The bill is largely based on that report and seeks to achieve such reform.
The Justice Committee met on four separate occasions to consider the bill and to take oral evidence from witnesses, including the Scottish Law Commission; the Crown Office; the Faculty of Advocates; human rights representatives; the Lord Justice Clerk, Lord Gill; and the Scottish Government.
I thank all those who gave evidence to the committee and congratulate them on the quality of that evidence. I also thank the clerking team for all their work, and in particular Andy Proudfoot, who did a great deal of work on the stage 1 report prior to leaving us temporarily on paternity leave. It was a good piece of work all round.
Section 1 of the bill places the general rule against double jeopardy on a statutory footing. The double jeopardy rule plays a fundamental role in our justice system. The general principle protects the acquitted from the threat of further prosecution for the same offence and from prosecution for a fresh charge based on the same actions. However, as Patrick Layden QC pointed out, there are also “various unclear areas” surrounding the principle. Evidence received by the committee showed wide support for placing the principle on a statutory basis. The committee recognises that and agrees that, in the interests of clarity and affirming its position in law, the rule should be set out in statute.
Under section 2, an acquitted person could face further prosecution if prosecutors can prove that certain offences against the administration of justice were committed and tainted the acquittal. It is clear that there has been public anxiety about that, which Mr Stevenson has articulated. However, the evidence that the committee received on section 2 was mixed. On one hand, the Crown Office felt that the proposals struck an appropriate balance and the Lord Justice Clerk assured the committee that the judges were satisfied with the safeguards in section 2 to deal with tainted acquittals. On the other hand, a number of witnesses raised concerns. For example, the Law Society of Scotland and the Scottish Human Rights Commission questioned whether the proposals should apply to all offences, rather than only more serious offences considered on indictment. They also questioned the possibility of a second prosecution being raised in instances when the acquitted person had no involvement in the tainting of the first trial. The cabinet secretary contested both those concerns, fairly robustly, on the basis that,
“However serious the charge, people should not benefit from attempts to pervert the course of justice and criminal trials.”—[Official Report, Justice Committee, 21 December 2010; c 3993.]
He has repeated that view this morning.
Taking everything into consideration, the committee supports the provisions outlined in section 2 and believes that, in the interests of protecting the integrity of our justice system, they should apply regardless of whether or not the acquitted person was personally involved in the tainting. The committee is also satisfied with the tests that will have to be met and the protection that the balance of probabilities test, in particular, will provide. The committee would like to highlight that the existing law on perverting or attempting to pervert the course of justice will remain an available option. A retrial will therefore not necessarily have to be sought in every instance.
Section 3 makes an exception to the double jeopardy rule by making it possible to reprosecute someone based on admissions that are made or become known after acquittal. There has also been public concern about that, to which the cabinet secretary referred. During evidence taking, concerns were expressed about the extent of offences to which the section will be applicable and the potential for repeated prosecution. Despite those concerns, the committee is satisfied that appropriate checks are in place to ensure that the measure will be used only relatively rarely and only when there is sufficient merit in doing so. It was also questioned whether the tests in section 3(4) are rigorous enough. However, taking all the evidence into consideration, the committee concludes that the provision is workable as it stands.
The committee agrees with Lord Gill that in the preliminary stages it is the judge’s responsibility to assess the credibility of admissions, and reliability—beyond the need for corroboration—is left for the jury to decide later, during the trial. The Scottish Law Commission questioned whether section 3 was necessary at all, given that it could, in theory, fall under the general new-evidence exception in section 4. The committee recognises that point and invites further discussion on whether, in the interests of streamlining, it might be better to incorporate the two exceptions. That should be discussed and dealt with at later stages in the proceedings. However, we also note the cabinet secretary’s response to the Subordinate Legislation Committee, which highlighted that the new-evidence exception will be limited to a specific range of offences, whereas the admissions exception will cover all offences. The committee, therefore, welcomes the Scottish Government giving further consideration to the matter.
Section 4 permits persons to be reprosecuted if new evidence comes to light. Again, the committee received mixed evidence on the issue. Witnesses from the Crown Office supported the general new-evidence exception and felt that it struck a “proportionate balance” between the rights of the accused and the rights of victims. Other witnesses either had reservations or, in the case of the Law Society of Scotland, supported the principle but questioned whether aspects of the current test would go far enough. However, after taking those various viewpoints into consideration, the committee concluded that the inclusion of a general new-evidence exception should be supported and that the tests in the bill are appropriate.
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.
Sections 5 and 6 contain commonsense provisions, and the committee is content with them.
Section 7 provides for a broader principle, in addition to the double jeopardy rule, against the unreasonable splitting of cases. The committee is content with the provisions that are included in the section, particularly in light of the Crown’s assurances that it restates current practice.
Sections 8 to 10 set out further provisions about pleas in bar of trial. Although section 8 attracted little attention from witnesses, Patrick Layden raised concerns over section 9, which deals with cases in which the prosecution’s argument against the plea in bar of trial is that the original trial was a nullity and therefore not valid. Mr Layden stated that that is
“simply unnecessary, overcomplicates the legislation and should be removed.”—[Official Report, Justice Committee, 16 November 2010; c 3767.]
In light of that, the committee asks the Scottish Government to explain more fully, either today or later, why section 9 is necessary in addition to sections 7(4) and 12.
Section 10 applies where the accused was originally tried in a jurisdiction outwith the United Kingdom and sets out the factors that the court is to consider in deciding whether it is in the interests of justice for a retrial to proceed. The section attracted some comment. The Faculty of Advocates did not object to the proposal but questioned how it would work in practice. It stated:
“one of the difficulties will be in establishing the standards that have been applied in the context of a foreign prosecution.”—[Official Report, Justice Committee, 7 December 2010; c 3917.]
At the same time, however, measures must be in place for instances in which a previous trial occurred in a jurisdiction that does not uphold our standards of justice. The committee is satisfied with the level of discretion that the section affords courts in deciding whether or not a retrial should proceed in such instances.
Does the member share my concern about second prosecutions taking place in a different jurisdiction from the original, in respect of something that we cannot deal with here but which, nonetheless, is an issue: a circumstance in which, following an acquittal in a Scottish court, someone is taken to another country where there is no test of the evidence at that point—for example, the United States—and prosecuted there?
That is an interesting point, and I concede that the issue could be fraught with difficulty in certain circumstances. We have to rely on the judicial processes that are carried out furth of these shores being adequate and affording the appropriate protections for accused persons. Stewart Stevenson’s point is not without merit.
Section 11 allows a person who is convicted or acquitted of assault to be tried for homicide if their victim later dies from their injuries. There are problems with that, as the provision applies regardless of whether or not the person was acquitted or convicted of assault. Evidence received by the committee was deeply divided over the issue. The committee notes the concern that was expressed by the Faculty of Advocates and the Law Society in that regard and feels somewhat sympathetic towards the view that an acquitted person should not face the threat of retrial in the absence of incriminating evidence in the first trial.
However, homicide is a distinct offence under Scots law and the proposal maintains the current common-law approach towards retrial under those circumstances. Not only does that capture the seriousness of the offence but, as the Crown Office stated during evidence, murder inquiries are usually much more extensive than assault inquiries and witnesses are
“more likely to come forward in a murder investigation than in an investigation of an assault, even of assault to severe injury.”—[Official Report, Justice Committee, 16 November 2010; c 3784.]
That is logical and understandable. In light of that, the committee wishes to support the proposal and invites the Government to consider whether adding a new-evidence requirement might be appropriate.
Section 12 deals with the nullity of proceedings on previous indictment or complaint. No objections were received, so the committee is content with the provision and the balance that it achieves between the interests of the prosecution and the accused.
In contrast, section 13, which deals with the retrospective application of the legislation, proved to be highly contentious. Indeed, a host of issues was raised during the evidence-taking process. Concerns were raised about compliance with the ECHR. However, having heard the evidence on that matter, the committee is content that the provision is ECHR-compliant.
Most objections were based on the argument that including a retrospective aspect would deprive acquitted persons of the certainty that they would not be tried again for the same offence. That is a powerful argument. However, the committee also believes that it is important that justice is given the opportunity to prevail.
It is anticipated that, due to current rules covering the retention of physical evidence, the use of the legislation retrospectively will occur only very rarely, which perhaps addresses the point that Mr Brown raised. The committee does not believe that the physical difficulty of storing evidence is a ground for discarding the retrospective aspect of the legislation. Therefore, the committee is inclined to agree with the Crown Office and others that, should compelling evidence come to light, the bill should apply
“regardless of whether the original trial was held before or after the new reforms.”—[Official Report, Justice Committee, 16 November 2010; c 3783.]
This has been a fairly consensual debate. The committee’s inquiry was thorough. We have flagged up a number of issues that need to be addressed, and I am confident that they will be.
There is a need for the provisions in statute. They are a necessary adjunct to Scots law, and the committee is content that the bill should proceed today.
09:45
Scottish Labour welcomes the Double Jeopardy (Scotland) Bill, which will introduce important reforms to our laws on double jeopardy. It will reconfirm that important principle in statute while also ensuring that, in future, there can be new proceedings against the accused in exceptional cases where there are clear reasons for believing that justice was not done in the original trial. We believe that the Scottish Government has broadly taken the right approach on this important issue and we look forward to supporting the general principles of the bill at decision time.
In our debate on the issue last year, we made it clear why the proposed change in the law is right. We all know that there are people in this country—victims of crime and their families—who believe that they have not received justice for very great wrongs that have been committed against them and their loved ones, and that there will be compelling evidence that they have indeed been denied justice thus far.
