Double Jeopardy

– in the Scottish Parliament at 3:00 pm on 24 March 2010.

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Photo of Alasdair Morgan Alasdair Morgan Scottish National Party 3:00, 24 March 2010

The next item of business is a debate on motion S3M-6033, in the name of Kenny MacAskill, on double jeopardy. Amendment S3M-6033.1, in the name of Bill Aitken, has been withdrawn. Copies of a revised section A of today's Business Bulletin that reflect that change have been e-mailed to members and are also available at the back of the chamber.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party 3:07, 24 March 2010

I am aware that the Tory amendment has been withdrawn: I pay tribute to Bill Aitken—and to his colleague John Scott, who is not in the chamber—for their forbearance and for the support that they have shown. I think that we are all united in the attempt to resolve matters while retaining the fundamental ethos that has served Scots law well. I assure them that we wish to act as speedily as possible. Our desire has been simply to ensure that we do what we do correctly and appropriately.

A rule against double jeopardy is an essential feature of a fair society: the state should never have unfettered freedom repeatedly to prosecute individuals for the same act. We should aspire to a system in which criminal proceedings are final and in which accused persons are spared the anxiety and humiliation of repeated trials.

That does not, however, mean that we should leave the law on double jeopardy alone—times change and the society in which we live evolves. Although the ancient principle against repeated trials should remain, we must reflect on the fact that it is the product of a different time, in which the protections that were available for accused persons were rudimentary by today's standards. The rule against double jeopardy is a blunt weapon, which was devised to protect individuals against persecution by a medieval state. It is only prudent that a modern society take stock and consider areas where old laws need to be updated to reflect changes, whether in society or—as I will comment on in a moment—in science.

My clear view is that the double jeopardy rule is in need of reform. It needs to take account of the checks and balances of a modern justice system and of advances in forensic science. An absolute bar against a second trial can bring the law into disrepute when an acquitted person makes a clear confession or compelling new evidence emerges. We have many important checks in our justice system, as is right and correct, and I am satisfied that there would be no unfairness in creating exceptions to the rule for very serious cases in which particular and stringent tests were met.

If the proposals are enacted, it will be for prosecutors and the police to examine the merits of cases and for the High Court of Justiciary to listen to the arguments and decide whether a retrial should be permitted. In individual cases, those are rightly decisions for the independent parts of our criminal justice system.

We have debated the issue previously in the Parliament; I recall many compelling arguments in favour of change from members of all parties. I am pleased to be able to return to Parliament having published on Monday a consultation paper on the subject. The consultation, which will run until 14 June, seeks views on various aspects of reform of the rule on double jeopardy.

I do not expect reform of the rule on double jeopardy to have an impact in many cases, which is as it should be. The reform is focused on the rarest but most serious cases—on some of the worst and most sickening injustices that are possible under the existing law. It is about pursuing the perpetrators of serious offences when there are compelling signs that they have gotten away with it. In such cases justice is, of course, of the greatest importance for victims and their families, but there is also a vital public interest in terms of ensuring that confidence is maintained in the criminal justice system. People simply do not understand why compelling new information or a post-trial confession cannot justify a new prosecution for a heinous crime.

Our criminal justice system is not simply a contest between the Crown and the accused's agents, with the court as final arbiter—it is not a game between my learned friends. It is about delivering justice for victims, families and communities and it is about achieving fairness for victims and society, as well as for the accused. That is what we must seek to deliver and why we need to effect change. To do otherwise would invite manifest injustice.

The consultation paper builds on the Scottish Law Commission's recent "Report on Double Jeopardy". I am grateful to the commission for its work on the issue and on the related issue of creating a Crown right of appeal against decisions, such as that there is no case to answer. That reform features in the Criminal Justice and Licensing (Scotland) Bill, which is currently before the Justice Committee. The commission's work stemmed from a reference that I made in 2007 and, as I am a long-standing advocate of reform, it is gratifying for me to see progress.

I accept the Scottish Law Commission's proposals on restating in statute the rule on double jeopardy and on allowing a new trial when an acquitted person subsequently confesses or when the original case was marred by corruption or intimidation. Those reforms are sensible and long overdue. No one should be able to mock our system by boasting with impunity about their guilt, and nor should those who corrupt a trial with threats or intimidation expect to be free from the prospect of retrial.

The more difficult question is about situations in which compelling new evidence emerges after a trial. The most commonly cited example of that is to do with DNA material, but new evidence can come in other ways, such as through a previously untraced witness or a technological innovation such as improvements in photo imaging. The benefits of such material are clear: it can create a compelling case for a new trial. I understand the frustration that many people feel when new evidence emerges but cannot be used. On the other hand, there are reasonable arguments against a new-evidence exception. It is certainly true that the law should be clear and that acquittals should generally be certain and final, that there are limitations to technology, and that there might be a risk of prejudicial publicity at a second trial.

Understandably, the Scottish Law Commission found the arguments difficult to reconcile. It did not recommend either way on whether to have an exception to double jeopardy when new evidence arises. Personally, I am strongly inclined to favour a new-evidence exception, and I also think that it should apply retrospectively. However, the issue is complex and important and it is one on which I would like the opinion of consultees. It is important to take time to listen to views and to get the reform right. However, there must be a clear direction of travel, which is what the Government is setting out.

The consultation paper is focused on the arguments for, and the format of, any new-evidence exception. The principal issues on which views are sought include which offences should be covered by such an exception and whether it should be retrospective.

Photo of Robert Brown Robert Brown Liberal Democrat

I was interested to hear that instead of following the Scottish Law Commission's recommendation that the new-evidence rule be restricted to murder and rape the Government has to decided to apply it to a range of other offences. Will the cabinet secretary enlighten us as to why The Government has felt it appropriate to move in that direction?

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

We will consult on the matter but we are aware that, south of the border, the rule applies to numerous offences apart from murder and rape. I am happy to listen to the views of consultees and, indeed, to Mr Brown on the issue, although it seems to me that if, for example, manifest injustice were to come up in terms of a war crimes trial, it would be wrong not to pursue it. If a major paedophile trial, such as with operation algebra, were to gang agley, it would be wrong if we did not remedy that manifest injustice. I am not prejudging the consultation, but I must repeat that the possible offences that can be prosecuted in this way south of the border are serious and significant and go beyond the murder and rape offences to which the Scottish Law Commission has referred. I certainly think that many members of the public would be gobsmacked if justice could not be served with regard to terrorism, war crimes or paedophile offences.

Photo of Margo MacDonald Margo MacDonald Independent

Before the cabinet secretary moves off the point about new evidence, does the proposal have implications for the publicity surrounding any potential second trial?

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

Of course it does. As I said earlier, that is one of the arguments against the measure and one of the reasons why it is felt that it will be used very sparingly. Ultimately, the police and the prosecution service will have to decide whether there is any new evidence or a clear admission of manifest injustice. Equally, the High Court will have to decide whether a trial can proceed. Such a decision will not be at the whim of a procurator fiscal; the High Court's approval will have to be sought and granted. The court could well be persuaded that clear and compelling new evidence existed, but might equally decide that the publicity would be so prejudicial that it would be inappropriate to go ahead with the trial. What we as a Parliament are seeking—and what we as the Government are trying to drive forward—is the opportunity to consider ways of remedying such injustice. Ultimately, it will be for the Crown to consider whether the case should be brought and for the High Court to give its approval.

I return to the consultation. We will also seek views on what test should be applied in assessing new evidence: whether evidence that was available but was not used should count as new; whether a disputed judicial ruling that stopped a case should be open to review; and whether to include evidence that was not admissible at the first trial, but which would be at a second. I look forward to consultees' views on those important points and I assure Bill Aitken again that I intend to follow the consultation with legislation at the earliest opportunity.

I am pleased that there seems to be a great deal of cross-party support for reform of the law and I welcome the supportive comments that have been made recently by the Opposition spokesmen. I have discussed with Mr Aitken and Mr Brown their stage 2 amendments to the Criminal Justice and Licensing (Scotland) Bill and understand what they are seeking to achieve.

