Criminal Law (Double Jeopardy)
The next item of business is a debate on motion S2M-5613, in the name of Annabel Goldie, on double jeopardy.
Usually, in chamber debates on the Scottish criminal justice system, more seems to divide the parties than to unite them. However, in speaking to the motion in my name, I hope that we might all find some common ground.
Over the decades, other jurisdictions have tended to borrow from and copy many of our distinctive Scottish legal system's excellent attributes. This morning, I suggest that we look to borrow from our neighbours south of the border a change to the criminal law of England and Wales that was effected by the Criminal Justice Act 2003. That legislation abolished double jeopardy, which is the rule that a person who has been acquitted or convicted of an offence cannot be charged with the same offence again.
After the tragic murder of 18-year-old Stephen Lawrence in 1993, Sir William Macpherson was commissioned to conduct an inquiry into the Metropolitan police's investigation of the murder. His report not only delivered a damning assessment of the institutional racism in policing, but made numerous recommendations aimed at improving attitudes to racism. For example, recommendation 38 stated:
"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 recommended that it should be possible for the Court of Appeal to have the power, in murder cases only, to quash an acquittal if reliable and compelling new evidence of guilt emerged and if a retrial would be in the interests of justice.
Because I want to focus this morning on the general principle—we can leave the detail for another day—I have phrased my motion in broad terms. Indeed, it virtually restates what was in the Labour Party manifesto for the 2005 general election, which is why I am somewhat disappointed by Johann Lamont's amendment. Labour support for what was an electoral commitment two years ago appears to be wavering.
That said, I understand that, in principle, the Scottish National Party supports the abolition of double jeopardy.
The member represents our position correctly. However, will she lighten my darkness as to whether in Scotland, as has always been the case in England, someone can be retried if the jury is corrupted?
Mr Stevenson raises an interesting and important point that is worthy of consideration in the broader debate. However, it is not really part of the case that I am presenting to the chamber this morning.
Double jeopardy was an historical safeguard for the acquitted accused, as it ensured that a fresh prosecution could not be raised. Of course, such an approach derived from the days when evidence was either of an oral or tangible character, in which case it existed and was produced for the trial, or it did not exist. In the days before advanced technology, all available evidence was obtained after a crime was committed, and that complete body of evidence constituted the prosecution case. We now live in an age in which forensic science has become much more sophisticated and, even after many years have elapsed, it might be possible to find new evidence that is robust and might be probative of an individual's involvement with or connection to a crime.
Given Sir William Macpherson's recommendation and the subsequent change to the law of England and Wales, there is an imperative to consider such a change to the law in Scotland. The public will find it unacceptable that, faced with the possibility of a new prosecution, victims and their families are given an entitlement to justice in England and Wales that they are denied here. It is our duty in this Parliament to ensure that victims and their families in Scotland receive the same entitlement.
I fully accept that a rigorous assessment process would have to be gone through before any new prosecution could be raised, which is why I suggest that evidence would have to be not only new but compelling. Interestingly, I have tried to help the minister in the way that I have phrased my motion, because I felt that the wording in the 2005 Labour Party general election manifesto was too broad to be safe. We must be clear that there are two significant criteria in the proposal, and that they would need to be satisfied. In Scotland, the appropriate mechanism would be that the Lord Advocate would require to seek the consent of the Scottish court of criminal appeal to bring a new prosecution.
We would also need to consider what crimes should be competent for fresh prosecution. In England and Wales, schedule 5 to the 2003 act contains a lengthy list of qualifying offences. The matter should be the subject of thorough debate and it should, perhaps, encompass the issue that Mr Stevenson raised. I accept that, at Westminster, my party thought that the offences should be restricted to murder and rape, but in Scotland culpable homicide is a serious criminal charge, as are arson and certain offences that are prosecuted under statute. The offences that would be included would require careful consideration, but that is a matter of detail. Today's debate is about the principle.
I submit that, under the criminal law of England and Wales, victims and their families enjoy an entitlement to see justice done. I want victims and their families in Scotland to have a similar entitlement.
I move,
That the Parliament agrees that the criminal law of Scotland be changed so that persons acquitted of serious criminal charges can be tried again if new and compelling evidence comes to light.
Many of us in the Parliament have come to criminal justice issues through direct experience of the justice system or because our constituents have come to us with their concerns. Our experience of the system and our reactions to it are shaped by people's—often bad—experiences of it. In the short time for which I have been in my job, I have been on a steep learning curve. I now know what tholed assize means. That, in itself, makes it worth while for the Conservatives to bring the matter to the chamber.
Will the minister take an intervention?
No. [Laughter.] I will not let the member push my level of understanding of the phrase "tholed assize".
The tholed assize or double jeopardy rule is long established in Scots criminal law. Annabel Goldie is right to say that, as with other areas of the legal system, some people find it difficult to understand why the system developed in the way that it did. If they have direct experience of it, they perhaps feel that it is unfair. The rule is simply that, when somebody has been prosecuted and acquitted, they cannot be retried for the same crime. The principle is based on the view that the state cannot persistently prosecute someone for the same crime. We can understand the logic of that.
The Conservatives' motion seeks to allow retrial in Scotland for certain serious offences if compelling new evidence comes to light. It does not seek to abandon the rule entirely, but proposes that it should be changed in certain circumstances. As has been said, the view has been shaped by the development of forensic science and the fact that the law has been changed in England and Wales.
As Annabel Goldie suggested, we should not create the impression that getting rid of double jeopardy would involve only a simple decision. A lot of work would need to be done to investigate the matter first. Furthermore, making that change is not the only way in which we can show our commitment to victims in the justice system.
The change to the law in England and Wales was not introduced as a result of a whim by the Home Office; it arose from the Macpherson inquiry into the death of Stephen Lawrence. In that case, a private prosecution was brought, but it failed. The double jeopardy rule meant that it was not possible to bring a fresh prosecution. The Macpherson report recommended that consideration be given to reforming the law of double jeopardy. In turn, a consultation paper was issued.