We know that the change in the law will apply to only a small number of cases, as Bill Aitken confirmed in his speech as convener of the Justice Committee, but that does not diminish its importance. There can be no more sickening sight than that of a killer walking from a Scottish court free from punishment for the crime and even, as the cabinet secretary said, bragging that they have done so. We have to accept that people who are guilty of serious crimes have evaded justice in Scotland. If we can properly rectify such injustices, we should do so.
Once again, we must thank the Justice Committee for its considered and informed scrutiny of the bill. As always, and as the convener summed up in his speech, the committee has drilled down into those areas of the bill where there will be a need for further consideration—for example, in determining the range of offences that the reform should cover. I welcome the fact that the cabinet secretary has said that he is willing to give further thought to those issues. However, what comes through in the committee report is the great deal of consensus that exists around the bill as introduced.
We made it clear in our ambitions for the legislation that it should be proportionate, that it should not result in an accused person being tried repeatedly for the same offence, and that there should be clear parameters for the situations in which it should apply. We believe that those things have been achieved in the bill through the provisions on trials that have been tainted or deemed null, the provisions on new evidence, and the fact that it will require special reasons not to accept pleas in bar of trial.
Of course, the Parliament must take care in considering the reform of a principle that has been part of Scots law for generations but, in considering the legislation thoroughly and diligently, the committee found that the general approach that is taken in the bill is indeed robust in achieving the changes for which the Parliament expressed its support almost a year ago.
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.
While the Justice Committee was scrutinising the bill, as the cabinet secretary said, Mark Weston was convicted at Reading Crown Court for the murder of Vikki Thompson in 1995. Indeed, the committee asks in its report whether that conviction could have been secured under the provisions in the bill. I am aware that there are differences between the approach to new evidence in the bill and the exceptions to double jeopardy that have been introduced in English law, but I hope that it can be shown that it will be possible to secure a conviction in similar circumstances under the bill. I hope that the cabinet secretary will be able to do that, as it is important that that can be shown.
The example of the changes that were made to the law in England and Wales in 2003 can give us confidence that the changes should work well here. In England and Wales, the opportunity now exists to seek prosecutions if there is clear evidence that justice has not been served, but it has evidently not created a situation in which accused persons are routinely retried for the same offence. At the time of our previous debate on the matter, of the six applications for retrial that had been determined in England and Wales, three had failed, and Mark Weston is the first person to face a second murder trial in England following the discovery of new forensic evidence. The provision has been used sparingly, but it has obviously been hugely important to the family of Vikki Thompson, as that case has now been concluded.
We look forward to debating the bill further at stage 2, but I stress that, at this point, we see no reason to demur from the approach that the Scottish Government is taking. We are always ready to challenge Government policy when we believe that it does not serve the victims of crime—indeed, we had just such a debate on sentencing policy this week. If, however, the Government brings forward proposals that we believe do serve the interests of victims, we will support them, and we firmly believe that the bill does just that. It is not only an important matter of justice for the victims of crime and their families who will be affected by the change in the law, but it will also be an improvement to our justice system.
We agreed with the Scottish Government’s response to the Scottish Law Commission and the consultation process that ministers engaged in was robust. The clear consensus that has been achieved at committee shows that the Parliament supports the bill and I am sure that it will support the general principles at decision time tonight. I am also pleased that we will be able to pass the bill in the current parliamentary session.
We hope that the legislation will be required in only a small number of cases, but there are individuals and families in Scotland who have sought it in the hope that the great injustices that they have had to endure can finally be rectified in our courts. The bill at least offers that opportunity and I hope that it will see a number of past wrongs righted. I also believe that it will safeguard the interests of justice in the future, and that is why we will support it.
09:52
When my colleague and party leader Annabel Goldie opened a debate on double jeopardy in February 2007, she expressed hope that common ground might be found to take this important issue forward. Unfortunately, the then Scottish Executive was not quite ready to engage properly on the issue. I am pleased that we are now at a stage where there is sufficient common ground to allow the matter to be progressed.
It is important to acknowledge at the outset the work of the Scottish Law Commission in producing the report that underpins what we are considering today. Although the bill is not a carbon copy of the report, it is a product of the commissioners’ hard work, expertise and knowledge, and we are in their debt for their efforts. The Justice Committee’s report adds further weight to the debate and we should also acknowledge the work that Bill Aitken and his colleagues have done on the bill.
Members will be aware that, although there has been an established principle for hundreds of years that an individual once tried and convicted or acquitted of an offence should not be subject to another prosecution for the same offence, the rule against double jeopardy has not been enshrined in statute before. We believe that the rule against double jeopardy is an important principle in the operation of our justice system and that it should be codified in statute. The finality of criminal verdicts allows individuals who are involved in a trial to get on with their lives in the knowledge that the matter has been resolved. It also provides a more general benefit in that public confidence in the court system is retained. The rule against double jeopardy also limits the reach of the state over individuals’ lives and protects individuals from the stress of repeat trials. Indeed, the rule is considered so important in the protection of liberty that it is written into the constitutions of many countries including the United States, Japan, Pakistan and South Africa. It is for those reasons that we agree that there should be a general rule against double jeopardy.
As with every good principle, there should be a few significant exceptions, which are outlined in the Scottish Law Commission’s report. It seems to me common sense that, if there is compelling new evidence of guilt that was not available at the time of the original trial, the Crown should be able to bring forward a new trial. Given the seriousness of such a step, however, it is right that that should happen only in exceptional circumstances and for the most serious of crimes. It is worth noting that provisions already exist in law for an individual acquitted of an offence to be retried for contempt of court or even perjury if it is clear that their acquittal was based on false evidence.
There is disagreement over certain exceptions, including the use of evidence that emerges after the trial, the list of offences for which a retrial could be brought and the new law’s retrospective nature. I am sure that the Justice Committee will examine those details in more detail at stage 2, but there is a clear direction of travel in favour of the bill’s general principles, which I believe reflect the interests of not just the accused, but the justice system and wider society.
The Conservatives are particularly pleased to be able to vote for the bill at decision time, as it brings forward a commitment that the Scottish Conservatives set out in their 2007 election manifesto. Indeed, we were the only party to call for these changes at that election although, to its credit, the SNP Government was quick to invite the Scottish Law Commission to review the double jeopardy law in November 2007.
There are many examples over the centuries of other countries borrowing or copying the better attributes of our legal system. However, in the area that we are debating today, we seem to be following the example of changes that have already been made in other countries. As Richard Baker has already pointed out, in England, the Macpherson report on the investigation into the tragic murder of Stephen Lawrence in 1993 contained a damning assessment of the role of racism in the Metropolitan Police. However, in that report, Sir William Macpherson also recommended:
“That consideration should be given to the Court of Appeal being given power to permit prosecution after acquittal where fresh and viable evidence is presented.”
In 2001, the Law Commission in England and Wales recommended that, in murder cases only, the Court of Appeal should have the power to quash an acquittal if reliable and compelling new evidence of guilt emerged and if a retrial would be in the interests of justice; moreover, in 2003, the Criminal Justice Bill, which reformed the law on double jeopardy, was passed at Westminster. Of course, that is not to say that we should blindly mirror developments in the legal system of England and Wales, but there is an imperative to consider such a change to the law in Scotland, given the nature of the issue and changes in evidence and how it is gathered. I also suggest that victims in Scotland would find it unacceptable that they might be denied the entitlement to justice afforded to those in England and Wales.
We believe that, although the principle of not being subject to double jeopardy is right and should continue, it should be reformed and restated in Scots law to allow exceptions where new evidence emerges in the form of an admission of guilt or in other new and compelling forms. Clearly, in allowing exceptions to the principle we will have to ensure that there are certain safeguards, but we are satisfied that the bill strikes the right balance between ensuring that we have a fair and effective justice system and protecting the rights of victims and individuals accused of crime.
I am pleased that the Government introduced the bill. The Scottish Conservatives will support it at decision time.
09:58
Like many justice bills that the Parliament has previously considered, the Double Jeopardy (Scotland) Bill is important legislation enshrining in statute the old Scots law principle that—to use the old word for an accused person—a panel who has tholed their assize and been acquitted cannot be tried again or put into double jeopardy on the same matter. The decision of the court or jury is final and, as the cabinet secretary pointed out, finality is an important—indeed, central—principle in our law.
The reason for the rule against double jeopardy is straightforward. Professor Paul Roberts of Nottingham University school of law put it thus:
“nobody could be safe and secure in their liberty, person, possessions or reputation if they were constantly at peril of being prosecuted by the state, condemned as a criminal, and subjected to penal sanctions. The government is allowed one attempt at bringing offenders to justice, but acquittals are final. What’s done is done, and we all move on.”
Some might say that such a rule is very necessary in other countries where democracy and the rule of law are less well entrenched; in Scotland, however, we have the protection of robustly independent courts, an independent Lord Advocate and procurators fiscal prosecuting in the public interest and an independent legal profession. I think it right to warn the Parliament to be ever vigilant in the defence of liberty, due process and the rule of law—and, indeed, the proper use of language. When politicians and journalists talk about “banging up criminals” rather than “prosecuting persons accused of crime”—who, after all, are under the presumption of innocence—we need to be on our guard against abuse of process. I am happy to say that there was no dispute in the Justice Committee about the importance of the general rule against double jeopardy; our consideration centred on the detail of the necessary exceptions to it.