We are seeking to remedy an anachronism. It must be accepted that the measure should be used very sparingly, but we have to ensure that justice is served in the 21st century, in which our society, forensic science and a variety of other matters have changed. As Mr Brown and Margo MacDonald have suggested, the measure must be balanced with ensuring the rights of the accused. However, as I said earlier, the law is not a game and justice has to be served. This is not about arbitrating between my learned friends for the prosecution and my learned friends for the defence. Justice dictates that if a manifest injustice emerges, either through new evidence or a confession, a new trial should be possible, even though—as I made clear to Ms MacDonald—the ultimate decision is for the High Court.

I move,

That the Parliament agrees that, although double jeopardy must continue to provide an important safeguard, it needs to be reformed to fit with a fair and modern criminal justice system; agrees that persons who confess after an acquittal or who undermine trials by threats or corruption should be retried; supports reform to allow a second trial in very serious cases where important new evidence emerges and for this to apply retrospectively, and welcomes the Scottish Government's consultation on this issue.

Photo of Mike Pringle Mike Pringle Liberal Democrat 3:19, 24 March 2010

The rule against double jeopardy is a fundamental principle of Scots law that provides essential protection of the individual's rights against the state through the promotion of finality in criminal litigation and the avoidance of unnecessary distress to the accused through repetition of the criminal process.

However, that is not to say that the rule should necessarily be regarded as being universally suitable for a modern justice system that has, since the rule's inception, changed beyond recognition. Liberal Democrats therefore support the Scottish Law Commission's recommendation that the rule against double jeopardy be clarified and laid out in statute as part of a fair and modern criminal justice system. We also welcome this week's commitment by the Scottish Government to examine through a full consultation this fundamental, yet extremely complex, issue.

We support setting out exceptions to the rule against double jeopardy in cases where the original trial was tainted, for example through jury tampering, where the acquitted individual has since confessed to the crime and—in cases of murder or rape—where important new evidence, such as DNA evidence, emerges.

Photo of Stewart Maxwell Stewart Maxwell Scottish National Party

I have in front of me the list of qualifying offences in England and Wales. Will the Liberal Democrat member explain why his amendment does not include sexual offences against children, serious drug offences, genocide, crimes against humanity and war crimes?

Photo of Mike Pringle Mike Pringle Liberal Democrat

The Liberal Democrats believe that the exception should be used only in exceptional circumstances. The list that the member has just mentioned would extend to a broad spectrum of criminal offences. The exception should apply only where the evidence was not, and could not, with the exercise of reasonable diligence, have been available at the original trial.

I echo the thoughts of the Cabinet Secretary for Justice, who states in the foreword to the consultation that any reform of double jeopardy may affect

"only a handful of cases", but that it is vital to ensure

"public confidence in the justice system".

However, in protecting that integrity, we must ensure that cases are re-examined only when that is in the interests of justice, as determined by the High Court. I agree with the cabinet secretary that the High Court must make the final decision.

Cases that might lead to a new trial will, by their nature, be extremely high profile. We have already seen a clear example of that in the World's End case. In 2007, Angus Sinclair was cleared of committing what had become known as the World's End murders after his trial collapsed when the judge ruled that the Crown had insufficient evidence to put the case before a jury. Following the collapse of the trial, there was a lot of speculation that the prosecutor had failed to lead potentially significant DNA evidence. All that took place in the full glare of the media spotlight.

It is therefore vital to ensure that the proceedings at any trial are not prejudiced by publicity. The SLC report addressed that by recommending that the court be given powers to order limited publication of reports and a complete ban on press reporting, which is—I believe—worth considering.

As, I am sure, everyone in the chamber realises, any reform of such a complex and fundamental principle of the justice system will not be without its pitfalls. Perhaps the most notable issue to be considered in the consultation is the on-going debate regarding the exception on new evidence and the various surrounding issues that would govern when such an exception should be applicable. That split the commission in the SLC report.

Although reforms in England and Wales might be a useful starting point in examining the various arguments that surround the issue, it is important that they are not necessarily seen as being a preconceived goal, given the significant differences between Scots and English law. The Criminal Justice Act 2003, which changed the law in England and Wales, provides for a wider scope as to what constitutes new evidence than the SLC recommends. We must ensure that Scottish legislation does not simply follow suit, but does what is appropriate in a Scottish context.

Although the SLC recommended that the exception on any new evidence apply only to murder and rape—as the minister has outlined today—the Scottish Government believes that there is a strong argument for some other serious offences to be included. That point is crucial: extremely strong justification for their inclusion will be required. It is not easy to see why other crimes merit a departure from the current double jeopardy rule, particularly given that there are calls to limit the broad range of offences to which the rule on double jeopardy no longer applies in England.

The other main issue is retrospection, on which we agree with the cabinet secretary. In essence, the issue is whether a defender who was tried under the law as it stands could be retried on the basis of reformed legislation. It is important to note that that would have no bearing on the legality of the alleged offence itself, only on the number of times that an individual can be tried, but the debate is nonetheless difficult.

It is notable that the SLC report was against retrospection, having identified a possible problem regarding the compatibility of a retrospective exception on the basis of new evidence with the right to a private and family life under article 8.1 of the European convention on human rights. However, given that the commission made no recommendation regarding a new-evidence exception, and recommended that any exception should not apply retrospectively, it did not seek to reach a conclusion about whether there would be merit in an article 8 challenge to such retrospective application.

We believe that it might be somewhat arbitrary if acquittals that occurred before a certain date were final while those that occurred afterwards could be looked at again in the event of new evidence having emerged. The concern regarding the accused's confidence in the finality of the first verdict is linked closely with the scope of the exception. Therefore, if a new-evidence exception is to be applied retrospectively, it is even more important that it would apply only in the most serious cases.

I welcome today's part of the on-going debate and look forward to the results of the consultation.

I move amendment S3M-6033.2, to insert after "retrospectively":

"; considers that any new evidence exception should be strictly limited and should apply only to cases of murder or rape; recognises that, in all cases, the High Court should approve applications for a retrial only where it is in the interests of justice to do so,".

Photo of Richard Baker Richard Baker Labour 3:26, 24 March 2010

I hope that this debate will be the start of a process in the Parliament that will result in significant modernisation of the law on double jeopardy. I am confident that such a move will receive broad support throughout the chamber. I very much agree with what the cabinet secretary said in his opening remarks. There may well be debate about the detail and parameters of the change, but it is right that we seek to forge a consensus for change on this important matter of justice. Although this reform of the law might directly affect only relatively few people, as the cabinet secretary pointed out, 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 thus far been denied justice.

There can be no more sickening sight than that of a killer walking from a Scottish court free from punishment for the crime. We have to accept that that has happened in Scotland. If we can properly rectify such an injustice, we should do so.

We must thank the Scottish Law Commission for its deliberations: there can be no doubt that in considering the case for reform of this 800-year-old part of Scots law it took on a significant task.

However, it is disappointing that although the commission accepted the case for retrials in instances of confession and tainted trials, it made no recommendation to allow retrials in cases for which there is new evidence. It suggested a legislative framework, should Parliament ultimately choose to go down that route—I hope that it shall—but that framework does not allow for retrospective application. The commission did not accept that there is evidence that there are current situations in which this change of law would lead to retrials if new evidence were to be made available. I find that to be an odd conclusion—one which I believe will be proved to be incorrect.

However, I am pleased that the Scottish Government has taken a different view and has embarked on the process. I inform Parliament that, rather unusually, we will support the Scottish Government motion unamended. It is right that the motion does not restrict the areas in which changing the law on double jeopardy may apply after the consultation, as the Liberal Democrat amendment proposes, particularly given how early it is in the process.