In my research for this debate, I was interested to find that only one question about the double jeopardy rule has been asked in the Scottish Parliament. In 2002, my colleague Brian Fitzpatrick asked the Scottish Executive for its response to the white paper "Justice for All". At that time, the Executive made a commitment to keep a close eye on developments. There has been no further parliamentary pressure on the matter since then.
Following the white paper, the UK Government developed the provisions in the Criminal Justice Act 2003, which allows retrial for various serious offences including murder, rape, drug offences and terrorism, and not just for murder, as the Law Commission recommended. The provisions came into force in April 2005. Since then, only one case has been retried and it resulted in a conviction for murder.
The changes to the double jeopardy rule in England and Wales were subject to extensive research, deliberation and consultation. If we were to consider making changes in Scotland, we would need to do the same. We would have to recognise—others in the chamber know a great deal more about this than I do—the significant differences between the criminal justice systems north and south of the border. Private prosecutions are far less likely in Scotland. Indeed, I can recall only one case—X v Sweeney in 1982—of a private prosecution. Our evidential base is a lot tougher and our majority system in the jury is different. Those are important aspects of the Scottish legal system and we would need to reflect on them.
Annabel Goldie and others know that the Administration is not averse to reforming the criminal justice system when there is a proven need to do so. Our record over the past four years speaks for itself. We have implemented a coherent and unprecedented reform programme and put victims at the heart of the criminal justice system. We might want to discuss double jeopardy and pursue the matter, but the Executive has pursued practical change, including victim support via witness services, the protection of vulnerable witnesses and changes to protection for the victims of sexual offences. Only recently, under my watch, we dealt with trials in absence in the sheriff court. Sadly, the Conservatives were found wanting. They could have done a little to protect victims and witnesses, but they chose not to support the radical steps that we took.
I am trying to establish whether the Executive is still sympathetic to the proposal in my motion or whether it has departed from the position that the Labour Party held two years ago. It made a clear commitment in its 2005 manifesto. Is it now retreating from that?
Not at all. There is clearly an issue. Annabel Goldie identified it and members throughout the Parliament understand it. However, if we are to act on that and make changes, we have to consider the matter in the context of Scots law rather than saying, "It happened in England and Wales, so it should happen here." The member knows that the Executive has been radical in challenging some matters that previously were regarded as fundamental. People said that they could never be changed. They said, "It's not possible to move on that," or, "This is the way things have always been." If we consider the matter in a future Administration, we will need to do so in the context of Scots law and a rigorous review of the implications, given the way in which the legal system in Scotland works.
The critical point is that we cannot consider the matter in isolation. We should be judged on our actions on the range of issues that we have examined to support victims in the justice system. Rather than taking the matter in isolation, we should consider the approach that the Executive has taken over time. That is reflected in our amendment.
I move amendment S2M-5613.1, to leave out from "agrees" to end and insert:
"recognises the issue of the double jeopardy rule in the operation of the criminal justice system; recognises that this issue must not be seen in isolation, but instead should be considered within the wider context of the Scottish Executive's ongoing reform and modernisation programme; commends the Executive's commitment to placing the needs of victims at the heart of the criminal justice system and its achievements over the last four years in fundamentally modernising and reforming that system, including the introduction of the Victim Information and Advice Service across Scotland and the Victim Notification Scheme, and further recognises that any decision on the future of double jeopardy should be taken within the context of Scots law."
We have some time in hand for the debate, so if members want to make six-minute speeches, that is fine.
I listened with interest to Miss Goldie's well-balanced speech. We are happy to support her motion. She correctly pointed out that what we are discussing today is the principle of the matter. We considered lodging an amendment that would add the caveats that Miss Goldie and the minister mentioned, but they relate to the generalities rather than the specifics.
Today, we are debating whether there is a manifest injustice in our legal system and whether—to use another legal phrase that Ms Lamont might well know—a lacuna or a clear gap exists. The matter has been remedied south of the border. Like Miss Goldie, I think that, in many instances, our jurisdiction serves us much better than the jurisdiction south of the border would, but it is clear that progress has been made in England and Wales that has not been replicated here. On that basis, we support the general principle that there is a manifest injustice and a gap in our law. That is why we are happy to support the motion.
I agreed with a great deal of what the minister said. The tone and tenor of her position are acceptable. The matter cannot be seen in isolation. It is but one aspect to be considered if we are to deal with changes in the law, but it is an important aspect and a clear point of principle is involved.
The minister is correct to say that great progress has been made in dealing with witnesses and the victims of crime. The Lord Advocate is not here to take the plaudits, but a great deal of credit should go to her, because the work involved not just changing legislation but changing attitudes and the culture that existed in a system where victims and witnesses were simply part of the machine. They were to do as they were told. What mattered was the aura or mystique of the police procedure, the fiscal's procedure or the courts' procedure. Thankfully, that has begun to change. There is still a further distance to be travelled, but we have to accept that.
Although I accept a great deal of what the minister said, I am disappointed that the Executive is not prepared to adopt the principle. The questions about how we should address the issue, such as whether the Scottish Law Commission should consider it and whether we should have a single act of Parliament or include the measure in a broad all-encompassing act that deals with a variety of matters, are for the Administration that is in place after 3 May. However, we accept that the matter must be addressed and we will do so.
The minister was correct to say that certain details must be addressed. We cannot simply allow a procedure in which the Crown, after incompetence or negligence, is given as many chances as it likes to get prosecutions right. That is not what we suggest. We cannot allow prejudice or minor matters to clutter up our courts. The suggestion that such cases should proceed after a request by the Lord Advocate to the court of criminal appeal has a great deal of sense. I agree with Miss Goldie that that is where we should head.