The first exception is where the acquittal is tainted by someone, whether or not the accused, trying to bribe or threaten witnesses or the jury. It is easy to agree that a prosecution undermined in such a way is no real trial at all. In many cases, it might be possible to prosecute perpetrators of such offences against the proper course of justice but, in any event, it is quite proper that, if such a move taints the trial and if it is in the interests of justice to start again, that should be allowed—and, as the bill provides, allowed for all crimes. It does not matter whether the taint came from the original accused, someone associated with him or someone else to whom no connection could be established. It would be an unreasonable burden on the prosecution to require it to prove a link with the accused as well as a travesty of justice for the victims if a tainted prosecution was allowed to stand. Fortunately, tainted prosecutions, certainly through jury or judge tampering, are fairly rare in Scotland—and long may that continue to be the case.
However, a more common occurrence is the discovery of new evidence that was not and could not with reasonable diligence have been made available at the original trial. There might be advances in forensic science—indeed, the development of DNA testing is a clear example; a body might be discovered, yielding new evidence; or a new witness might turn up. John Lamont was right to mention in that context the Stephen Lawrence case, of which we are all aware.
Such things might or might not make guilt clearer. Even DNA is not conclusive; it all depends on where and how it was found and any implications that might be drawn. As a result, it is right that more stringent tests be met before a new trial is permitted and I felt that there was some force in certain witnesses’ view that the fact that new evidence substantially strengthens the case might not go far enough. I hope that the cabinet secretary will continue to examine that particular aspect.
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.
Section 3 also proposes a specific exception to the double jeopardy rule if an admission by the accused subsequently comes to light.
The member suggests that retrials should be permitted only for prosecutions on indictment. Does he acknowledge, however, that had the additional evidence been available, what was tried as a summary case might well have been tried on indictment and that, as a result, excluding summary cases from being revisited might put us in an uncomfortable position?
I take Mr Stevenson’s point but, to be quite frank, I think that such a situation would be pretty unusual. The question whether the prosecution was on indictment would probably depend on the nature and severity of the offence, rather than the adequacy of the evidence and I think that, in practical terms, we can probably disregard the member’s suggestion.
I was not persuaded by the Scottish Law Commission’s reasoning that a new admission by the accused was qualitatively different from other forms of new evidence and believe that its new view on the matter is correct. In any case, its original view emerged at a time when it was uncertain whether there should be a more general new-evidence exception and, as Patrick Layden QC said,
“there is little logic in leaving admissions out of the ordinary new-evidence exception”.—[Official Report, Justice Committee, 16 November 2010; c 3766.]
I welcome the minister’s comments on this matter, but I ask him to follow the committee’s suggestion and look more closely at the issue. Admissions are a notoriously unreliable area of evidence and many high-publicity murders bring forth a veritable army of people claiming for various deluded reasons to have carried out the killing.
Although some might think that I take a different view, I strongly support retrospectivity. It would be a scandal if someone who had been acquitted of a heinous murder or rape through lack of sufficient evidence could not be prosecuted again in a clear case where, say, DNA evidence materialised later that demonstrated compelling evidence of guilt. There would be a public outcry if, in such situations, a serious criminal could not be prosecuted and put behind bars. The central point is that we are not creating a new crime. A new offence, rightly, should not be retrospective. Instead, we are for good and exceptional reasons allowing a second prosecution of a crime that was always a crime. The difference between the substantive law and the procedural law seems to me to be valid.
With regard to prosecuting for murder or culpable homicide someone who was acquitted of an assault that the victim later died of, it has been argued—with some truth—that such a charge would be more thoroughly investigated and prosecuted. However, I do not think that that takes us all the way. It seems to me that there is clearly merit in the views of those who have said that, if that were to be allowed, there should at the very least be substantial new evidence that was not reasonably available before. I do not accept the cabinet secretary’s position that that is not an example of the double jeopardy rule in practice. The principles are exactly the same. I accept the existing law position, but we need to get the principle right, and it seems to me that there should be prosecution in those circumstances only when there has been an acquittal and new evidence has come forward.
There are on-going issues of detail to be resolved, but it is clear that the bill’s basic principles are valid. As other members have done, I ask members to support the bill’s principles at stage 1.
10:05
My first thought is that we seem to have been at this debate for quite a while. It has gone on for a long time, but that is probably a good thing, because we are talking about changing the law as it has been for centuries. The bill is not a political whim or a policy idea that somebody thought would be a good one. We are reflecting on what has happened for generations and we must ensure that we get things right. After all, we are unlikely to change the law again soon.
I want to go through the issues and reflect on the Law Society of Scotland’s comments, as it is clear that it is still not, for reasons that I respect, in the same place as us. It seems to me that the Law Society’s comments should be addressed, as it has considerable connection with the legal process day by day and week by week.
I will start with tainted acquittals. The Law Society commented that the principle should apply only in solemn cases and only where the accused had played some part in the tainting of the trial. I understand where it is coming from, but I agree with the committee and comments that members have made so far. That is simply not the right approach. I think that the principle remains that if a trial is not a fair test—it should be a fair test—there should be the ability to have it again. It has nothing to do with whether the accused had any part in what happened. If the accused got off as a consequence of jury nobbling or evidence tampering, it seems to be in the interests of justice to be able to have the trial again. It seems to me that the principle is that if a trial is not a fair test, there will have been no justice at all, and that it is in the interests of justice that it should be possible to have it again. It may, of course, be appropriate not to have the trial again but to try somebody for perjury, for example, but that would be up to the Crown. That said, it seems to me that the principle is quite clear. If the original trial was not fair, it should be possible to have it again.
The Law Society of Scotland is concerned about admissions and, again, I think that I understand where it is coming from. Lord Gill, however, gave a lucid explanation that I remember well. His point was that at the opening stage of the appeal before the judges, it is for them to decide whether the admission and the evidence for that admission can fairly be put to a jury. They are to apply those tests. The jury is to decide how reliable something is only if it gets to the jury. Again, it is quite clear that that should cover all offences. I think that the Government made that point. There is really no distinction to be made. If somebody owns up, or is said to have owned up to an offence, there is no earthly reason why the matter should not be brought back to the court to consider whether that is right.
Does the member accept that, leaving aside boasting, there really is no distinction of principle, in respect of the merits of the issue, between a particle of evidence that relates to an admission and a particle of evidence that relates to something else? What is the principal difference between the two situations?
The principal difference goes back to the idea of acquittal. The layman’s view is that if somebody walks away from the court and says, “I did it,” or that part of the evidence that proved that they did something was tampered with, they will have told the world that the test was unfair. To use a cricket analogy, they tampered with the ball, and that is not fair. If the guilty party tampered with evidence, they have taken away the right to say that they got away with it.
In contrast, we need to be very careful about new evidence. The idea and importance of the rule against double jeopardy first emerged in that context. We need to be absolutely clear that we are looking for new-evidence exceptions only in the most serious cases and that we do not expect anybody to come back to court for relatively minor offences just because the evidence has improved. The public want the murderer and the rapist and possibly the armed robber and the major fraudster to be able to be brought back to trial. Those are matters of considerable public significance and we should be able, with new evidence, to break the historic rule in such cases. That is why I am, I confess, in the same position as those who have spoken so far: I am not sure that there should be a list. In fact, I am now quite sure that there should not be a list. We should couch things in terms of the level at which a crime was originally prosecuted. I am not with Robert Brown on the issue of general indictment. Of those who have spoken so far, I am with Bill Aitken. Only High Court cases should be involved, because those are the cases in which the public will be interested. I can see the principle that Stewart Stevenson has already enunciated, that a case might originally appear on a summary cause, but it seems to me that that would be the exception to the exception and we do not have to worry about it. It seems to me that we should be dealing with serious offences by anybody’s standards, that they will at the very least have been indicted and, I suspect, have been indicted in the High Court. That is where we should put the line.
Nigel Don talks about cases on indictment only in the High Court, but surely one of the bill’s principles is to give some satisfaction to people who have been affected by crime. Surely the principle is the same for people have been affected by crime, whether the case has been dealt with under indictment in the High Court or in the sheriff court. It is about getting justice for people who have had injustice committed against them.
Indeed, but this is not just about justice; if it were, there would be no limits. We would say that the moment there was new evidence anybody should be able to go back to court. However, we have accepted over the centuries that that is a bad principle, because it basically means that the state could retry until it got the conviction that it wanted. We recognise that that is not where we want to be, as a matter of human rights and good political principle. That is the principle that history has given us and we are trying to find exceptions while accepting that principle. Therefore, not all cases should be involved, although I understand the logic.
The Law Society of Scotland was concerned about the problem of eventual death and I am sticking with that approach. Other members have mentioned the issue. It seems clear to me that if something ain’t broke, don’t fix it. That is where the law has finished up and there is no reason to change it. As the cabinet secretary outlined, it is a completely different event: a person will be charged with a different offence under different circumstances that will have generated a different investigation. That has not caused us a problem and nobody has said that it is wrong for any practical reason. People have argued about a matter of principle and it seems to me that we should go back to the original position given by common law.
Colleagues have said everything that there is to say about retrospectivity. The trial of Mark Weston for the murder of Vikki Thompson makes the point far more eloquently than any of us could. It would be crazy not to make things retrospective. I understand the concerns that exist, but the practicalities are before us. It is a matter of public confidence; it is about the public knowing that the prosecution can go back for new evidence in the most serious cases, or for other issues in the most difficult or worrying cases. We owe it to the public to ensure that that principle is enshrined in the law so that the courts know what they are doing.