The change in the law in England and Wales, which has been in place for some five years now, applies to a wider range of crimes than murder and rape, as the cabinet secretary and Stewart Maxwell pointed out. That range includes manslaughter, kidnapping, armed robbery and serious drugs crimes. We think that the matter needs to be considered seriously. Of course, there will be the opportunity to consider it during the consultation process. Bill Aitken has done the right thing by withdrawing his amendment, which will now allow for the principle of retrospection to be maintained in the motion. However, I acknowledge the important issue that has he raised, which is that we must ensure that legislation on this is developed as soon as is practically possible. It is right that he brought that matter to the attention of the Parliament, because it needs to be dealt with carefully. We would support stand-alone legislation after a consultation. It is also right to say that the matter has been debated in the Parliament for some time. Of course, the Scottish Law Commission invested considerable time in preparing its own report.

It is right that retrospective implementation is mentioned explicitly in the motion, in particular to inform the consultation process. Given the access that prosecutors now have to new techniques and technologies, such as DNA evidence, that can show proof of criminality even in cases that are many years old, it is right that the proposed new law should have a retrospective impact. We all remember the trauma that was caused by the collapse of the trial for the World's End murders, to which Mike Pringle referred. Indeed, we all remember the Lord Advocate's statement to Parliament on the matter. If the law is not changed retrospectively, the hopes of the families of Helen Scott and Christine Eadie will have no chance of being realised.

I have heard it argued that double jeopardy is an important principle that should be maintained, because accused persons who have been acquitted should have the right not to have the prospect of a retrial hanging over them. I agree that changes to such an important principle must be dealt with very carefully and with appropriate safeguards. However, adhering too closely to that principle would not take account of the rights of victims and their families to achieve justice for horrors that have been committed against them if they have been failed by court processes. I hope that the consultation process ensures that the views of families and victims are properly taken on board.

Photo of Robert Brown Robert Brown Liberal Democrat

Richard Baker has phrased the matter in an interesting way. The issue, surely, is not the horrors that have been committed against individuals—although those are, no doubt, what lies behind the concern—but the alleged horrors. On such allegations, the need for the criminal trial to find the truth is the important issue that we should keep in front of us.

Photo of Richard Baker Richard Baker Labour

Many people are confident that the outcome of the criminal trial that I mentioned will be that the allegations will be proved, but I take Robert Brown's general point.

I accept that parameters and safeguards are needed. I do not argue that people should be tried again and again for the same crime, but I am assured that the need for safeguards will rightly be an important feature of the consultation. The legislation that was passed for England and Wales includes the safeguard that the Court of Appeal must agree to quash the original acquittal. The Cabinet Secretary for Justice has pointed to further safeguards, which we can imagine will be put in place in any legislation that might introduced in Scotland.

The Scottish Law Commission report points out that the change in the law south of the border has not resulted in a raft of new convictions. Of the six applications for retrial that have been determined, three have failed. For me, far from being an argument against making the proposed change, that shows that the legislation in England and Wales is being applied carefully and proportionately and is working. Given that the legislation has been in place for some five years now, we surely have nothing to fear from such a change in the law. I hope, and am confident, that ministers will look at the experience in England and Wales when coming to a final view on whether the law should change in Scotland.

I do not pretend that retrospective application would affect a huge number of cases in Scotland, but I believe that it would apply to some important cases, in which families have been devastated because in their fights, justice in the name of their loved ones has not been realised.

The proposed change in the law should not be taken lightly. We will need to consider carefully how exactly the law should be changed—that is what the consultation process will be about—but there must be a change. As well as providing an important reform of the law for the future, the change should ensure that, wherever possible, we can right past wrongs to ensure that those who should have received justice finally do so.

Photo of Bill Aitken Bill Aitken Conservative 3:33, 24 March 2010

A perhaps interesting starting point to the debate is that there is actually no law of double jeopardy in Scotland, where the somewhat quaint and anachronistic phrase "tholing one's assize" is what applies. Basically, the principle is that no one should be tried for an offence on more than one occasion. As a general principle, that is entirely correct because any democratic and fair society that seeks to have a credible justice system cannot simply allow people to be prosecuted time and again until the prosecutor gets the result that he is looking for.

At the same time, we also need to recognise the times in which we live. Clearly, there is a sound argument now for looking at the existing double jeopardy laws anew, in recognition of the fact that times have changed and that circumstances are somewhat different from when the wont, the usage and the practice of our courts was established.

As the cabinet secretary mentioned, I have lodged amendment 115 to the Criminal Justice and Licensing (Scotland) Bill. Although that amendment might now go no further following the cabinet secretary's announcement today, I think that I was right—as was Robert Brown, who lodged a similar amendment—to propose such a change because that has accelerated a process. I think that there is unanimity in the Parliament that we should look again at the matter.

However, the review has to be restricted to the type of case that we would deal with. There is the question of new evidence. In recent years forensic science and the use of DNA have progressed to an amazing extent. Facts can be established and things can proved that forensic scientists in the era of Glaister could not have imagined, and we must recognise that. We must also recognise that sometimes new evidence, that could not have been reasonably thought to be available at the time, comes to light at a later stage. Those are the sort of cases that I envisage being looked at under that particular heading.

There is also the aspect to consider of juries having been influenced, bribed or threatened, particularly by people who are involved in serious and organised crime. That is a real risk and although I am not aware of any evidence to suggest that any trial has failed on those grounds, we must guard against that possibility.

There is also the issue of subsequent confession. Richard Baker was wrong when he said that nothing is more offensive than the sight of a convicted criminal leaving the court wrongly. What is even more offensive is that same criminal leaving the court and boasting later, sometimes for gain, that he did commit the crime. Even then, I would be looking for the safeguard that such a confession would be subject to the Scots law provision that a confession or admission has special knowledge within it. The law in that respect is very well established.

Photo of Margo MacDonald Margo MacDonald Independent

The member said that the proposed legislation should apply only to very serious crimes and trials. So far, we have heard about crimes of violence. Is there never a case for a serious trial for robbery of some sort?

Photo of Bill Aitken Bill Aitken Conservative

I should make the point that robbery is violence, but I will come to that point presently.

I would not envisage double jeopardy being used in a case in which a jury that has been properly advised and directed comes up with a perverse verdict. I accept that it must be a galling experience for prosecutors when a jury is prepared to acquit in the face of overwhelming evidence, but that is life—we just have to move on from such things. The jury system might not be perfect, but when one considers the various alternatives, one cannot come up with a better way of judging guilt or innocence.

The law on double jeopardy would also not cover errors or omissions on the part of prosecutors.

There is merit in the Liberal Democrats' amendment, but I urge caution. We are at an early stage and do not wish to have a prohibitive or exhaustive list of the crimes that could attract applications for a retrial. Margo MacDonald brought up the question of robbery, and other members have mentioned different categories of crime—the cabinet secretary mentioned paedophiles. A case in which alleged terrorists walk free and subsequent evidence is found that would ensure a conviction could be another such case. We should await the result of the consultation. Because of these issues, we are unable to support the Liberal Democrats' amendment.

The danger of high-profile cases and the publicity that they attach is self-evident, but let us look at what we are trying to do here. An application to the High Court of Justiciary would have to be determined against a background in which publicity could well have adversely affected the prospect of a fair trial. That would have to be taken into consideration.

We should also look at how the legislation has worked in other jurisdictions. Since it was introduced in England, as Richard Baker rightly said, of six cases only three have been successful. I do not think that new cases would be an everyday event in Scotland: I think it would happen once every few years, if in fact it reached that extent.

I am confident that the High Court of Justiciary would apply the proper approach, by which only the most exceptional cases would come before the court for a retrial. The question of the prejudicial publicity that a specific case might attract would also be a relevant feature to be determined.

We are at an early stage in considering the issue; it is proper that we are debating it, and I look forward to its progression through Parliament and the committee process in the months ahead.

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

At this stage, members can, if they wish, take up to a minute longer than they were expecting to take. We move to the open debate.

Photo of Stewart Maxwell Stewart Maxwell Scottish National Party 3:40, 24 March 2010

The rule against double jeopardy is of course—as other members have said—one of the longest-standing pillars of our justice system, and we should not throw it away lightly. However, it is clear that the world in which the absolute rule against double jeopardy was relevant has gone, and the position that says that there should be no change to that rule must go with it.