Two types of circumstance arise that lead to a significant problem of manifest injustice. The public cannot understand the law or why legislators do not change it. The first is when a person is acquitted but it then becomes clear that they committed the crime, because they say they did it and they are dining out on the fact that they did it. They can be prosecuted for perjury and perverting the course of justice, but there is a cathartic element to the court procedure for victims and for those who have suffered an injustice—they want a conviction. If it is clear that somebody committed a crime but was acquitted because they lied blatantly, we should not simply be able to punish them for lying; we should be able to return to the case, put the clear facts before a new jury and allow it to decide, so that there can be justice. If somebody commits a murder and persuades a jury, through whatever means, that they did not do it, but it later becomes clear that they did commit the murder, we should be able to prosecute them again. A failure to do so is a manifest injustice.
The second type of circumstance arises because we live in the 21st century and have made great strides in technology, particularly with DNA. There have been debates, discussions and disagreements in the Parliament about when and how we should use new scientific technology, but technology has changed the parameters of crime enforcement. We can now prosecute crimes that we could not prosecute before and we now have information that was not available before. In some instances, that information shows that somebody committed an offence but denied it, and was acquitted because there was insufficient evidence before the jury to obtain a conviction. We will fail as a legislature if we do not say that the benefits of modern technology should apply to the judicial system and the system of justice in our country. That is why we should allow retrials.
We will have to debate and decide on the specifics, but the incoming Administration can deal with that. The matter could be considered by the Scottish Law Commission, a committee or some other body. However, today, we should address the general principle that Miss Goldie has rightly raised. Something is manifestly wrong when somebody who commits an offence and is acquitted, either as a result of lying or because information is not available at the time, cannot be prosecuted again if further information becomes available. The proposal is not about pursuing a witch hunt or vendetta against individuals; it is about allowing justice to be served and to be done.
The issue is not simply a matter for lawyers, because the current situation brings the whole system into disrepute. The public cannot understand why somebody who says clearly that they committed a crime should not be prosecuted again or why, if new information becomes available in a case, a person cannot be tried again. The proposal is about justice and giving the public faith in our judicial system. The Parliament will fail if we do not take on board the principle that Miss Goldie has correctly brought to our attention.
The minister's point that there has been only one parliamentary question on the issue since the Parliament was established highlights the fact that there has not been a clamour for a review, in the Parliament or in society at large. Nevertheless, the issue requires proper and full consideration. In England and Wales, the double jeopardy provisions of the Criminal Justice Act 2003 came into force in April 2005.
On 11 September 2006, William Dunlop became the first person to be convicted of murder after previously being acquitted. He had twice been tried for the murder of Julie Hogg in 1989, but two juries failed to reach a verdict and he was acquitted formally in 1991. Some years later, he confessed to the crime and was convicted of perjury. His case was reinvestigated in early 2005 when the new law came into effect and was referred to the court of appeal in November 2005 for permission for a new trial.
William Dunlop was retried for the murder and lodged a guilty plea. He was sentenced to life imprisonment, with a recommendation that he serve no less than 17 years. That has not been the only case, but it highlights the complexity of whether we should decide to make it possible for someone to be prosecuted for the same offence more than once. We could consider the work of the Law Commission in England, which members have mentioned.
Does the member agree that the fact that Dunlop's sentence for perjury was a mere six years illustrates the difference that exists between the available remedies when somebody gets away with a crime and the remedies that would be available through retrial?
That is a fair point but, if the member will forgive me, I will address it later if I have time.
As we have heard, the Macpherson inquiry into the murder of Stephen Lawrence proposed that, when fresh and viable evidence is presented, it should be possible to prosecute someone again after an acquittal. In a consultation paper in October 1999, the Law Commission made several provisional proposals, including that it should in certain circumstances be possible to reopen a case when new evidence emerges. The Home Affairs Select Committee in the House of Commons decided to investigate the issue. In June 2000, it published its report, which recommended, as the Law Commission had proposed, that there should be an exception to the double jeopardy rule in cases in which fresh evidence arises.
It is interesting to quote from the select committee's conclusions on the relevance of new technologies and the types of evidence that are available today:
"blood samples taken at a murder scene in the early 1980s might not have produced sufficient identification evidence at that time. The prime suspect may have been prosecuted on the basis of other evidence. If the prosecution failed to satisfy the jury that the defendant was guilty beyond reasonable doubt, the defendant would have been acquitted and left the court a free man. A decade later, advances in DNA testing could enable the original blood samples to be analysed and show with near certainty that the acquitted person had been at the crime scene."
Will the member give way?
Forgive me, but I am anxious about the time.
Although it is relevant to talk about the new technology that is available today and which was not available 25 years ago, in the case of William Dunlop the new and compelling evidence was the confession, not anything that arose from technology. In some cases, new witnesses might be presented that did not come forward originally. The danger of accepting the Home Affairs Select Committee's rationale relates to the fact that the variations in the types of new evidence that might come to light subsequent to a trial, and the times at which that might happen, are almost limitless.
Prosecutors in Scotland have a responsibility and duty to prosecute in the public interest and to present what they consider to be the facts that are relevant to the prosecution at the time. The select committee's rationale introduces the danger that prosecutors will feel that they are not compelled to bring all the evidence to a trial as, in years to come, technology will move on and there may be another opportunity to prosecute. Of course, that is the underlying reason why Scots law has for 300 years had the concept that people cannot be prosecuted twice for the same offence. In 2003, when the Criminal Justice Bill was being considered, it was ensured that Scots law was protected, so that somebody who is tried and acquitted in Scotland cannot subsequently be tried again for the same offence in England.
One problem with the way in which the United Kingdom Government changed the law in England is that it went beyond the Law Commission's proposals on extending the crimes for which somebody can be prosecuted more than once if new and compelling evidence arises. Annabel Goldie asked the valid question whether a change in Scotland would mean that victims in Scotland had the same rights as victims in England and Wales. I am glad that the Executive's amendment points out the changes that have been made on victims' rights. Victims want the Crown to provide the strongest case at the time of the trial. Not doing so would be the biggest way of letting them down. If, when a victim can see an offender being prosecuted at a trial, the Crown does not carry out its most serious duty at that time, the victim will have been let down.