10:14
I support the motion in the name of the cabinet secretary that urges members to support the general principles of the bill.
As deputy convener of the Justice Committee, I place on the record my thanks to those who gave evidence to the committee, the Scottish Parliament information centre for its invaluable assistance, and the committee’s clerking team for its sterling support.
The bill, which is based on the Scottish Law Commission’s report on double jeopardy, published in 2009, seeks to enshrine in statute the established principle that a person should not normally be prosecuted for a second time for the same offence or on a new charge arising from the same actions.
The SLC defined the rule against double jeopardy as
“prohibiting a repetition of criminal proceedings against anyone who has been previously tried for a particular offence, whether he was convicted or acquitted in those earlier proceedings.”
The commission noted that, although it has been clear in Scots law for centuries that no one could be tried twice for the same offence, the law lacked clarity and
“the precise boundaries of the present protection against double jeopardy in Scots law are unclear.”
That is an unhappy circumstance.
Witnesses were overwhelmingly in favour of enshrining in law the rule against double jeopardy. The Lord Justice Clerk, Lord Gill, said that the judges of the High Court of Justiciary were
“unanimously of the view that the double jeopardy rule is of considerable constitutional significance and that, subject to certain exceptions ... it should be retained.”—[Official Report, Justice Committee, 14 December 2010; c 3959.]
Given the weight of evidence, it is unsurprising that the committee—correctly—recognised the central
“importance of the double jeopardy rule, in providing certainty about the finality of criminal proceedings and in protecting accused persons against repeated prosecution”,
and the need to clarify and entrench the rule by placing it on a statutory footing.
As members have said, the bill proposes several exceptions to the principle, which include exceptions when the original trial was tainted by an offence against the course of justice, when new evidence that an acquitted person confessed to the offence emerges and when other new evidence of guilt emerges. In the main, those exceptions are rational and acceptable. As the cabinet secretary has said,
“It is no threat to our justice system to reappraise historic principles such as double jeopardy”,
for there must be a
“balance between the rights of the accused and the ability of the Crown to prosecute in the public interest.”
Quite so.
I will touch on some exceptions to the general principle that the Justice Committee considered. Section 2 of the bill proposes that an acquitted person could face further prosecution if prosecutors could prove that the acquittal had been tainted by certain offences against the course of justice. Section 2 mirrors the SLC’s recommendation of an exception when an acquittal
“has allegedly been subverted or perverted by someone bribing or threatening witnesses, jurors or, in extreme cases, the judge.”
The SLC concluded that retrials should be permitted if the prosecution could convince three High Court judges, on the balance of probabilities, that an offence against the administration of justice had been committed in relation to the original trial; that that had resulted in a tainted acquittal; and that a further prosecution was in the interests of justice.
I believe—as did the committee—that the evidence that was presented to members in favour of that approach was persuasive. I acknowledge that the proposals gave rise to several concerns, most notably from the Law Society of Scotland and the Scottish Human Rights Commission. Nevertheless—and given the balance of probabilities test—the committee was correct to judge that the provisions provide
“an appropriate level of protection in this particular context”.
Like my committee colleagues, I concluded that the general new-evidence exception in section 4 was appropriate and rational. I was comforted by the Lord Justice Clerk’s confidence that judges could apply the tests in section 4. Lord Gill noted that that
“is an approach that can be applied, as it is routinely applied in new-evidence appeals in the court of appeal.”—[Official Report, Justice Committee, 14 December 2010; c 3965.]
I, too, was struck by the case to which members have referred of Mark Weston at Reading Crown court for the murder of Vikki Thompson in 1995, which came to the committee’s notice during its consideration of the bill. His conviction, which was made possible following the discovery of new forensic evidence, was allowable only because a new-evidence exception had been introduced in English law. That exception was entirely reasonable and such a rational approach should be followed in Scotland.
The putative legislation strikes the correct balance between the rights of the accused and the public interest. In the most serious cases, we must do all that we as a legislature can to prevent someone from literally getting away with murder. Scottish Labour will support the motion at decision time.
10:20
The Double Jeopardy (Scotland) Bill is based on the Scottish Law Commission’s “Report on Double Jeopardy”. The bill aims to codify in statute a long-held Scottish law principle that a person should not normally be prosecuted a second time for the same offence. The wide agreement that such codification is desirable was reflected in the evidence taken by the committee, which did not hesitate to recognise the fundamental importance of the double jeopardy rule and therefore fully supported putting it on a statutory footing.
However, one subject of discussion on which witnesses’ views differed was whether the law should be retrospective. The SLC did not support retrospection and claimed that it would have little practical effect, as much evidence is not kept after a trial. That argument has merit, but it does not provide sufficient reason not to apply the law retrospectively. Even if retrospection applied to only a small number of cases—I think that the number would be tiny—a public outcry would arise if evidence of an offence came to light but the Crown could not pursue the offender because the law was not retrospective. The conviction of Mark Weston in England for the murder of Vikki Thompson highlights that issue.
It was put to the committee that people who enjoyed certainty after being acquitted before the bill came into force would have their judgments converted into provisional judgments. I suppose that that is true, but that is no different from the position of those who will be tried and acquitted in the future, when all judgments to which the bill will apply will, in essence, be provisional. The argument is not strong enough to convince me that the bill should not be retrospective.
New evidence generated much discussion. The SLC found that to be the most difficult issue that it faced and made no recommendation on whether a new-evidence exception should be created. The Crown Office felt that the new-evidence exception in the bill struck a proportionate balance between the rights of the accused and the rights of victims. It also felt that the tests that would require to be passed were very high and would provide sufficient safeguards.
Those tests are in section 4(6), which says that the High Court can set aside an acquittal only if, first,
“the case against the accused is strengthened substantially by the new evidence”;
secondly,
“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”;
thirdly,
“on the new evidence and the evidence which was led at”
the original
“trial, it is highly likely that a reasonable jury properly instructed would have convicted the person of ... the original offence”;
and fourthly,
“it is in the interests of justice to do so.”
Those are not easy hurdles to overcome and they are sufficiently robust to protect the accused effectively.
Unlike the exceptions for tainted acquittals and admissions, the new-evidence exception is tightly drawn, with the intention of restricting it to certain offences. The SLC recommended that, if a new-evidence exception was created, it should be restricted to murder and rape, although ministers should have the power by affirmative order to add other serious offences.
The bill goes further than that and adds culpable homicide, genocide, crimes against humanity, war crimes and a broader range of sexual offences. What the list of offences should include is not agreed. The problem with such a list is that, once it is created, all sorts of groups will exert pressure for new offences to be added to it. In our deliberations, the committee agreed that the general new-evidence exception should apply to only a limited number of very serious offences but questioned whether a list was the best way in which to achieve that.
As has been said, the committee suggested that consideration should be given to replacing schedule 1 and dealing with the matter in another way. The suggestion is that the new-evidence exception would affect only offences that were originally prosecuted on indictment or tried in the High Court. The advantage of restricting the measure to High Court-only offences is that that restricts application of the new-evidence exception to cases that the Crown felt merited a sentence of more than five years. It has been suggested that such a proposal may encourage the Crown to put more cases to the High Court on the basis that that will make such cases eligible for the new-evidence exception in future. I doubt that that will be the case. The option of High Court-only cases is well worth considering. I await the Government response with interest.
The bill will enshrine in statute a long-held Scottish legal principle that an accused can be tried only once on the same set of evidence, but it allows, rightly, for exceptions. The number of cases that will be caught by the provision will be tiny, as evidence elsewhere shows clearly. I hope that the Parliament can and will support the general principles of the bill this evening.
10:26
I welcome the opportunity to speak in this stage 1 debate. I begin by outlining my support for the general principles of the bill, which the cabinet secretary has introduced. Of course, I also want to emphasise the importance of protecting the rights of all our constituents. The last time that I spoke on the issue in the chamber, in addition to stating my support for change, I welcomed the ensuing consultation period. Having listened carefully to the evidence, along with my fellow members of the Justice Committee, I remain steadfast in my belief that this reform is needed.
As we have witnessed, cases south of the border show that persons who were previously acquitted of a crime have been brought back to trial in light of new evidence. The evidence that the Society of Solicitor Advocates provided to the committee affirmed that DNA evidence—or whatever other form of incriminating evidence that comes forward—does not prove that someone is guilty. We must all wholly accept that point of view. It said that, if such evidence comes forward, it should trigger only a retrial, not prove someone’s guilt. It is the responsibility of the prosecution to prove guilt and it is for the jury to reach a decision. Furthermore, I agree with the analysis of those who are experienced in trauma and loss, who recognise that with the constant developments in forensics it is time for amendments to be made to the double jeopardy rule to reflect those improvements.
I understand—but disagree with—the concerns of some lawyers, judges and human rights experts who worry that the changes will infringe on the liberties and rights of the accused. Professor Paul Roberts stated that
“nobody would be safe and secure in their liberty, person, possessions or reputation if they were constantly at peril of being prosecuted by the state”.
I want to make it clear: I do not support any act that intrudes on the civil liberties of people in my constituency and across Scotland. I am sure that there is 100 per cent agreement on that around the chamber. I also do not believe that the overall principle of changing the double jeopardy rule will lead to such encroachment. If incriminating evidence arises that puts in doubt the innocence of an acquitted party, we should encourage this change in the law, with the full intention of providing justice to victims and their families.