I, like other members, thank the Scottish Law Commission for examining the issue. Its conclusions do not go far enough, nor are they strong enough, but they take us a considerable distance towards a more balanced legal system.

I oppose the idea—as other members have outlined—that the Crown should have the right to go after people until it gets a conviction. However, if it emerges after a trial that the trial was tainted in some way, if the person confesses to the crime or if new evidence emerges, it cannot be right that the guilty can walk free.

Although not everybody is in favour of new evidence as a reason to set aside double jeopardy, that is the area that most needs to be included in any change. It makes no sense to suggest that changes to the rule on double jeopardy should be limited to tainted trials, for example. There can be no one who does not understand the implications of the emergence of DNA evidence in relation to double jeopardy, but the issue concerns not only DNA. We do not know what new technologies will emerge in the future to allow us to ensure the conviction of the guilty, although the cabinet secretary listed some possible examples.

In Australia, the demand for change was driven by the Regina v Carroll case, which hung on inconsistent testimonies as to the identity of the person who was responsible for the bite marks that were found on a baby who had been killed. Mr Carroll was eventually freed on appeal, but subsequent advances in medical technology revealed that he was indeed responsible for the bite marks and for the baby's death. That shows that DNA advances are only one type of new evidence that can shine new light on old cases.

A major issue is whether all cases, or just a limited number, should be open to retrial. Logically, it seems that the argument in favour of change should apply equally to all cases but, in practical terms, that is not necessary, proportionate or appropriate. The main question that we must answer is where we draw the line, but that is difficult, as other members have stated. I do not think that there is any disagreement in relation to the offences of murder and rape, but it is clear that even among those who agree that there should be a change in the law there is disagreement about how far we should go. That is perfectly illustrated by the Liberal Democrat amendment, which I do not support. I am astonished that the Lib Dems do not accept that, for example, genocide or sexual offences against children merit inclusion—or, as Mike Pringle said earlier, that they are serious enough.

I would generally support the list of offences that have been chosen in England and Wales for exemption from the rule against double jeopardy, but there are gaps in that list. It includes murder, attempted murder and soliciting murder et cetera, but it does not include very serious assaults. I believe that that should be examined closely.

Photo of Margo MacDonald Margo MacDonald Independent

Why has the member departed from the basic logic that a tainted trial or a wrong verdict should qualify as a reason to set aside double jeopardy in any case at all? What is his logic in seeking to make exceptions?

Photo of Stewart Maxwell Stewart Maxwell Scottish National Party

I am sorry if I did not explain that properly—I skipped over the issue, given the shortness of time, I support setting aside the rule in tainted cases or in situations where there have been confessions after a trial, which is a reasonable position to hold. However, with regard to cases of new evidence, it is reasonable to restrict the measure to the more serious cases.

I support the inclusion in the England and Wales list of sexual offences such as rape and attempted rape, but I question why intercourse or incest with under-13s is included when the list excludes the same offences with an older child. It seems that the more appropriate category for inclusion is one that covers those offences with those under the age of consent, rather than with those aged below 13.

I would also want to include other sexual offences against children. In particular, I would want to ensure that offences involving child pornography or paedophilia are included in any Scottish list. The drugs offences in England and Wales cover importing, exporting and producing Class A drugs but do not seem to include the supply of such drugs. I can envisage cases when a person controls the drugs industry in large parts of our cities but does not import, export or produce the drugs. I would therefore wish to see the supply of class A drugs included in our list.

There is no time today to go through an exhaustive list of what could or could not be included, but I say to the cabinet secretary that, if the bill to change the law on double jeopardy does not, in my view, cover the types of offences that I have referred to, I intend to lodge amendments to the bill to ensure that we get the debate that is required on such issues and, I hope, to get some of those amendments agreed to.

Photo of Bill Aitken Bill Aitken Conservative

Bearing it in mind that the list cannot be exhaustive, would the solution to this difficulty simply be that double jeopardy law should apply when, in the opinion of the Lord Advocate, the case is sufficiently serious? It would then be determined by the High Court, which gets round the problem.

Photo of Stewart Maxwell Stewart Maxwell Scottish National Party

I thank the member for that suggestion. I considered offering that as a possible solution, given some of the difficulties of creating an exhaustive list. We should debate that suggestion closely as a possible answer to the problem.

I turn to what I believe is one of the most important questions about the changes to double jeopardy law—whether they should be retrospective. In all honesty, I can see no logic in saying that such changes should not be retrospective. If we do not allow retrospective application of changes to double jeopardy law, we are endorsing the past injustices that have been perpetrated on Scottish citizens. That is unacceptable. One of the greatest advances in criminal investigation has been the application of new technology to cases and, in particular, the introduction of DNA evidence. Advances in DNA evidence are leading to the solution of cases in which no person was convicted at the time or has been subsequently—so-called cold cases. If we have convincing new evidence, nothing should stop our prosecutors charging and trying an individual—even if they were acquitted before any changes in the law came into force.

Justice is not served by the ability of an individual to escape justice as a result of a tainted trial, by post-trial confession or by the discovery of new evidence after the trial has concluded. We have a duty to protect Scottish citizens and it does not serve the interests of justice or of victims for us to put the history of the law ahead of compassion, mercy and doing the right thing. I therefore ask members to support the motion, reject the Lib Dem amendment and pledge to work together to end what may be a long legal tradition, but is one that no longer serves the interests of justice in Scotland.

Photo of Hugh Henry Hugh Henry Labour 3:47, 24 March 2010

When I began to reflect on the debate, I started with the instinctive view that I would not be happy with anything that gave the state the "unfettered" right, as the cabinet secretary described it, to prosecute and persecute people. It is important that we build into our system safeguards that protect the individual from abuse by the state. It is not right that the police have the right, time and again, to come after someone simply because they cannot get the case right in the first place, nor is it right for prosecutors to come back time and again because they failed, for whatever reason, to get the verdict that they thought was right.

Also after reflection, however, I concluded that it cannot be right for victims and their families to see someone who is palpably and clearly guilty get off scot free when they have, as Bill Aitken and others have suggested, admitted their guilt for whatever reason, or new evidence has emerged that demonstrates beyond all reasonable doubt that they should have been convicted of a serious offence. The balance should shift in favour of victims and their families—and, indeed, the public—so that when it can be clearly demonstrated that evidence now exists in the case of someone who, for whatever reason, was previously acquitted or found not guilty, it should be considered whether to prosecute that person again.

Such an approach cannot be unfettered, as a number of members have suggested. It would not be right simply to have every possible case brought forward. I am not sure that I wish, in this debate, to go into the full list of circumstances that would justify that. Today, we should be debating whether it is right in principle to change the present practice. Then, through the process of consultation that has been outlined by the cabinet secretary, we should give ourselves and others the opportunity to reflect and consider how best the approach can be adopted carefully. We should proceed cautiously and carefully. The last thing that we wish to do is to rush headlong into addressing an injustice in such a way that creates another one in the process. If there is new evidence to demonstrate a case beyond all reasonable doubt—through improvements in DNA techniques, for instance—it should be considered. As I said, I do not wish to go through an exhaustive list of circumstances, but I instinctively agree with Stewart Maxwell that, where serious sexual offences have been committed against children, we cannot close our ears to the cries for justice. I do not think that the Liberal Democrats' proposal to restrict the policy to very specific circumstances is the right one.

We have long-established principles in this country that the law should not be retrospective, but the case has been made that, if someone has previously been convicted, then we have changed the law and the evidence is found to be there, there is an argument for looking at it. I hope that that will be considered sensitively in the consultation process.

Publicity is a difficult issue. Trials can be tainted by publicity. The problem is that the publicity surrounding a first conviction, or rather the lack of a conviction, would almost demonstrate—if we consider the argument against the proposal—that no cases could ever be brought back before the courts. There will inevitably be publicity. Judges will have to consider that carefully, but they are experienced in doing so at present, and publicity in itself should not rule out the opportunity to hold another trial.