Let us not forget that the UK Government went further than the Law Commission's recommendation.
I want to establish whether Mr Purvis is sympathetic to the principle of what we propose in our motion. I understand his natural concern with detail. I was at pains to say that I am not convinced that the qualifying list of offences in schedule 5 to the Criminal Justice Act 2003 is necessarily the list that we want to emulate here, but that is just detail. I am anxious to establish whether Mr Purvis supports the principle that victims in Scotland in this particular context—I agree that it is a very specific context—should be offered the same protection as victims in England, to ensure that justice is done.
I do not think that we can separate the principle from the practicalities. I do not support a change in Scots law.
If we are considering victims' rights, we have to do so in the context of the state's duty to present the strongest possible case when someone is being prosecuted. Victims would be let down, and one of the basic principles of Scots law would be put at risk, if the state considered that it had a right to prosecute in perpetuity.
It is the state's burden to prove a case against a defendant. Indeed, the existence of the not proven verdict in Scotland—an acquittal—indicates the Crown's clear duty to prove its case beyond reasonable doubt. Although what is being proposed is possibly an attractive change to the law, we have to tread very carefully indeed. It is not possible to separate principle from the practicalities in this case, and that is why I cannot support a change in Scots law.
As everyone who has spoken so far has acknowledged, advances in forensic science and technology in recent years have been significant. Those advances mean that crucial evidence that was not available during the original trial of an accused person who was subsequently acquitted of a serious offence could now prove compelling. In such circumstances, Scottish Conservatives believe that the original verdict should be revisited.
I do not share Mr Purvis's concerns. Our position regarding new evidence is justified if the necessary safeguards are in place. I will discuss the detail of that later. The existence of new and compelling evidence should be allowed to form the basis of a retrial.
The member mentions new and compelling evidence. Do the Conservatives agree that now would be an appropriate time to reconsider the various verdicts that are open to juries? Do they agree that the not guilty verdict should be seriously considered for the bin? If we are to be allowed to revisit a trial, we cannot say with absolute certainty that someone is not guilty. The traditional verdicts of proven or not proven are exactly right.
That is a separate issue, but certainly any acquittal could be considered for a retrial.
Having a retrial on the basis of new and compelling evidence would represent a fundamental change to the law of Scotland, in which double jeopardy—the rule under which a person acquitted of an offence cannot be charged with the same offence again—is a long-established principle. Such a change is not to be embarked on lightly. It would happen only in the interests of justice and would be at the discretion of both the Lord Advocate and the Scottish court of criminal appeal. It is clearly in the public interest to ensure that people who have committed serious crimes are convicted.
Today we are debating a general principle, but it will be helpful to look into some of the details. For example, the definition of "serious" could come into line with the definition used in England and Wales, where legislation has been introduced to allow retrials. The new definition could cover some offences for which a maximum sentence of life imprisonment can be imposed. However, it would not cover all offences for which life imprisonment is the maximum sentence, because such offences include a number of common law offences that are not sufficiently serious to satisfy the "interests of justice" test.
As the member said, this is a point of principle. If someone has been the victim of a very serious assault—but an assault not defined as a serious crime under schedule 5 to the 2003 act in England—and if new and compelling evidence comes to light after an acquittal, why can the person acquitted not be prosecuted again for serious assault, if we are talking about a point of principle?
The member cannot have it both ways. He said that this is a debate about principle, but he then criticised us for not considering the practicalities. I am giving him the practicalities now.
Offences that would qualify include murder, culpable homicide and rape. However—and this is a crucial point—to avoid miscarriages of justice with a second trial commencing without the presumption of innocence, it will be essential that robust safeguards are in place. We must ensure that retrials are fair. Therefore, prosecution after acquittal would be allowed only when there was new and compelling evidence, where "new evidence" is defined as evidence that could not have been adduced at the original trial, and where "compelling evidence" is defined as evidence that is reliable, substantial and appears to be highly probative.
The decision on whether evidence is new and compelling could be taken by the Scottish court of criminal appeal, on an application from the Lord Advocate. If the court was satisfied that such evidence was now available, the acquittal would be quashed and a new indictment for the same offence would be issued to allow a retrial to take place—if the interests of justice test was satisfied.
Although retrials would be rare, the ability to invoke a retrial would provide additional protection for the public: it would help to ensure that killers and other serious offenders were brought to justice and it would help to provide comfort and—we hope—closure for victims and their families. In such circumstances, this is a provision that should surely be supported.
I welcome the approach the Conservatives have taken this morning in their debate on double jeopardy—the principle that a person who has tholed their assize is no longer eligible for a retrial. It is right that we should not play politics with this legal principle, this ancient Scottish law, but I sense that the issue could become a political football. I ask the Conservatives to continue to be consistent in their approach and not to make the issue a political football, so that we can have a genuine debate. It is on that basis that I will make my speech.
We must always review the law—old law, ancient principles and even laws that we have passed recently. We must continue to modernise our criminal justice system when there is a demand for change. It is interesting that some of the most significant changes made by this Parliament have addressed issues relating to victims, but we have also addressed the needs of those who are accused and convicted under our system. The creation of the Scottish Criminal Cases Review Commission has given added resources to those who have already been convicted of their crimes. The commission could be said to have given an added layer of appeal.
The motion calls for the criminal law to be changed. I have listened carefully to the debate and I am not going to jump to conclusions, but it is not enough to say that, just because England has changed its law, Scotland must follow suit. I would never take that approach and I will not do so now. Just because England has changed its law, we cannot assume that it has got it right. If there is a case for change, we must make it in a Scottish context and in the context of the Scottish legal system.