There has been and is little protest about the proposals to alter our legal system to allow for a new trial if an acquitted individual expresses his or her guilt. Previously, I have highlighted the historic case in England of Billy Dunlop, who murdered 22-year-old Julie Hogg in 1989 and who twice faced trial in 1991. On both occasions, the jury failed to reach a verdict and the killer was never brought to justice. The killer was subsequently imprisoned for another crime and boasted to prison officers that he was guilty of the murder of Julie Hogg.
As a consequence of the 2003 changes to the legal system in England and Wales, Billy Dunlop was charged and convicted of the murder in 2006, following his confession in 1999. He thought that he had got away with murder—indeed, for 17 years he did—but changes in the law that applied retrospectively meant that he came before the court and got his just deserts. However, if the case had happened in Scotland, that vicious murderer would still be free to walk the streets and the family of the victim would still have no sense of justice or closure.
Our criminal justice system is unquestionably unique, and etched in it is much of the history of Scotland. As legislators, our job from time to time is to amend the system and fix fundamental wrongs that should not happen in modern-day Scotland. I agree that care must be taken and the Government must ensure that the rights of all citizens—victims and accused alike—are protected. However, change is needed. I hope that all members recognise that.
Bill Aitken, the convener of the Justice Committee, highlighted very adequately the recommendations and conclusions of the committee following the evidence sessions that we heard and submissions that we received. We have some concerns. I am pleased that the cabinet secretary listened to the committee and that he indicated in his speech this morning his willingness to work with us to discuss and address the issues that we highlighted. I look forward to working with the cabinet secretary and my colleagues on the Justice Committee to ensure that we get this matter right. The rights of victims and the rights of those who are accused need to be protected, but justice should be seen to be done in all cases in Scotland.
10:31
For me, the double jeopardy debate is one of the most difficult issues that we face in Parliament. Unlike many other issues, there is no party split but the arguments for and against legislation to allow prosecution for an offence of which a person has previously been found not guilty are both compelling.
The benefits of refusing to allow further prosecution are strong. In 2009, the lead commissioner for the Scottish Law Commission, Patrick Layden QC, neatly summed up the reason:
“Essentially, it prevents the state from running the criminal prosecution system on a ‘Heads we win; tails, let’s play again until you lose’ basis”.
Allowing not even for the possibility of further prosecution gives closure to people who have been acquitted at a fair trial. People who are truly innocent might otherwise feel the sword of Damocles hanging over their heads for the rest of their lives. However, although most would concur with the 1842 observation of Lord Justice Rolfe—in a case in the English courts of a compensation claim that resulted from faulty maintenance of a stagecoach—that hard cases make bad law, there is something grossly offensive in the spectacle of a person who has been found innocent of a serious crime subsequently boasting that he or she has got away with it. Massive advances in the forensic sciences mean that evidence that could not have been available at the time of the trial can now prove conclusively that the person who was found innocent is, in fact, guilty of the crime. We need to take account of that. What is needed is a fair balance between the two poles of the argument. That is what has been achieved in the bill that is before us today.
Let us look at the main issues. It is important that double jeopardy legislation applies only to the most serious offences. It should not apply to those who could have been tried at the time for another alleged offence had the prosecution chosen to do so; nor should it apply if the so-called new evidence would have been available to the prosecution at the time of the original trial, had reasonable diligence been shown. That could be a defence against the reopening of the World’s End case.
The bill covers those situations. In particular, the bill affects only those who have previously been acquitted of one of the serious offences that are listed in schedule 1, and after High Court approval of a retrial. A person cannot be tried again for an offence that is listed in schedule 1, unless that offence was listed in schedule 1 at the time of the first trial. I have not had the benefit of being a member of the Justice Committee and hearing all the evidence, but I have heard enough in today’s debate to feel that we should look again at schedule 1 and consider whether listing offences in a schedule is the best way of proceeding.
Another rare but important use of the proposed legislation is in cases of tainted acquittal, perhaps when there has been proven interference with a jury or even a judge. Even in those cases, the acquittal may not be set aside unless the court is satisfied that the previously acquitted person or someone else has been convicted of an offence against the course of justice in connection with the trial, or that the balance of probability leads to the same conclusion. Of course, the court must also consider that the interference could have had an effect on the outcome of the proceedings.
An associated issue that has caused particular unease in some quarters is whether double jeopardy legislation should be retrospective. In general, I am against retrospective legislation. It seems unfair even to attempt to convict someone of a crime that was not a crime when an incident took place. That opens legislative bodies to the charge of being vindictive or even attempting to settle old political scores. However, as Robert Brown stated, the situation here differs to an important degree. When a person was tried in the past for one of the serious offences that are listed in schedule 1, those were offences at the time—it is simply a case of the person having been found innocent. If advances in science or whatever now provide strong evidence to the contrary, I see no reason why the person should not be charged again. If someone goes around boasting of having committed a murder or a rape, for example, thinking that they are immune from prosecution, it is not in the interests of the law or society that they should be protected.
A similar argument applies to new evidence, which must be substantial. As has been said, difficulties may arise because material evidence can deteriorate or be contaminated over the years, which may mean that a second prosecution is unlikely to be successful. However, that will not always be the case. If the evidence is watertight, I cannot see how it is in the interests of justice or anyone other than the perpetrator of the serious crime that a retrial should not take place.
We have before us a bill that is the culmination of years of reflection by all concerned with this difficult issue. I have studied the checks and balances that the bill contains and consider them to be proportionate and appropriate. I therefore support the bill and commend it to the chamber.
10:37
I welcomed the Cabinet Secretary for Justice’s referral of this issue to the Scottish Law Commission in 2007. That was an important step in taking forward a matter that we have debated and engaged with in this place for some time.
Of course, the principle of ne bis in idem or, in French, autrefois convict has been in Scots law for some 800 years. It is worth thinking of the kind of world that existed at that time. The English had been conquered by the Normans, but Scotland had yet to face down the substantial challenge that Edward I would bring 100-plus years later. That was a very different world, with a very different approach to legal matters. The fact that the principle has endured over such a lengthy period should put us substantially on notice that it is not a matter to be treated trivially, but one of the utmost seriousness. It has been at the centre point of Scots law—and the law of many other countries—for a very long time.
For me—and, I suspect, for other members—one of the most chilling speeches that has been made to the Parliament was the speech by the Lord Advocate on the World’s End murder case. It was a lengthy speech that left the chamber as quiet as I have ever heard it. There was no fidgeting—there was a stillness among us as we heard the Lord Advocate lay out matters before us in a judicial manner to which we are not used. Those who listened to that statement—some members found it sufficiently disturbing not to stay for the whole of it—will understand the issue that is before us.
Cathie Craigie was absolutely right to focus on issues relating to the victims of crime; I think that she was the first speaker in the debate to do so. The point is not simply to identify someone’s crimes and to ensure that an appropriate punishment is put in place, but to serve the interests of those who have been affected by crime. When considering whether, after 800 years, we should look at the matter again, there are very substantial issues that we must consider.
Having served on two justice committees of the Parliament and having spoken on the subject previously, I see today’s debate as a welcome opportunity to revisit it. Of course, revisitation is the whole point of the bill. It could be argued that it is somewhat strange that trials can be restarted for a variety of reasons up to the point of decision but that cases cannot be revisited thereafter, as decisions are absolute and inviolate. We have now moved beyond the point of accepting that. Equally, we have accepted that it is no small thing to do so. The English example shows us that the criminal justice system and the interests of justice do not collapse when such a measure is introduced. That can give us substantial confidence that it is worth our while proceeding in this way.
Clearly, there are other ways in which the ends of justice can be served. We have observed with varying degrees of interest and engagement the use following a civil trial of the law of perjury for one of the former tenants of these premises. Let us not forget that people are found not guilty—they are not found innocent at any stage, although the presumption is that they are innocent. If someone has been prosecuted and has not been found guilty, there are other ways, one of which is the law of perjury, of serving the ends of justice. Of course, that is not an easy matter with which to deal.
What tests are we putting in place? Are they sufficient and adequate? The hearing that must precede any reprosecution is a very important part of the changes that we are contemplating. For example, all of us recognise that not all confessions are sincerely made. I suspect that there will be instances of people who are clearly engaged in criminality and may already have substantial criminal records embellishing a tale to the point of confessing to crimes that they may or may not have committed, because they are publishing a book or have the opportunity to be paid large sums of money by one of the tabloid newspapers. For that reason—and many others—the hearing process is important, as it will allow us to test whether a reprosecution should be contemplated in the interests of justice. It is equally important that the person who may be subject to a new prosecution has the right to appear and to be represented in it. Those are important provisions in the bill.
We have had some exchanges on the scope of reprosecution; I suspect that we will continue to have such exchanges as the bill proceeds through Parliament. Should it be limited to original prosecutions on indictment, or should it be extended to summary prosecutions? Perfectly properly, Robert Brown said that it was pretty unlikely that evidence would come forward following a summary trial that would have caused the case to be taken on indictment in the first instance, but we cannot exclude that possibility. If we are thinking of the victims, we need to think very carefully about where we strike the balance.
There are some things that are not in the bill that could not, sensibly, be in it, but which it is worth having a think about. For example, should we be able to reprosecute people who have died? That might seem a slightly amusing idea, but the reality is that holding a court case to prosecute someone who is dead—which can be done in other jurisdictions—does, in certain instances, serve the interests of justice and of the victims. However, that is an extremely difficult thing to contemplate and the size of the bill, which at present is relatively modest, would be substantially greater if we were to do so. I mention that just to point out that we should not imagine that we are solving every issue that surrounds double jeopardy.