Photo of Robert Brown Robert Brown Liberal Democrat

Would Mr Henry nevertheless accept the importance of having no prejudicial publicity emerging from the consideration of a request for retrial? That could foul up the fairness of the retrial.

Photo of Hugh Henry Hugh Henry Labour

I agree with that point, but the same applies to the first trial. The judge must make it clear to the press and other parties that injudicious comments could prejudice a fair trial, so people should be very careful. Unfortunately, we now live in the kind of society where prurient and sensational headlines and stories appear, and, although they might well sell papers, they do not help the judicial system. The judge will have to take some responsibility for that.

Photo of Margo MacDonald Margo MacDonald Independent

I suggest that that point is now wider than it might have been in the past. We are not talking merely about newspaper files and reproductions of past stories; we are talking about the internet, which is an unfettered opinion outlet. We must therefore consider seriously how public opinion will be influenced.

Photo of Hugh Henry Hugh Henry Labour

I do not doubt that that is the case, but the same applies to all trials. Such is the scope of the internet that people can read comments that have been made elsewhere about trials taking place in this country. Indeed, if we were to take the argument to its logical conclusion, the scope of the internet would allow very few trials to proceed. Care needs to be taken, and I am sure that it will be.

On the question of who should make the decision and how it should be made, I am attracted to the suggestion that the Lord Advocate should determine issues of serious significance and that a judge should make the final decision. My mind is open on the matter and I hope that more evidence on that will emerge as a result of the consultation.

I support the principles that the cabinet secretary outlined in what I thought was a measured speech. It is right that the Parliament takes steps to change something that I believe to be fundamentally wrong.

Photo of Ross Finnie Ross Finnie Liberal Democrat 3:56, 24 March 2010

I am very pleased to take part in this important debate, in the course of which have emerged a couple of interesting issues about what we are seeking to do. Bill Aitken was right to remind us all of the exact status of double jeopardy—a phrase that I use advisedly—in Scots law. I have noted a tendency in the debate for people to talk about redefining principles; I do not wish to get into a semantic debate, but I believe that there is an inherent danger in that point of view. If we talk about redefining a principle but then start to make exceptions to it, we will find it very difficult to have a logical discussion about where, in fact, we stop.

To that extent, the cabinet secretary was right. If we are seeking to follow the Scottish Law Commission's recommendation that there ought to be a presumption against double jeopardy, surely it is more logical to rewrite the law to state expressly the conditions under which an exception might be made instead of beginning with some emotional attachment to an alleged principle of Scots law that one seeks to defend. That will only make it difficult to allow exceptions to be made. Indeed, the debate has already made clear the difficulty of the whole exercise.

There is a very serious case to be made for retrospection, but again I am not sure that we are discussing strict definitions in that respect. My understanding was that retrospection was about applying a new law to an existing set of circumstances that might have become difficult to justify, but I do not think that that wholly covers what we seem to be talking about here, which is the application of a new law to new circumstances. I think that that only strengthens the case for examining these issues carefully.

With regard to the other issues that have been raised by the cabinet secretary and various members, there is no doubt that we need a clear view of the issues and cases that would be affected by any redefinition of this principle. Notwithstanding our amendment, there is some logic in the argument that it should apply to everything. It should certainly be considered in the first two areas highlighted in the Scottish Law Commission report—confessions and what we have loosely described in this afternoon's debate as tainted trials—because it would be very difficult to seek restrictions on such matters.

As for the issue of new evidence, however, we should not seek to create a law that would allow proceedings merely to go on and on and would make any interpretation impossible. That would not be in the best interests of serving justice.

Much has been made of DNA evidence but, of course, even that is not a simple matter. In his speech, my colleague Mike Pringle referred to the World's End case, in which DNA evidence was involved. However, in the context of this debate, we should bear it in mind that the judge's ruling on the adequacy or inadequacy of the evidence in that case bears on the points raised the Scottish Law Commission report and that the World's End case itself highlights the failure of due diligence on the part of the prosecution in presenting evidence in a proper and acceptable form.

These are not simple issues, as the cabinet secretary and my colleague Mike Pringle have properly pointed out. However, without a shadow of a doubt, if a test can be applied to new evidence that demonstrates that justice has not been done, the case for amending and rewriting the law of double jeopardy is, I believe, very fairly made. Therefore, I welcome the Government's consultation on double jeopardy, to which I agree alterations need to be made. It will not be an easy task. Framing the legislation will be quite complex, because it will be difficult to ensure that we achieve the objective of keeping a general presumption against double jeopardy, while allowing for clear exceptions that can be both understood by the public and easily interpreted in our courts of law.

Photo of Nigel Don Nigel Don Scottish National Party 4:01, 24 March 2010

Members will not be surprised to learn that I will address an issue that has not been covered in the debate so far. In doing so, I propose to quote pretty extensively from the Scottish Law Commission report number 218, which we all have available to us.

In particular, I want to highlight the issues that are raised by what the Scottish Law Commission describes as the third application under English law, namely the case of Regina v Andrews of 2008. For those who may not recall the details, let me quote:

"In R v Andrews, the respondent had been acquitted of indecently assaulting and then raping SN, a girl of 15 who assisted at a summer camp run by his company. Thirteen years had passed between the alleged offence and the trial. The evidence of SN, who also gave evidence of having suffered sexual abuse in other unrelated incidents, was largely unsupported. Andrews presented himself as a man of good character who had a long and unblemished record of working with children. The jury acquitted on all charges. Following the acquittal, Andrews' ex-wife read of the case and went to the police, informing them that he had been arrested, many years previously, in connection with the indecent assault of three children at the school at which he then worked. Following an extensive police investigation, a further indictment was laid against Andrews, charging 17 counts of offences relating to sexual offences against a number of youths in relation to whom he had enjoyed a position of responsibility and trust. The Crown Prosecution Service sought to have Andrews' acquittals of indecent assault and rape quashed, and a retrial granted on the charge of rape, on the basis of this new evidence."

That would seem to be a situation that would be covered by the legislation that we are discussing.

The Scottish Law Commission report goes on:

"The Court of Appeal held that the relevant question was, rather, whether the evidence was admissible to prove that, contrary to his evidence at trial, Andrews had raped SN:

'What matters is that the evidence should be admissible to prove that, in accordance with her complaint, and contrary to his evidence at trial, the respondent raped her. It would be contrary to the purpose of the legislation for new, compelling, highly probative, admissible evidence that he did so to be disregarded. [Otherwise] we should end up with a new concept, that is two compartments, both containing evidence admissible in law to prove guilt if deployed at a second trial, but with evidence from one compartment excluded from consideration when addressing the question whether the acquittal should be quashed and a second trial ordered. In the context of the legislative purpose such compartmentalisation would be remarkable.'"

The point of that statement is that the court quite clearly saw that it had to look at the new evidence in the context of all the preceding evidence in order to decide about its compellability. That makes sense.

The Scottish Law Commission report continues:

"The Court of Appeal also quoted with approval the DPP's statement that 'he would only proceed in cases where, as a result of new evidence, a conviction is highly probable and any acquittal by a jury at a subsequent trial would be perverse,' characterising this guidance as 'entirely appropriate, and consistent with the relevant legislative framework.'"

Again, I think that we are talking about legislation that is fundamentally consistent with what is proposed for Scotland. Therefore, I am concerned by this last paragraph:

"In the course of allowing the application, the Court said:

'[The CPS] rightly contend that the new evidence shows that SN's allegation was not an isolated complaint against a man of good character who spent his adult life blamelessly working with children, but as now appears, one in a series of independent allegations forming a pattern of abuse of those in his care or for whom he was in a position of authority and trust. Even if not "direct" this provides strong supporting evidence for SN which was not available at trial, and the evidence that the respondent was guilty of the rape of SN is now significantly more powerful than it was. In our judgment, if it had been available at the first trial, or if it were now to be deployed at a second trial, the high probability is that the respondent would have been or will be convicted.'" On reading that, I struggle to agree with the English Court of Appeal, as I think that it points to a failure to distinguish between what might be likely and what is compelling. In this case, I do not see that that evidence of consistent abuse of children is of itself evidence of rape. I have to say that the Court of Appeal's statement worries me. If it were a Scottish case, I would not be speaking in those terms. I do not mind criticising the English courts, given that I am speaking from the Scottish jurisdiction. I did not mind telling the House of Lords that it got it wrong in the Johnston case on pleural plaques.