As with all law, the devil is in the detail. Those of us who have looked into justice legislation over the past few years know that that is true. Let us be clear: the principle that we should all support and adopt is that the prosecution should assemble its best case against the accused. We should ensure that the Crown has the proper resources to ensure that it has the best-trained lawyers and the best legal framework for a fair and transparent system.
I have no doubt that the Labour Administration would take bold steps if they were justified, but any change has to be cautious. If we allow a second trial when there is a compelling case, we will have to consider issues such as what offences would be open to a second trial. Margaret Mitchell has spoken about her view about that but, if we specify certain crimes, we must also be clear about why we want to specify those crimes. Should an acquitted person, who may be innocent, live in distress at the prospect that a further trial may always be in the offing? It could be hard for an accused person to get a second fair trial, particularly if the first was high profile. We would have to consider all those matters.
We might also have to consider cases in which the Crown has taken no proceedings and not gone to court. I know of a recent case in which the accused was not fit for trial and the Crown took no proceedings. Even if it was found that the person was fit for trial, there would be no prospect of a future trial. If the Conservatives want to consider allowing second trials, they might have to consider what to do with cases in which there have been no trials.
It has been suggested that it is not only new technology that may bring about a debate on double jeopardy but the fact that, if somebody confesses a crime after acquittal, the law can do nothing about it. That is probably the situation with which the general public would say it has most difficulty.
The Parliament would have to consider whether any change to the law should be applied retrospectively—that is, whether it should apply to all cases from before it was agreed to—or only to cases that arose after the change was made. I imagine that the general public, particularly those who have been victims of crime, would support such an amendment to the law, although I have not examined any research into that.
It is important that we, in considering any change, should try to be objective and balance the interests of victims and the accused. I would expect us to do that in any case, but I can think of other situations in which that equation comes into play. I do not know much about the appeal courts system, but I notice that appeal court judgments in which someone is acquitted rarely result in retrial although, having read some of the cases, I have formed the impression that they would warrant it. Perhaps there are other ways of ensuring balance in the system.
What principles should guide any change or the decision to make no change? There must be reasonable certainty on any law or change to the law. There must be clarity about any change, the range of offences to which it would apply and why it was justified. Any change should also be extremely narrow and it should be for the Parliament to set out the justification for it, having tested as always its fairness to the accused and the victim.
I call Patrick Harvie, to be followed by Colin—I mean Gordon—Jackson.
The subject is clearly worthy of debate, but I find it a little strange that the proposal comes from the Conservatives: proposing to throw out a fundamental principle of the legal system that has been in place for hundreds of years and is accepted around the world does not seem a very Conservative position.
However, a strong emotive case can be made for change. Annabel Goldie mentioned the murder of Stephen Lawrence and Jeremy Purvis mentioned Julie Hogg. None of us can fully appreciate or overstate the impact that undergoing years without justice had on the families of those victims. Annabel Goldie stated that the public would find it unacceptable that the families of victims in similar circumstances in Scotland would be denied justice.
In the face of that strong emotive case, what is the case for retaining the principle that an accused person should not face double jeopardy? It is partly about the need for finality, which is important not only to the victims and their families but to the innocent acquitted. There are one or two lawyers in the chamber; any defence lawyer will know the emotional impact on an accused who is told after an acquittal that it is all over and they can start to rebuild their life. If we were to allow the possibility of double jeopardy, we would make such reassurance impossible. All that could ever be said is, "It might be over now. You never know." As other members have argued, that would turn any acquittal into a provisional acquittal.
Does Patrick Harvie accept that, in any case, an acquittal is provisional in the sense that the person acquitted could be prosecuted for perjury and face severe penalties? In a sense, a case can always be revisited, albeit not in the way that we are discussing.
I do not accept that argument. The current situation gives a sense of finality that would be lost if we abandoned the rule on double jeopardy.
I will talk about the right to a fair trail. We accept that one aspect of fairness is the right to be tried within a reasonable time. What time limit would we place on the possibility of a retrial after acquittal: a year, two years, five years or 10 years? But any time limit would place us in exactly the same situation as we have at present if new evidence were found after that limit had passed. Under the Conservatives' proposal, the right to a fair trial within a reasonable time would, in effect, be abolished.
There is also a risk of an increase in the number of wrongful convictions. It has been well argued that double jeopardy would give an unreasonable advantage to the prosecution, which undermines the fairness of the trial. In any retrial after acquittal, the prosecution would already be highly familiar with the basis of the case for the defence, which is a significant tactical advantage.
I have noted two points in Mr Harvie's line of argument so far: finality and the recently stated point about time limits. Will he confirm whether he believes that justice for a victim and their family, in the event that new and compelling evidence emerges that is probative of the acquitted accused's implication in the crime, should be time barred or cut off by the word "finality"? I am unclear about that.
It is important for us to take seriously the need for justice for families such as those of the two victims who have been mentioned—and their sense of injustice—but I cannot give Annabel Goldie a list of the names of people whose lives may be destroyed in future by wrongful conviction; all I can do is ask us not to take the risk.
The proviso that double jeopardy should be possible only in the most serious cases is no reassurance. Let us remember that the victims of crime are not the only people who suffer real anguish throughout the process. For an innocent person, being put on trial for a serious crime is a traumatic experience. It can destroy a career, a family and a life, but risking for a second time the conviction of an innocent person for a serious crime such as murder would not only destroy that person's life and rob them of many years of their liberty, but rob their family of a loved one and create a sense of finality while the real perpetrator remained at large. Therefore, anyone who wants to make the case for allowing suspects to face the possibility of double jeopardy must explain how the prosecution will not gain the tactical advantage and ensure that there is not an increased risk of wrongful conviction.
I am sorry, but I have to move on.