I am not quite clear what Mr Stevenson has in mind, but I wonder whether he is thinking of the Megrahi case and the situation whereby the reported death of Mr Megrahi, in due course, would have interrupted the re-review of proceedings. Does he think that that would have given rise to an issue whereby the victims would have been deprived of the opportunity to test the issues before the appeal court, following on from a decision by the Scottish Criminal Cases Review Commission?
The member cites a perfectly reasonable example; there would, of course, be others.
There are other ways in which the issue can be dealt with, besides having a retrial in a criminal court, but it is clear that victims often do not regard such alternatives as being equivalent to prosecution in a criminal court. Prosecuting someone after they have died is not dealt with in the bill, and I would not wish the Presiding Officer to draw me up too tightly for speaking on a matter that is not strictly before us.
Turning to things that are in the bill, an issue that has been raised relates to acquittals when there has been interference with the jury. Section 2(5) says:
“But the acquittal is not to be set aside if, in the course of the trial, the interference (being interference with a juror and not with the trial judge) became known to the trial judge, who then allowed the trial to proceed to its conclusion.”
Superficially, that looks okay, but the reality is that the effects of that interference might have been greater than the trial judge was aware of at the time at which they allowed the trial to proceed to its conclusion. Those who will take the bill forward might wish to look at that again, if that part of the bill is to be retained. If one juror was nobbled, they may have contaminated other jurors or put other jurors in a state of fear and alarm before they were removed from the trial. The judge may not have been in sufficient possession of the facts to have realised that that had happened. As almost everything that a judge decides can be reviewed elsewhere, to exclude a review of a judicial decision to allow a trial to continue after a juror has been nobbled may be an exclusion too far.
I am conscious that we have a certain amount of time so, if I am permitted, I will proceed to deal with the committee’s report. Paragraph 33 mentions the concerns of the SHRC and the Law Society about what the standard of proof should be. They thought that beyond reasonable doubt should be the standard of proof at the hearing but, of course, that would not necessarily have been the case in the original prosecution. It is important to bear in mind that the procurator fiscal could have considered a lower test—the existence of a reasonable prospect of a conviction.
Paragraph 48 mentions that the SHRC, and John Scott talked about the range of serious offences. As the bill proceeds, it will be important to test that we can combine the trial of new charges with the retrial of old charges in a way that will serve the interests of justice, and I hope that the members concerned will do that.
The committee considered at great length the retrospective application of the bill, which, instinctively—like others—I am not comfortable with. However, in this particular case, I think that it would leave a huge gap in our ability to deliver justice for many people if we were not to have the opportunity to revisit trials that took place in the past.
Earlier, I intervened on Bill Aitken on the subject of extradition, and I think that there remains a substantial issue there. People may be extradited to other jurisdictions in the European Union and to the United States in a variety of circumstances, without there being any necessity to show that there is a case to answer—that is a matter for the jurisdiction to which the extradition takes place. In a case in which someone who has already been found not guilty in a Scottish court is extradited, there is an enduring potential for injustice but, of course, responsibility for the law in respect of extradition lies elsewhere and it is not at our hand to change it.
Section 10(3) relates to article 54 of the Schengen convention, which touches on some of that. I had been aware of the Schengen convention only to the extent that the UK is outside the common travel area that it created, much to travellers’ inconvenience. I will go away and read it to discover what other delights it contains.
I congratulate the Government and all who have pressed for such provisions on the introduction of an excellent bill that will serve the interests of justice and of victims, and which will be a source of great fascination to those of us who are interested in the minutiae of legal legislation.
We move to the winding-up speeches.
10:52
Double jeopardy is a procedural defence that forbids a defendant’s being tried again on the same or similar charges following a legitimate acquittal or conviction. The rule against double jeopardy is a fundamental principle of Scots law that provides essential protection by preventing the state from repeatedly prosecuting an individual for the same act. Stewart Stevenson gave us a bit of a history lesson, which shows that we are now in a different place.
Interestingly, double jeopardy has even interested Hollywood. The film “Double Jeopardy”, which starred Tommy Lee Jones and was made in 1999, was about a wife who is framed for her husband’s murder and who suspects that he is still alive. As she has already been tried for the crime, she says that she cannot be reprosecuted if she finds and kills him.
All members of the Council of Europe, which includes nearly all European countries and every member of the European Union, have signed the European convention on human rights, which protects against double jeopardy. Article 4 of the optional seventh protocol to the convention says:
“No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”
However, member states may implement legislation that allows the case to be reopened in the event that new evidence is found or if there was a fundamental defect in the previous proceedings. The optional protocol has been ratified by all the European states except Belgium, Germany, Spain, the Netherlands and the United Kingdom. In those member states, national rules governing double jeopardy may or may not comply with the provision that I cited. I note that Bill Aitken said that the committee looked at that issue and was satisfied that the bill is ECHR compliant.
Double jeopardy is an extremely complex and often sensitive issue, so we welcome the bill and the clarification that it provides in setting out in statute the rule against double jeopardy as part of a fair and modern criminal justice system. We support the setting-out of exceptions to the rule against double jeopardy, for example when the original trial was tainted by jury tampering or when the acquitted individual has since confessed to the crime.
In its submission, the Law Society outlined its view that there should continue to be a general rule against double jeopardy. However, it said:
“It should be possible to retry an acquitted person where the acquittal is tainted by an offence against the course of justice in relation to the original case ... and ... It should be possible to retry an acquitted person who subsequently admits to having committed the offence.”
The issue of admission should be dealt with in law. The cabinet secretary referred to that in his speech and said that he will lodge amendments to strengthen and clarify the bill on that matter.
In addition, we support an exception in limited and very serious cases in which important new evidence emerges. That exception should of course apply only when the evidence was not and could not have been—with the exercise of reasonable diligence—available at the original trial. Advances in science such as those relating to DNA provide perhaps the best example of how that could happen. As Robert Brown, Ian McKee and others have said, various considerable advances have been made in scientific evidence. Members have referred to the English case of Mark Weston, who was cleared in 1996 of the murder of Vikki Thompson near her home in the Cotswolds. He was retried after the double jeopardy rule was removed in 2005 and was subsequently found guilty because small patterns of blood were discovered on his boots. That, and other DNA evidence that was not available at the original trial, led to his conviction. That surely must be right.
The decision on whether there should be a retrial must be made by the High Court when, having examined any new evidence, it deems that a retrial is in the interests of justice. Nigel Don suggested that only cases that were taken on indictment in the High Court should be brought back for retrial. I make it clear that my colleague Robert Brown did not say that only cases that were taken on indictment should be brought back; instead, he said that the Justice Committee needs to bottom out that issue.
The Procurator Fiscal Service decides whether cases are taken on indictment or are to be summary cases and whether they go to the High Court or sheriff court. At a particular time, a procurator fiscal might decide that, because the sheriff court is inundated and there is a bit of free space in the High Court, they will push one or two cases to the High Court. Would it be right if only cases from the High Court could be re-examined? I suggest not. Stewart Stevenson made the good point that the bill is about the interests of justice and of victims, and that victims need closure. I therefore suggest that the issue is another one that the Justice Committee must consider and bottom out.
If I misunderstood Robert Brown earlier, I apologise for doing so.
I accept that.
Legal people in the High Court will look at the evidence and consider whether a case should be brought back. The High Court might decide that a case that was originally taken as a summary case should now be taken on indictment and not in the sheriff court but in the High Court. There are many permutations. I suspect that the Justice Committee will spend some time on that issue at stage 2.
The debate on whether a new-evidence exception should be applied retrospectively is complex. However, our view is that it would be arbitrary and probably unsatisfactory if acquittals that occurred before a certain date were final while those occurring after it could be looked at again in the event of new evidence emerging. The Law Society of Scotland remains of the view that it would not be in the interests of justice to allow any exception to the principle of double jeopardy to be retrospective but, as I said, I am not convinced of that and I think that most members of the Justice Committee and other members who have spoken in the debate take that view, too.
I am not a member of the committee, but I am aware that it received evidence on that aspect of the bill and examined it in considerable detail. I suspect that it will examine it again. The committee’s stage 1 report states that it believes that
“prosecutors should be able to seek to reopen cases where compelling evidence has become available, even if (given the safeguards rightly included in the Bill) relevant circumstances arise only rarely.”
It therefore
“supports the retrospective application of the Bill, whilst recognising some of the practical difficulties which may limit the ability of the police to obtain new evidence in relation to cases which have already been decided.”
I congratulate the committee on all its hard work up to this point. I suspect that it has a lot of hard work still to do at stage 2, and I am sure that it will do that work. I will be happy to support the bill at decision time this evening.
11:00
Although several matters are unreconciled at this stage, I am pretty certain that we are all moving in the same direction and that there can be a satisfactory outcome. It is important that we reassert what we are trying to do in the bill. We have had several interesting speeches—one was particularly interesting—and a lot of common sense has been spoken, but let me try to clarify what we are trying to do. I believe that none of us would seek to achieve a situation in which the rights of the individual were under threat and people could face a catalogue of prosecutions if the Crown initially failed to sustain a conviction.