My point is that when we draw up our legislation, we need to be extremely careful to ensure that we do not finish up in the position in which a court can say, "Well, it seems reasonably likely, so we'll have another go." In my view, there needs to be a compelling case for holding another trial. It needs to be clearly written into whatever legislation we put together that it must be more than just reasonably likely that the new evidence would affect the verdict in a second trial. That evidence needs to speak to the root of the crime, and in the case that I have cited it did not.

Photo of Margo MacDonald Margo MacDonald Independent

Would that test of whether there was a compelling case for holding another trial apply to all types of crime?

Photo of Nigel Don Nigel Don Scottish National Party

It seems to me that, in principle, it should. I think that we are talking about a matter of principle, so there should be no shades of grey. It seems to me that the new evidence should be compelling—there need not be 100 per cent certainty, because we do not live in a world in which that is terribly likely—and I find the case that I have referred to worrying.

I want to pick up the issue that Hugh Henry had a dialogue with Robert Brown about. It seems to me that any pre-trial assessment by the Court of Appeal or the High Court of whether a second trial would be acceptable will get into the public domain, one way or another. Sure, it could be reported with sensitivity, but it is inevitable that if there is to be a second trial those who will be engaged in it will know fine well that that is the case, so it will follow that a second trial has been allowed by the High Court in an assessment. We cannot duck that. Not publicising the pre-trial assessment will not avoid people knowing that there will be a second trial. We will simply have to live with that.

Photo of Cathie Craigie Cathie Craigie Labour 4:08, 24 March 2010

For 800 years, Scotland has lived under the judicial rule of double jeopardy. It is a rule that is embedded in the legal traditions that we live by, and have lived by for generations, but I believe that the time for change has arrived. We all have an opportunity to right what I believe is a fundamental wrong in our justice system.

It is clear that there is no overall consensus on the need for change, but in my opinion, and in the opinion of many, the crux of the matter lies in the injustice that is perceived by victims and the public when new evidence, or even a confession, comes to light. Although we hear and read about those cases, as others have said, we do not have the power to do anything about them or to right those wrongs.

Scotland needs to reform its practice in line with what has been done in England and Wales. Few members could argue logically that if overwhelming and compelling evidence is discovered about someone who has been found innocent in a court of law, they should not come before a court again. Currently, if someone is found guilty and new evidence comes to light that they believe proves their innocence, they can appeal against their conviction. In a just society, why should we not have the same right to justice in the public interest?

With advances in DNA evidence and other innovative technologies, it is getting increasingly common across the world for incriminating evidence of crimes that were committed in bygone years to come to light, the evidence and the technologies not having been available at the time when the crime was committed. Here in Scotland, under the double jeopardy rule, there are killers who have literally got away with murder.

Support for abolishing double jeopardy is not universal. Like other members, I thank the Scottish Law Commission for its work and I welcome the consultation process that is now under way. It is important to get the views of people on the front line, of the general public and of victims who believe that justice has not been done.

For me, the justification for refreshing this ancient rule is compelling. The historic case of Billy Dunlop assists in demonstrating the importance of the proposed change. Dunlop murdered 22-year-old Julie Hogg in 1989, and faced trial, twice, in 1991. On both occasions the jury failed to reach a verdict, and the killer was never brought to justice. As a result of the change in the law in England and Wales—where it applies retrospectively—Billy Dunlop was charged with and convicted of the murder in 2006, having confessed his guilt to the authorities back in 1999. Unfortunately, the outcome would have been very different had such a development occurred here in Scotland. I quote Paul McBride QC, an advocate specialising in criminal defence and regulatory crime. He says:

"I could stand trial for murder and be acquitted. Yet I could tell the world that I was guilty, and ... would not be retried. I think that most right-thinking people would agree that that is wrong."

I might not agree with Mr McBride's political analysis, but I very much agree with his analysis on this subject.

It is not often that I find myself agreeing with the justice secretary, but I welcome his comments this afternoon and his commitment to consider introducing legislation on the matter in its own right in the autumn. It would be a mistake to make amendments to the Criminal Justice and Licensing (Scotland) Bill. The legislation in this area needs to change, and that needs to have the weight of public opinion and scrutiny behind it.

To those who are worried about the proposals I say this. One of the words that is inscribed on our mace is justice, which is a key element in our society. Sadly, however, some criminals have avoided justice as a result of double jeopardy. A change would not mean open season on all those who have been acquitted of a crime, but it might from time to time provide victims and their families with the justice that they deserve, if new, relevant information and evidence come to light. I urge all members to support the motion in the name of the Cabinet Secretary for Justice.

Photo of Ian McKee Ian McKee Scottish National Party 4:13, 24 March 2010

Nothing is more infuriating than seeing someone who is obviously guilty escaping justice through some quirk of the law. A person who is found not guilty on a technicality can hold a metaphorical get-out-of-jail card for evermore, because it is against the law to be tried twice for the same offence. The injustice is even more offensive if the crime involved is particularly repulsive.

However, a change of law made as a knee-jerk response to public anger over such issues risks creating more problems than it solves. That is why I applaud the Government's decision to make measured progress on the matter, embarking first on a widespread consultative process.

The first question that must be answered is whether we need a double jeopardy rule at all. In its recent report, the Scottish Law Commission, having considered the matter, came to the conclusion that the rule still serves a useful purpose, and that the general presumption against double jeopardy should remain. The commission gives several reasons for that, the most important of which, perhaps, is closure. That includes closure for wider society, for those who are most affected by the crime and for the accused.

However, although closure is important, it is not invariably the most important issue for most of us.

Surely justice has a part to play, too. For example, if new techniques, such as DNA analysis, are developed that point conclusively to a person's guilt, it seems perverse to disallow the practical use of such evidence in proving guilt simply because a not guilty verdict arrived when those techniques were unavailable. If that continues to be the law, even after the Parliament has legislated on the issue, we had better have some good reasons to account for it.

I am running ahead of myself—the court first needs to decide whether double jeopardy arises at all in a particular case. As the Scottish Law Commission points out,

"the whole basis of the plea of res judicata rests upon a proper decision reached in accordance with the relevant rules".

If a verdict of not guilty is reached after a jury, or even a judge, has been suborned, it can be argued that the accused was never in jeopardy during the first trial and so a second trial is perfectly in accordance with the law as it stands today.

The criminal law committee of the Law Society of Scotland considers that a second trial in such circumstances would be fair only if it could be proven that the accused person had been involved in the perversion of justice. I hesitate to take on such an august body, but I think that it is wrong. First, it must be extremely difficult to prove such a link, although the circumstantial evidence must often be strong—who else would have such a vested interest in an acquittal? More important, however, if the perversion of justice were such that it rendered a guilty verdict impossible, the accused would not have been in jeopardy, and it matters not whether he or she was aware of the fact at the time. In such circumstances, double jeopardy would be impossible and a second trial should be considered appropriate.

It is more difficult if perjury results in a not guilty verdict. Deliberate perjury by the accused probably merits, in principle, not just a trial for the perjury but a retrial for the original offence. It is not always easy to assess whether what appears to be perjury is in fact simply a failure of recollection. It is even more difficult if a witness has allegedly lied under oath, and efforts to revisit a trial in which the verdict might well have been brought in by a jury whose deliberations were secret could create many more problems than they solved.

Moving on to situations in which a person was in jeopardy in the first trial, is it appropriate to prosecute someone who has already been found not guilty of a charge when, subsequently, it is found that the alleged offence was merely an aspect of a more serious crime, of which further evidence exists? To take the opposite extreme, what about a case in which fresh evidence is produced that shows that a person has been convicted unfairly of a serious offence, but which also shows that he or she is almost certainly likely to have been guilty of a lesser offence?