We also need to avoid the risk of having a media-driven criminal justice system. We can all remember intense media pressure being brought to bear on high-profile cases. We can imagine circumstances in which one or two newspapers set themselves up as the public advocates of a bereaved family, press the police for quick results, demand that justice be immediate and unequivocal and respond with outrage when the evidence is insufficient to convict the accused, who walks free.
Any of us would sympathise with the victim's family in that situation, but the pressure for a retrial would be so intense that any retrial could be made fair only if significant restrictions were also placed on the freedom of the press. Therefore, the argument for double jeopardy leads us to consider its effect on other basic civil liberties, which I ask the Conservatives to re-evaluate.
The final reason why we should reject the Conservative motion is that it is the wrong response to the problem. If cases are being tried on insufficient evidence to convict, we should attend to the investigation of cases and ensure that the most thorough and robust processes are in place. Abandoning the rule on double jeopardy would allow the possibility of slipshod work being done or, at least, tolerated. I hope that the Parliament will reject the idea of abandoning this important rule.
I almost turned from a lawyer into a hurdler, which was not bad.
I am afraid that I am not keen on the motion, either. I am instinctively against abandoning this so-called rule. I understand the argument for abandoning it. I also understand what has been called "manifest injustice": situations in which someone has been prosecuted, got off with it—as people say—but in which it later becomes apparent that they were guilty and justice and the victims demand that they be reprosecuted. I understand that public sensibility is offended by someone dining out on their acquittal and saying that they got off with it.
However, the problem is that, inevitably, apparent injustices in individual cases are caused by any justice system and any rules. That is the nature of a fixed legal system. Some might say, "That's lawyer talk. What about the victims and the people who suffer injustice?" My point is that everyone concedes that there is always the potential for apparent injustices. Kenny MacAskill conceded that. He said that he was in favour of the motion, but that reprosecution would not apply to a case in which the acquittal had arisen from a cock-up or mistakes made by the prosecution. Why not? There would still be injustice for the victim, who would be entitled to go to Kenny MacAskill and say, "Okay. The prosecution made a mistake. They got it wrong, but the man did it. There is compelling evidence. I am the victim—I have still suffered. Why don't you just prosecute him again?" Kenny MacAskill conceded that he does not think that there should be a reprosecution in such a situation. Although there had been an injustice, he would have to say to that person, "Ah, but there are rules in our courts and, for the greater good of keeping a system of justice, we will not reprosecute." We all concede that, in any legal system, there will be situations in which applying the rules for the general good produces injustice in individual cases.
The question that we need to ask is not whether the rule occasionally results in individual injustice—all rules do that—but whether it is worth keeping for the general good. My strong instinct—I will use the word "instinct" for the moment—is that we should keep the rule, but not because it has always been this way. I am one of the few lawyers who would get rid of the two acquittal verdicts—I am with Brian Adam on that. I do not know whether the acquittal verdict should be not guilty or not proven—there are arguments both ways. However, the fact that we have always had two acquittal verdicts is no reason to keep both. I think that having two verdicts is a bad thing. I accept fully that we should not consider the double jeopardy principle in isolation; we should consider it in the round, alongside such things as the not proven and not guilty verdicts. I notice Kenny MacAskill nodding. We all tend to agree with that. [Interruption.]
I am sorry, Mr Jackson, but mobile phones and BlackBerrys must be off.
Is mine still on? I am very sorry. It is off now. My mistake.
Why do I think that the rule, despite the injustice that it might cause, is a good thing? By and large, Patrick Harvie has dealt with that. He said the sort of things that I would have said. He is absolutely right that there would be a problem with getting a fair trial, given the publicity that the press would generate. It is all right for Annabel Goldie to say that there would be very strict criteria. I suspect that there would be very strict criteria—until the tabloid press really started to agitate; the criteria would start to be watered down under that sort of quasi-political pressure. I know that Lord Advocates and courts are independent, but I agree with Patrick Harvie that such pressure is something to worry about.
The main point on which I agree with Patrick Harvie is the subject of closure. I was fascinated to hear Margaret Mitchell say that having a retrial produces closure. Oddly enough, I think the opposite. The suggestion from the Tories would mean that there would never be closure in any case.
Will the member take an intervention?
I do not have time.
I am not sure why we would limit retrials to certain types of case. The ability to have a retrial would certainly not produce closure—not even for victims. If, in the minds of a victim or their family, someone had got off wrongly, they would spend the rest of their days agitating for a reprosecution, trying to find further evidence and trying to give the police further information. That would not help them to get closure.
I have a lot of sympathy for Patrick Harvie's point about what a lawyer says to an accused person. We always assume guilt in these arguments. What about someone who should not have been convicted and is acquitted? They will come out of court and say to their lawyer, "Is that it over?" Now we can say to them, perhaps after a year or two years, "That's it finished." If we were to do what is suggested we would have to say to that person, who had a serious charge hanging over them, "Ah well, it's finished for now. It will probably be finished for good, but you never know." People who have been traumatised will live the rest of their lives with the possibility of the case coming back. That is not overall justice; overall justice means that we have closure. Occasionally that will be hard in individual cases, but, to use the old legal cliché, hard cases make bad law. What the motion proposes would be bad law.
We move to the winding-up speeches. I will have to keep speeches tight on time. I call Mike Pringle, who has four minutes.
The concept of double jeopardy is essential in many western legal systems. It is a maxim that has precedent in British, Scots, Australian, Canadian, Indian, European and American law, but which has come under scrutiny of late. The principle dates from English common law in the 12th century. In essence, double jeopardy denies the state the right to prosecute an individual and have them stand trial more than once for the same offence. Although new evidence and new technology might shine fresh light on a case, the implication of removing the principle could be that we have a Kafkaesque trial situation in which the defendant is lost inside a machine with no control over their fate. Without the protection of the double jeopardy rule, power rests heavily in the hands of the law and the prosecution; removing the rule supports the notion of guilt before innocence.
I agree with Kenny MacAskill that the prosecution has to prove its case; if it does not do so the first time, it has failed to produce the evidence that it needed to convict in the first instance.