The first protection that is in place is that a case will go to the High Court only when the Crown feels that it is in the public interest to do so. We have received assurances on that from the Crown in evidence to the committee and from the cabinet secretary this morning. The unanimous view of the Parliament is that only very serious cases should be pursued for the second time. We might have to work to identify the type of case, if indeed we take that route. Such cases would be pursued only when doing so was essential to the public interest. Very few prosecutions have occurred under the legislation that was introduced in England, and I anticipate that a similar situation would pertain in Scotland.
So the first protection is that the Crown would pursue a case only in extreme circumstances. The matter would then require to be determined by the Scottish court of criminal appeal, with three judges sitting. It would inevitably set a high bar, which is entirely appropriate. 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.
It would be useful if I said that I actually agree with the member. I just think that when members were confronted with the sort of detailed material that is presented to the courts, as people who are, thankfully, not normally in a court, that was a substantial wake-up call to us about the real world. Thankfully, most of our community, including members, are relatively isolated from that.
We have that protection in respect of new evidence. I am confident that the High Court would set a fairly high bar.
I turn to admissions. As Robert Brown correctly said, when a high-profile murder or other serious crime occurs, every deluded individual and his auntie seems to phone up the press claiming responsibility for it. The protection would be that the High Court would have to be persuaded that the admission contained a degree of special knowledge—that would be persuasive. That would perhaps do away with the difficulty of bar-room bragging by some of our more imaginative citizens.
I take that point. I was interested in the point that my colleague Mike Pringle made when he quoted the ECHR rules, which refer to tainted prosecutions and new evidence, but not to admissions. Does Mr Aitken have a view on whether that affects the argument and whether we should incorporate the admissions issue into the new-evidence issue, as we have discussed in the Justice Committee?
That is one of the unresolved matters. I will consider it fully before it returns to the committee, but I am initially of the view that there is an argument for merging the two issues. That is how I see it at present, but I will take appropriate advice.
In any event, the question of tainted acquittals presents a degree of difficulty. To some extent, we are inhibited in our knowledge of what goes on by the operation of the Contempt of Court Act 1981. We might have to consider how we get round that. In essence, we are not allowed to know what happens in a jury room—sometimes that might be just as well, in the context of matters that are not related to the business that is before us today. We must consider the operation of existing legislation in that regard.
The list of offences, and what is and is not on it, remains a current issue. I heard what Mike Pringle said on the subject and there is merit in his argument, but my view is that the list should be restricted to cases indicted in the High Court, which is consistent with the application of the approach to only the most serious crimes.
The main issue is the interests of justice. Forensic science has improved immeasurably over the years, not just DNA analysis but fingerprint analysis and other aspects. Things can be done today that could not have been done even five or 10 years ago. In the interests of justice, we must use every tool that is available to us and I see nothing wrong with using DNA samples that were taken at the time of the crime but which could not be used because the science of the day was inadequate. There might be difficulties to do with storage, but we can work round such difficulties, because we are talking about the principle of justice.
The Parliament will do nothing that would prejudice anyone’s right to a fair trial. However, we must consider victims and, in the case of murders, victims’ relatives. What we are seeking to do is morally entirely justifiable and legally sensible. I am sure that when we have sorted out the various issues that have been raised in the debate, the Parliament will be presented at stage 3 with a bill that will make a significant impact on the law of Scotland.
11:07
I welcome the opportunity to close the debate on behalf of the Labour Party. I thank the Justice Committee clerks and everyone who gave evidence to the committee and contributed to its detailed report.
There is no doubt that the issue is serious, so it is right that the committee gave it serious and detailed consideration. There is much agreement on the matter, but we owe it to the Parliament and to the public to show that we are considering the issues appropriately. As Stewart Stevenson said, double jeopardy is an 800-year-old principle. The Scottish Law Commission took the issue forward in its report, having given it appropriate consideration, as John Lamont said. It is correct that the principle of double jeopardy be codified in law. As Lord Gill said, it is a matter of considerable constitutional significance that in 2011 we begin the process of establishing in statute a principle that has been around for 800 years.
Much of the debate has centred on the exceptions to the double jeopardy rule and why they should be made. As many members said, it is right that we consider the experience of victims and their families. There can be no worse experience than the tragic loss of a loved one in a violent incident, and the inability to see justice done must eat away at families every day.
We must ensure that only the right cases are taken forward. The delivery of justice must be paramount. We can look to examples in England and Wales. Many members mentioned the Mark Weston case, which shows that justice can be achieved by introducing exceptions to the double jeopardy principle and lends a strong moral case for what the bill is trying to achieve. We can also learn from what has happened internationally.
Bill Aitken talked about how DNA analysis and other scientific techniques have greatly improved, which lends tremendous weight to the argument for giving further consideration to cases in which a person was cleared but there is new evidence.
Also on the subject of modern technology, we live in the information age and people are much more aware of cases in which there has potentially been a miscarriage of justice. It is not just about people who might have been wrongly cleared; DNA evidence can be used to clear the names of people who have been wrongly convicted. The public’s greater awareness of such cases lends greater weight to the need to consider the bill and take it forward.
Important legal principles of consistency and certainty are at the heart of the bill. The committee was right to support the approach in section 2, on tainted acquittals, which deals with situations in which a result was achieved by perverting the course of justice. As the committee’s convener, Bill Aitken, said in his opening speech, the Scottish Human Rights Commission and the Law Society of Scotland questioned the application of the provision to all offences, but I agree with the Crown Office and Procurator Fiscal Service that the bill strikes the right balance. It is right that we revisit trials in which witnesses were intimidated or jury members were unduly influenced, so that justice is done.
Section 3 is on admissions made or becoming known after acquittal and the committee had to consider whether the provision should apply to pre-acquittal and post-acquittal admissions. Some witnesses thought that it should apply only to post-acquittal admissions. However, Victim Support Scotland gave powerful evidence on the matter and the Association of Chief Police Officers in Scotland said that section 3 will help to deliver public confidence in the Justice Committee—I meant the justice system; I assure Bill Aitken that we always have confidence in the Justice Committee. ACPOS made a valid point.
Members talked about the standard of proof and I welcome the cabinet secretary’s acknowledgement that the bar might be raised and the approaches in sections 3 and 4 made more consistent. That might help to address the fears about section 3 that were expressed in evidence.
The new-evidence exception in section 4 is in the public interest. New techniques such as DNA analysis will supply new evidence.
There has been much discussion this morning of the list of offences to which the new-evidence exception should apply. The Scottish Law Commission stated in its report that the provision should apply only to murder and rape. The Government was right to extend the list of crimes in the bill to cover more serious offences such as war crimes and certain sexual offences.
There has been a certain amount of debate this morning about whether a list is appropriate, or whether the provision should apply simply to cases that have been tried on indictment or in the High Court. There has been a lot of support for that argument, but I see some attraction in having a list of offences. A list is quite transparent, so the public can see the offences to which the retrial provision would potentially apply.
Introducing an alternative system would potentially open the way for the provision to apply to other cases, and the public might think that it would not apply in certain cases. As members have said, the provision should apply only to serious cases.
Will the member take an intervention?
I will take an intervention in just a minute.
An alternative approach in that regard might have unintended consequences and open the issue up. I have a relatively open mind on the issue, but I do not dismiss the idea of having a list.
On that point, who will draw up the list? Will it be a group of people, the High Court or the Justice Committee?
The Government has introduced a list in the bill. If the Parliament and the Justice Committee do not consider the list to be appropriate, we must amend the bill at stage 2. Ultimately, we are dealing with a very serious matter, and the list—or any alternative—must be lodged in statute.
Section 11 deals with the eventual death of an injured person and there has been discussion about whether there should be a retrial in such cases. The cabinet secretary dealt with that point well. If someone subsequently dies, the circumstances change and the police will view the investigation differently. They will potentially put more resources into it and bring forward more evidence, and the prosecutors will look for more evidence to bring the case back to trial. Logically, the changed circumstances and the additional evidence that is on display would make it appropriate for a retrial to take place.
The Scottish Law Commission disagreed with the Government on retrospectivity, but I support the Government on that issue. If the provision is introduced, it should be applied retrospectively. One needs only to look at the application of the law in England and Wales in that regard—in the case of Mario Celaire, for example. He murdered Cassandra McDermott in 2001 and was found not guilty in 2002, but the case was subsequently retried in 2009. I am sure that Ms McDermott’s family are glad that the provision on exceptions to the double jeopardy rule was applied in England and Wales. That is a strong example that supports the case for applying the provision retrospectively.
I think I have a bit of time left; I do not want to eat into the minister’s time.
The member is under no compulsion to carry on talking if he does not wish to.
I will touch briefly on some of the contributions from members during the debate.
There was an exchange between Robert Brown and the cabinet secretary on the storage of evidence that might be needed for a retrial. As the cabinet secretary said, the relevant services will have to make an appropriate call with regard to the storage of evidence. If the bill is passed, it will create a different situation and we will have to consider storing more additional evidence than has been stored in the past. However, it is right to be pragmatic in such matters. We do not want a lot of evidence to be stored unnecessarily from cases that would not be deemed to be appropriate for a retrial.
Robert Brown made a valid point about how the public will view retrospectivity. They would see it as a scandal and an outrage if someone was perceived to be potentially liable to be retried for a crime but the case could not be taken forward.
Nigel Don made a thoughtful contribution, as ever. It was helpful of him to take Parliament through some of the Law Society’s criticisms, and he rebutted those very competently. Although there is general agreement in Parliament this morning, we heard criticisms of certain aspects of the bill in the Justice Committee, and it is helpful for those to be aired in the chamber.