Photo of Margo MacDonald Margo MacDonald Independent

In that instance, if the person were not prosecuted in the original trial for the real crime, would it not be a simple thing to prosecute them when evidence became available?

Photo of Ian McKee Ian McKee Scottish National Party

I believe that, in law, the robustness of the original evidence, and whether the same evidence is used again, is what counts. I am perfectly happy to discuss the matter in more detail with the member afterwards.

Photo of Ian McKee Ian McKee Scottish National Party

That was a threat, not a promise.

The original sentence should certainly be quashed, but should the person then be charged with the lesser offence, or does the principle of avoiding double jeopardy prohibit that?

In the Galloway v Somerville case, it was held that a man found in possession of a hare could first be convicted of poaching, but that it was then lawful to charge him later with possession of game without a licence. Should it be possible to have a second or even third or fourth prosecution for offences that flow from a single unlawful act—a sort of dripping roast for lawyers?

I chose those few examples to illustrate the legal minefield that we enter when we consider double jeopardy. I reiterate what I said at the beginning of my speech: there should be no change in the law without the widest consultation and deepest reflection.

Photo of Robert Brown Robert Brown Liberal Democrat 4:18, 24 March 2010

This has been a focused and worthwhile debate on a tricky but significant question. The Scottish Law Commission's work has made a principled approach possible and the Scottish Government is right to follow it up with a consultation.

I intend to ask the chamber to allow me to withdraw the Liberal Democrat amendment, as some of the discussion around the subject has been useful in elaborating exactly where we should be going. There has been a wee bit of a mix-up, if I can put it that way, concerning the terms of the motion, which talks about things that the Scottish Law Commission recommended before going on to talk about the consultation and so on. In doing so, the motion supports certain things that are yet to be decided in the consultation. We lodged our amendment in that context. I think that the motion has given the wrong slant to the matter—perhaps it had the same effect on the Conservative amendment, which was withdrawn earlier.

The list of crimes is proving to be quite a tricky area. In talking about murder and rape, we had it in mind that that would include homicides of a murder type, if you like, and other offences that are in fact rape, although they are defined differently. Stewart Maxwell is right to say that there is a question about how far the proposal should go beyond such crimes. However, I had considerable concerns when he listed the offences that he thought should be included. For example, it would be quite problematic to treat sexual offences involving 13 to 16-year-olds as cases that there can be a second go at if new evidence comes to light. The issues relate not just to accused persons, but to vulnerable witnesses who would be required to give further evidence in a second trial. That is a serious proposition if a child, a young person or a person with mental health difficulties is involved. That consideration should lie behind our thinking on the matter.

Photo of Stewart Maxwell Stewart Maxwell Scottish National Party

I accept absolutely the points that Robert Brown makes about the age of witnesses and the effect of a second trial on them. We would have to be cautious in proceeding in that way. However, the law in England and Wales includes cases involving children under 13 who have been raped or involved in incest, which can be prosecuted under double jeopardy, but excludes cases involving children aged between 13 and 16—those who are still under the age of consent. I find the logic of that position difficult to understand. Surely older children are more robust and more able to take part in such proceedings.

Photo of Robert Brown Robert Brown Liberal Democrat

It depends on what we are talking about. If we are talking about the rape of 13 to 16-year-olds or cases in which force is used, that is one thing; if we are talking about a consensual situation—albeit one that is illegal because those involved are under 16—that is something else. That is the issue. I do not want to get sidetracked, but it is an important issue for us to get right. Like other members, I am attracted to the formulation that Bill Aitken set out, under which very serious crimes would be certified as such by the Lord Advocate. Anything else would land us in complicated definitional arguments.

I will say a word about retrospectivity. As Ross Finnie said, it appears that the concept is being applied in a rather different way from that which we would normally expect. We should not make new laws retrospective. However, we are dealing with the procedures for proving old laws, if you like, and old cases, which is not quite the same thing. The Scottish Law Commission has said that, when there is an admission of guilt, applying retrospectivity would not be incompatible with the ECHR. The Law Commission states:

"Allowing for a retrial in such circumstances does not criminalise conduct which was not criminal when committed."

That is important, and hits the nail on the head. In fairness, the Law Commission took a slightly different position on new evidence. However, frankly, I cannot see the difference in principle between the Law Commission's statement in relation to an admission of guilt, and the position that would arise on the production of new evidence.

A number of other issues arise regarding safeguards. Without question, Liberal Democrats take the view that we must go cautiously on that matter. It will be interesting to see what comes out of the consultation, as the question of safeguards is very important. First, there is general agreement across the chamber that it should be possible for the High Court, as the independent judicial arm of the state, to judge that, in a limited number of cases, retrial is merited. Mention has been made of the six applications that were made in England over five years, of which only three were granted. Secondly, evidence must be genuinely new and substantial, not something that the prosecution knew about, or should have known about, originally. I very much agree with Hugh Henry's comments on that. I am concerned that, in the consultation paper, the Scottish Government—admittedly, not having made its final decision on the matter—thinks that the rule against double jeopardy might be overruled to put right prosecution failings. To my mind, that is an extremely slippery slope, and the Government would be well advised to be very cautious before going down it.

The High Court must also be satisfied that the new evidence would have produced a different result. We have to be extremely careful about phraseology. It might not be altogether helpful, as the Law Commission report seems to phrase it, for Crown counsel to be able to tell the jury that the High Court thought that, on the new evidence that had been presented, the accused ought to have been convicted. Finally, the High Court must be satisfied in the round and in all circumstances that it is in the interests of justice to allow a retrial, and any such move must involve in-depth consideration by judges.

We must begin with the long-recognised principle that, in general, people who have been acquitted in a trial should be able to regard the decision as final. Indeed, that principle was put in place for good reason and applies in other jurisdictions for the same reasons. The need for a person to protect and defend their innocence a second or third time is a harassment that our law normally frowns on and forbids. In this country, the state is not entitled to try people again and again until it gets the result that it wants. Much of that view is rooted in the great landmark constitutional decisions of the past that established protections against arbitrary actions by the Crown or Government. It will be interesting to see where the consultation goes with regard to the narrowly construed exceptions that we have been discussing, but I accept and share the chamber's view that urgent action should be taken to implement the consultation's outcome in a way that is compatible with Scotland's traditions.

Photo of David McLetchie David McLetchie Conservative 4:26, 24 March 2010

This has been an interesting debate on an important principle of law that Stewart Maxwell in his speech described as one of the long-standing pillars of our justice system. It is a principle and pillar requiring us to balance the relationship between the individual and the state, the presumption of innocence and the need for justice not only to be done but to be seen to be done in the interests of victims, accused persons and society as a whole.

Some might say that such complexities justify the slow progress that has been made in considering the issue. The Scottish Law Commission was asked to examine the matter in November 2007 and, two years later, produced a report. Now, four months into the Scottish Government's consideration of the report, we have a consultation exercise. It has to be said that that pace of progress is in marked contrast to the situation that pertained in England, where, as we have heard, the law on double jeopardy was reformed by the Criminal Justice Act 2003.

They say that in life everything comes to those who wait and that in politics everyone ends up agreeing with the Tories. It is true, however, that some of us have to wait longer than others to have their good judgment vindicated. I remind members that it is more than three years since the last parliamentary debate on this topic, which was on a Conservative motion.

Photo of Fergus Ewing Fergus Ewing Scottish National Party

Given that Mr McLetchie is making so much of this, can he explain why action was not taken in the 18 years that the Conservatives were in government under Mrs Thatcher and others?

Photo of David McLetchie David McLetchie Conservative

I regret to say that under Mrs Thatcher and others we had not made the astonishing advances in forensic technology and evidence gathering that have since been made. I can assure Mr Ewing that, had we done so, Mrs Thatcher would have been the very first to act on this matter.