In America the principle is enshrined in the fifth amendment of the constitution—somebody cannot be charged with the same offence a second time.
The principle is an essential aspect of a legal system that stresses the rights of the individual within the system. Putting the onus on a legal system to prove guilt in one trial enforces an innocent-before-proven-guilty ideology. The removal of the double jeopardy rule would imply that the defendant had in fact done something wrong and would give the prosecution as much opportunity to prove that point as it desires.
In American law, if a mistrial occurs, the double jeopardy rule often does not apply. In Australia, the double jeopardy rule is a long-established principle. In Canada, the Canadian Charter of Rights and Freedoms prohibits a second trial under double jeopardy. In India the principle is the fundamental right under the Indian constitution.
However, there has been a recent change in England and Wales. As of April 2005,
"the Court of Appeal can … quash an acquittal and order the retrial when new and compelling evidence is produced."
That procedure would apply if new evidence, witnesses and so on came to light, which could spur a new trial. People can be retried only once, but in order for there to be a retrial the prosecution must go through a serious application and determination process at the Court of Appeal.
Pauline McNeill made a good point that just because the principle has been removed in England does not mean that we have to do likewise in Scotland.
Annabel Goldie recently announced the proposal that, in cases in which new or compelling evidence became available, a retrial should be allowed at the discretion of the Lord Advocate and the Scottish court of criminal appeal. However, it is interesting that she went on to say that she and the Scottish Conservatives are fiercely proud of Scotland's unique legal system. Why, therefore, does she want to change our doctrine to that of England?
Why do I argue against the removal of the principle? Well, would defendants receive a fair second trial? Many members have said that the prosecution gets the opportunity but once. Given the publicity that a second trial could create, would defendants get an unbiased jury and judge? I argue that having only one trial forces the prosecutor and investigators to perform. It forces efficiency and readiness before the trial even begins. What about the rights of the defendant? How would they ever be able to clear their name?
Although the arguments for a decrease in the power of double jeopardy laws have definite rationality behind them, that does not negate the fact that the principle remains a fundamental part of not just the western but the international concept of justice as demonstrated by Roman law.
The individual who receives a verdict of not guilty or not proven should have the right to live the rest of their lives. Many members made that point—Gordon Jackson pointed out that the same point applies to the victim, who would continue to pursue the case for ever, were it not for the double jeopardy rule.
Does the defendant deserve some recourse? If a retrial is built on a subjective application and determination process that can be influenced by publicity and media attention, can it be deemed to be fair? Will the system become clogged with the rush of new DNA and forensic evidence?
If I am not proven guilty, I cannot be tried again. Changing the legislation on double jeopardy would upset the balance of power. By changing it, we would alter the very nature of the legal system that has successfully protected all the citizens of Scotland, not just the victims, for hundred of years.
The internationally recognised legal principle to which Mike Pringle referred is ne bis in idem, which, in England, of course, is now ne ter in idem, although it is known by the French phrase autrefois convict—I do not know what the French equivalent for ne ter in idem would be.
The debate has been interesting because there is a consensus that this is a subject that is worth debating. We should all welcome that. A variety of views has been expressed and I will digest them at leisure rather than addressing them in the four minutes that are available to me.
What England has done is certainly interesting. It has restricted to a narrow range of offences the ability to bring someone back for a new trial. Were changes to be made in Scotland, I think that there would be broad agreement that it would be necessary to restrict the offences for which a retrial might be sought.
It is interesting to hear a debate about the three Scots verdicts. I wonder, in a ruminative way, whether juries might be allowed to say, "Not proven, because we think that you should be capable of being retried." However, I suspect that, unfortunately, juries would probably say that all the time.
To Brian Adam, I say that we must not confuse someone being found not guilty with their being found innocent. If someone is found not guilty, it simply means that the required standard of proof has not been achieved. Further, in Scotland, it might simply be the case that eight jurors have decided in favour of one side of the argument and seven have decided in favour of the other side. Sometimes, verdicts can be quite finely balanced.
We could tackle the problem in other ways. For example—and I give this only as an example, not as a proposal—we could change sentencing law so that, if there were to be a prosecution on another matter arising from a trial, which could be shown to have affected the verdict of that trial, the sentence for the second offence could be equivalent to that which might have been passed for the first offence.
Will the member give way?
I do not have time—in any case, in giving the example I am just flying a kite.
In civil law, of course, in many instances people can come back for a second bite of the cherry.
I suspect that things are not quite as clear cut as we might imagine if we were to go by some of the speeches that we have heard.
As a result of its consultation exercise, on which many Scottish lawyers and legal bodies commented, the Law Commission in England made a number of important recommendations. For example, evidence that was inadmissible in the original trial should continue to be inadmissible. If we were to make any changes to the system, we would want to consider that point. The Law Commission also pointed out that, in England, it is possible to retry when there is a tainted prosecution and recommended that that provision should be slightly extended to cover cases in which not only the jury but the prosecutor or the judge has been subject to external pressure.
In Scots law, what is proposed by the Tories can already happen: under a treaty between the United States of America and the UK, someone who is acquitted here can be extradited to the USA and tried for the same offence because there is no requirement to show cause. That is just a bit worrying.
I call Johann Lamont. Minister, I would be pleased if you could take only four minutes.
I will do my best to last that long.
I am grateful for the opportunity to participate in this interesting debate. The position of the Executive on the matter is that we recognise that this is an issue that, for the reasons that have been highlighted, must be considered seriously in the context of Scots law. The approach must be neither, "Because England is doing it, we should do it," nor, "Because England is doing it, we should not do it."
It has been said that the fundamental principle of double jeopardy has been around for centuries. For some people, that is sufficient reason for it to be held on to. However, the record of the Executive shows that we are happy to challenge the comfortable view that things should remain a certain way because they have been that way for ever. Clearly, good arguments have been made today, both for retaining double jeopardy and for reconsidering it.