Stewart Stevenson’s contribution was interesting as ever, and full of depth. We got a bit of history, and a bit of French at one point. On a serious note, he recalled the Lord Advocate’s statement on the collapse of the World’s End trial. I take Bill Aitken’s point about that matter but, as Stewart Stevenson said, the statement was a poignant moment for Parliament, and it has given some focus to our deliberations this morning. Stewart Stevenson was correct to link that issue with Cathie Craigie’s contribution, in which she emphasised the importance of victims.
I am happy to support the general principles of the bill at stage 1. It is in the interests of justice, public confidence and the consistent application of the law.
11:22
We welcome the debate. There is plainly a broad consensus today, which continues the consensus reached on the previous occasions on which we have debated this very important matter.
As Nigel Don said, it is right that we take time to debate double jeopardy and that we debate and consider it in great detail and at length. It is essential that we pass an effective bill that achieves the objectives that we all share. That is our predominant duty—as a Government especially, but also as members of the Parliament—in reforming the law of double jeopardy, which I think a vast majority of the public wishes us to do.
The law of double jeopardy is a vital safeguard, and it is right that the cabinet secretary and the Justice Committee convener began by setting that out. We are not scrapping the principle that has served Scotland so well for centuries, and which was well described by Robert Brown—drawing, no doubt, on his extensive legal experience.
The principle is important for three reasons. First, it allows finality in criminal proceedings. People who have been acquitted in a court will have gone through the fire and the ordeal of a trial—with all the pressure that is put on any individual who finds himself in the dock, especially in a case in which a very serious crime has been libelled against him. That individual and his family will have faced that pressure—it is an experience that, as far as I am aware, none of us here has undergone. It is essential that an individual who has been acquitted—against whom the state has not made the charge—is then able to get on with his life. If that were not the case, individuals who were acquitted might live in constant fear of a retrial. It is the existence of the law of double jeopardy that marks out what we all regard as a civilised legal system for people whom we would otherwise view in a different light entirely. It offers a necessary finality.
Secondly, the law of double jeopardy limits the power of the state and the ways in which it can pursue citizens through the criminal courts. Thirdly, it also provides protection from the anxiety and humiliation that repeated trials would undoubtedly cause accused persons.
It is agreed across all parties, and it has been acknowledged among all the members who have taken part in the debate, that there should, however, be changes to the current system. Those changes have been considered extremely carefully and thoroughly, first by the Scottish Law Commission and then by the Parliament.
I will deal first with the issue of tainted acquittals. On trials that have been tainted, it is essential, as a matter of principle, that people should not benefit from attempts to pervert the course of justice. Many speakers commented on that.
There are myriad ways in which trials can be tainted. Jurors and witnesses can be bribed. Witnesses can be threatened—for example, so that they do not identify an accused person as the person alleged to have carried out the crime. A witness can be threatened with violence either against members of his family or against himself. That is a real scenario; it does not exist purely in the pages of John Grisham novels. It is quite easy to recognise that, in some sections of society, witnesses may be and have been placed under such pressure.
It has emerged during the debate that all members agree that if the trial is tainted, there should be an opportunity for a retrial, whether the crime of which the accused person was originally acquitted is of the most serious sort or less serious. Where there is taint, there is injustice, and there must be an opportunity to put it right. That principle was expounded by Dave Thompson, and he was absolutely correct in what he said. There has not been a fair first trial in such cases, and it is therefore right that there should be an opportunity for a further trial so that a false acquittal can be set aside. Any offence against justice is a serious matter.
In his closing speech, Bill Aitken touched on the possible effect of merging elements of the new-evidence test and of the admissions exception. Both admissions and other types of new evidence can create a compelling case for a new trial. However, it is important to stress that for an admission to justify a new trial the bill as drafted requires that it must be “credible”. That answers Bill Aitken’s point about instances when a number of individuals—and, I think he said, their auntie—come forward, for reasons best known to themselves, to claim that they carried out the crime. Indeed, financial reasons could be involved, as Stewart Stevenson said.
The admission must be credible, it must be new and it must be corroborated by other evidence. It must also be in the interests of justice to have a new trial. Those are all substantial requirements—it is important to stress that. We will amend the bill so that an admission will have substantially to strengthen the case against the accused in order for it to justify a retrial, and it must also be highly likely that a reasonable jury would have convicted had the admission been available.
I ask the minister to consider Mike Pringle’s point about the wording of the ECHR arrangements regarding double jeopardy—which I have not recently read, and had actually forgotten about. Does the fact that the ECHR provisions at least appear to cover the two categories of tainted evidence and new evidence give the Scottish Government pause for thought as to whether that should be the framework under the bill, so that the admissions bit would be tied in as a sub-particle of the provisions on new evidence?
If Robert Brown does not mind, I decline his invitation to respond to his question with a definitive answer—for good reason. I will not respond now with specific and definitive answers on how we will frame amendments.
However, I can say, and it is correct for me to do so, that we will reflect carefully on each contribution that members have made in the debate, and we will then lodge our stage 2 amendments. We have already determined, as the cabinet secretary announced, the purpose of the amendments that we seek to make and to which I have alluded. However, although my contribution will probably not turn out to be short, it will not be definitive on how we will seek to amend the bill. We have to get it right, and it would be foolish of me to make commitments or give undertakings on the hoof. I have not done that for four years, and I am certainly not going to start today.
The bill is plainly not intended to encourage the reopening of cases involving low-level offences as a result of an admission; rather, it is about the principle of pursuing people who boast of their guilt. I hope that we can all support that position.
If I understood him correctly, I think that in his closing speech Bill Aitken proposed that we merge section 3, on admissions, with section 4, on new evidence. I will make a few points about that. There are some points of difference between admissions and new evidence.
First, the section on new evidence is limited to a specific range of offences, but as I have just set out, the admissions exception should be capable of covering any offence. That is a difference between two of the reasons that justify the departure from the general principle of double jeopardy.
Secondly, the section on new evidence allows a person to be reprosecuted only once for the offence, whereas it should be possible for an application to be made under the admissions exception regardless of whether there has already been a retrial. In other words, if an individual is acquitted after a retrial, but then boasts of having got away with it, that should not be acceptable. Although I suspect that the number of such cases will be very small indeed, the example illustrates the difference between the two categories.
The new-evidence provisions cover murder, rape, culpable homicide and serious sexual offences. The difficult issue on which many of the speeches focused is how we tackle which offences should permit a departure from the general principle. Do we list those offences? Do we try to define when the general principle can be disapplied by providing a different test—one that is based on whether the case was originally tried in the High Court or whether the crime would normally be dealt with on indictment rather than by way of summary procedure? These are difficult areas and the questions are finely balanced, so we will consider the matter further.
We accept that it is difficult appropriately to define the scope of the exception by using a list alone. However, because most offences can be tried on indictment or in the High Court, an approach based on that test would make the range of offences that could be reprosecuted following new evidence much wider than the list in the bill. One option would be to restrict retrials in such cases to those that were initially prosecuted under solemn procedure or in the High Court, but to retain the list. I say that as a general response to that whole area, which was probably the area that was most widely covered by members in today’s debate.
Does the minister agree that summary cases could be dealt with in another way? Rather than seek a retrial, we could charge the accused—or anyone else involved—simply with attempting to pervert or perverting the course of justice. That would probably be tidier than going through the procedure again.
We will certainly consider that approach before we lodge stage 2 amendments. I am sure that we will wish to involve the committee in discussions prior to the stage 2 proceedings so that we can get such matters settled as well as we can.
The bill contains the power, using the affirmative procedure, to add or remove offences from the list, so Parliament will have full scope to consider any such changes. It will be for the Government and Parliament to consider what would be appropriate in each case when change is proposed.
There is an important issue around the new-evidence test. Many speakers in the debate referred to DNA evidence as the most likely source of new evidence that leads to a retrial. Indeed, although I do not plan to mention individual cases, members referred to the one case in England in which a retrial led to a conviction on the basis of new evidence.
What should our new-evidence test be? It is important to say that the Scottish Law Commission devised our test after a thorough analysis of the law. The test looks at the effect of the evidence on the case as a whole. It is a high-level test, but it is not the English test. The commission looked at the test that is used in England and Wales, which requires new evidence to be compelling in its own right. It concluded that, in practice, the English courts had found that test to be unworkable because it does not permit a retrial when the new evidence is unremarkable by itself but, in combination with the existing evidence, puts the case in a compelling light. It is important to accept that the SLC’s judgment on that is correct. It concluded that in practice the English courts looked at the effect of new evidence in strengthening the original case. That is much more in line with the provisions in our bill. However, a brief perusal of a submission from the Director of Public Prosecutions in England reminded me that, during the five years in which the law has been in force south of the border, there have been only 10 applications to the High Court for retrial; I am advised that four of them led to a conviction. That is an important reminder for us.
As Mr Pringle and other members said, relatively few cases will end up in retrials. That is an important point because many people have legitimate concerns about what we are seeking to do. The Green MSPs are opposed to the bill, although they are not here to state their position today, which is a shame. Nonetheless, I mention that for the record.
I must ask you to close, minister. I did not think that I would have to say that in this debate.
I was just getting into my stride, Presiding Officer.
Please be fairly quick because we are encroaching on the next item of business.
Certainly.
I thank all those who contributed to the debate. It is essential that we should be able to bring people to justice when new evidence emerges. We are trying to perfect the removal of an injustice that has existed for perhaps too long, and I am grateful that we have the support of the parties that have been represented in the debate.