There has been an attempt to suggest that the Tories' motion represents a matter of principle and that members must vote either for it or against it on principle. However, as Stewart Stevenson said, there are lots of other ways in which the same ends could be achieved, and there are many opportunities for addressing people's reservations about double jeopardy. To me, the motion is not a matter of principle; rather, it merely highlights an issue. As the Executive's amendment says, once we recognise that there is an issue, we must recognise that certain things will flow from addressing it. Our amendment also puts the issue into the broader context of supporting victims, which is a legitimate position to take.
Should there be a review, of course it should take into account the differences in procedure between Scotland and England and whether there could be some way of preventing people from being unfairly pursued again and again other than by holding on to double jeopardy. I know that some people ask hard questions about moving forward because they want to stop change, but I think that the way in which change can be delivered is by being prepared to take on those hard questions—and, in this case, by being open to considering whether getting rid of double jeopardy would solve the problem or whether it might be better to use other measures. My position is that a review would expose the hard questions for which solutions are required.
It is entirely legitimate to recognise the issue in the context of our approach to the way in which the court system serves the needs of those who are victims of crimes and defends the rights of those who are accused of crimes. Kenny MacAskill talked about cultural change and recognised the role of the Lord Advocate in that regard. However, we should not forget that none of that change happened by accident; it happened because people were willing to take hard political decisions and argue the hard case against the professionals who spoke with authority from within the legal service. The professionals said that those changes could never happen and that they should not happen because the new way was not the way in which things happened in the past. This Executive understands that although we must have full regard to the principles involved, we must also push the professionals in relation to the practicalities of people's experience of the court system. Our record shows that we are willing to listen to those who tell us about the problems in the system and take the argument to those who are satisfied with the system.
Instinctively, a move against double jeopardy is in line with the Executive's approach. However, the Executive prioritises the issues that are of most importance—I have mentioned already the priority that this issue has been given in Parliament—and does the hard work of grinding out the practical ways in which we can protect individuals through legislation and delivery of culture change.
Members can support the Executive's amendment, recognising the challenge that double jeopardy represents and seeing the issue in the context of our broader commitment to being tough and rigorous in our approach to the justice system and to making changes where they must be made.
I trust that members will support the Executive's position at decision time.
Frankly, I am disappointed by the Executive's attitude to what has been a very good debate with a number of cerebral contributions.
The Executive claims, correctly, that there has been no great amount of parliamentary activity on the issue in the past. However, the same Executive has not been slow to take action on other issues on which there has been a similar lack of activity. In its amendment, the Executive highlights the fact that the victim should be at the centre of the criminal justice system. Surely what we are suggesting today is consistent with that approach and should be worthy of support.
My point was that the test is what the parties actually do when they have the opportunity to protect victims. We considered that recently, and the Tories have been found wanting. They committed themselves to protecting a principle on trial in absence in the face of evidence that large numbers of cases in sheriff courts were being recalled again and again. Vulnerable witnesses were being forced through an unnecessary process when, in the interests of justice, they could have been protected. The Conservatives have been found wanting in relation to the practicalities.
That is a separate argument and, with regard to the practicalities, I can well imagine a situation in which thousands of warrants have to be issued by courts for people who have been convicted in their absence and do not turn up for sentencing.
Let me return to the principal point of the debate. A number of members have put forward logical and reasoned arguments as to why they cannot support the motion. I will take Mr Purvis's concerns first. He is of the view that sometimes the prosecution might keep something up its sleeve in case something went wrong with a trial. However, the prosecution could not do that because the rule of best evidence says that the Crown must produce its strongest possible case. Therefore, that simply would not happen. We are proposing that only the Scottish court of criminal appeal, on an application from the Lord Advocate, could order a retrial. If the Crown had not presented the strongest possible case, I would expect the High Court to give such an application short shrift and reject it immediately. That might ease Mr Purvis's concerns.
Pauline McNeill rightly asked why we should make the change just because the English have done so, but that is not why we want to do it. She also said that any change would raise a debate about the offences that would be covered. Exactly—why are we not having that debate? To my mind, the offences that would likely be covered by the procedure are those of serious violence, including sexual violence, but others might have a different viewpoint. Let us have that argument.
Of course, the procedure would have to be retrospective. Patrick Harvie said that that would be unjust in itself, but we did not hesitate in prosecuting Nazi war criminals 30 or 40 years after the event—and rightly so. However, if it could be demonstrated that the delay in an application to the Scottish court of criminal appeal was prejudicial, I would expect the court to kick the application out. That would cover Patrick Harvie's fears.
That was the first time that the backers of the motion have used the example of Nazi war crimes. For the most part, they have been talking about situations in which new technology or methods of gaining forensic evidence bring evidence that could not have been obtained at the time. Given that the European convention on human rights allows exceptions to be made to the rule of double jeopardy, but not its abolition, are the Conservatives saying that the exception should specify only cases in which there was evidence that could not have been available at the time of the original trial because the technology was not available?
Clearly, most such cases would arise from the fact that technology can do things now that it could not do 10 or 20 years ago. However, we are saying that there should be retrials when there is new and compelling evidence—for example, a witness turns up who was not available at the original trial. We have drawn the proposal tightly. It refers to new and compelling evidence that could not readily have been available at the time of the original trial. That is the appropriate way to proceed.
Gordon Jackson was right to say that, to some extent, injustice is inevitable. We know that. There are perverse jury verdicts, and witnesses forget things. On many occasions, people who should be convicted leave court having been acquitted. There is nothing that we can do about that—there must always be a presumption of innocence. Surely allowing retrials would give justice to the victims of crime. We would not envisage more than two or three retrials in any one year—if, indeed, there were any at all. However, people are being denied justice; if we implemented the change, they would no longer be denied justice. I support the motion in Annabel Goldie's name.