Mr Ewing was a little too early with his intervention, because I was about to praise him and the Scottish National Party. In that debate three years ago, the Conservatives with the SNP's support called for a reform of the double jeopardy law, but the initiative was frustrated by the votes and inaction of the then governing parties: Labour and the Liberal Democrats. How times and tunes have changed. In her capacity as Deputy Minister for Justice, Johann Lamont was in no hurry to do anything in that debate beyond lodging an amendment that said that the issue was all terribly complex and on-going and then, of course, puffed up the Scottish Executive's alleged achievements.

Our former colleague Gordon Jackson, one of Scotland's leading QCs and exponents of the criminal law, was against any change in principle and, if I may say so, spoke very eloquently on the matter. He reminded us that hard cases make bad laws, a point that is always worth bearing in mind by any legislator. Others in that auld and little-lamented Lib-Lab alliance were equally critical.

In fairness to Mr MacAskill, he was characteristically robust in support of the Conservative motion and it was he and his Government that set the ball rolling with the Scottish Law Commission, for which they are to be commended. In the spirit of generosity for which we Conservatives are renowned, let me say that, as far as we are concerned, the Labour latecomers such as Richard Baker are also welcome.

However, if Labour has changed its tune and Richard Baker has accomplished yet another U-turn with scarcely a blush in the chamber today, the Liberal Democrats have changed their tune in even more spectacular fashion. Back in 2007, their then justice spokesman, Jeremy Purvis, told us that the state should not have a right to prosecute in perpetuity, that we could not separate principle from practicalities and that he could not support a change in the law. Mike Pringle, the author of today's Liberal Democrat amendment, which the Liberal Democrats want to withdraw, spoke in even more dramatic terms three years ago, conjuring up an image of a Kafkaesque trial situation in which a defendant is lost inside a machine, with no control over his fate.

Photo of David McLetchie David McLetchie Conservative

Here is another Kafka—come on.

Photo of Richard Baker Richard Baker Labour

Mr McLetchie is, unhappily, sounding a note of discord in what has been a consensual debate until now. Surely it is right for parties, including the Liberal Democrats and ourselves, to reflect on cases that have come up recently, including the World's End case. For some years now, Labour has made the case for change; indeed, we made the change down south. Double jeopardy has been in place for the past 800 years. For a large part of that time, there was a Tory Government and it did nothing about the issue.

Photo of David McLetchie David McLetchie Conservative

Of course, the reality of the situation is that Mr Baker's colleagues down south had the presence of mind and the common sense to enact a change in the law in 2003, but, despite that being pointed out to him and his colleagues for the best part of four years, they chose to do nothing about it. Nothing happened until Mr MacAskill referred the matter to the Scottish Law Commission in November 2007. I refer Mr Baker to the Official Report of the debate three years ago, where he will see exactly what Labour's then Deputy Minister for Justice said and what the party did, which was precisely nothing.

The presumption of innocence is, indeed, a fundamental principle of our criminal law. It is clearly unacceptable for the state to have a general right to keep trying an accused person over and over again until it finds a jury that is willing to convict. The state should prosecute a citizen only if it has a reasonable belief, on the basis of the evidence gathered, that a conviction can be secured by establishing guilt beyond reasonable doubt. The Scottish Law Commission has set out at considerable length in its report the permutations of circumstances in which a second trial is competent at present and would be competent under the proposals that it has put forward for discussion.

I believe that it is right that the new evidence exception should apply only when that evidence is both genuinely new and compelling. If I may say so, I thought that Nigel Don made some very interesting observations on that point in his speech. Furthermore, I agree that the exception should apply only to the most serious cases, because we cannot keep trying and retrying relatively trivial matters, as doing so would clog up our courts. Having said that, there is legitimate scope for debate about the extent to which the definition of a serious case should be extended beyond murder and rape. Stewart Maxwell made some very good points on that score. I also think that it is right that a new trial should be possible when an acquittal arises from interference with the administration of justice to a material extent, for example, when there is jury tampering, intimidation of witnesses or corruption—the cabinet secretary gave all those examples in his opening speech. Finally, I think that a new trial should be permissible when there has been a post-acquittal confession by the accused person.

Photo of Margo MacDonald Margo MacDonald Independent

Will the effect of the crime on the victim be the demarcation line between what is serious and what is trivial, or will there be some other measurement?

Photo of David McLetchie David McLetchie Conservative

The serious nature of a crime is determined by a range of factors, not just the effect on the victim. In some instances, there might be a victimless crime. The example of major drug cases was discussed earlier. In such cases, we do not know who the specific victims are, but we certainly know that there are victims in society of that code of behaviour.

Overall, as Richard Baker informed us in his speech, we should recognise that if the proposed change to our law comes into effect, it will give rise to only a tiny number of new cases—the figure of six applications in England in the past five years was mentioned, and I think that only three of those led to retrials. Let us acknowledge that in Scotland such retrials will be very rare, and rightly so. However, the proposed change is in the public interest and would bring our law into line with the advances in forensic science to which I referred earlier in my response to Mr Ewing's intervention. It would also prevent those who deserve to be retried from cocking a snook at our justice system to the outrage of the law abiding. I support the motion.

Photo of James Kelly James Kelly Labour 4:36, 24 March 2010

I welcome the opportunity to close this afternoon's debate on behalf of the Labour Party and to follow on from Mr McLetchie. I note that the Tory deputy spokesman on justice, John Lamont, is not here—perhaps he is out making an early start on his election campaign. No doubt he will be somewhat deflated after the excellent budget statement from Alistair Darling this afternoon.

We have had a quality debate in which lots of excellent speeches and relevant points were made, and I am sure that those points will be included in the consultation. In examining exceptions in double jeopardy—a law that was established 800 years ago—we must look at current thinking. Down in England and Wales, the driver for change was the Stephen Lawrence murder case, and further to that changes were made to the law to introduce exceptions to the double jeopardy principle. In Scotland, as many have mentioned, the issue was given focus by the collapse of the World's End murder trial. I well remember the Lord Advocate coming to the Parliament to make a statement on the matter and there is no doubt that it was a sombre and serious occasion. I point out to David McLetchie that, following on from that, Paul Martin called for action to look at exceptions to the double jeopardy principle. In politics it is correct that as events develop, political thinking develops, which is what happened in that case.

As others have mentioned, DNA science has developed considerably, particularly in the past 10 to 15 years. As a result, in numerous trials, not just in Scotland but in England and Wales, people have been brought to justice for crimes that they committed a good time ago and that has given some reassurance to the victims' families. As Stewart Maxwell mentioned, the international experience has moved on and there have been crucial developments in both Australia and New Zealand.

It is right that all such factors should be taken into account, and we have now seen the Scottish Law Commission's report. Like others, I thank the commission for its work in developing such an important matter. The Scottish Law Commission concluded that there are cases in which exceptions to double jeopardy should be investigated—where, for example, the trial is tainted by a jury being rigged, or where there has been intimidation. It is clear that such instances would create a lot of concern about the verdict, so the commission's conclusion was proper.

If a new confession is made, it is right that the result of the original trial is looked at again.

Photo of Robert Brown Robert Brown Liberal Democrat

Does Mr Kelly nevertheless accept that people can confess on the police record to all sorts of things that they have not done? Surely we must be cautious about even that fairly obvious situation.

Photo of James Kelly James Kelly Labour

Although a confession has been made, it must still be examined in a trial. At that point, the person being tried is still innocent in the eyes of the law.

The Government has accepted most of the Scottish Law Commission's conclusions. I agree with Richard Baker that it is unfortunate that the Law Commission did not take a position on new evidence, which is one of the drivers of the consultation. There has been a lot of discussion of that important issue; it needs proper consideration and therefore it is only correct that it goes out to consultation. If the measure is taken forward, we will need to establish whether the new evidence is relevant and whether there should, as a result, be a new trial, and any such process must involve the High Court's due consideration.

Important arguments have been made in favour of considering new evidence. For example, there have been important developments not only in the use of DNA evidence but in other scientific fields including, as the cabinet secretary pointed out, image processing. There is a strong moral case for considering fundamental new evidence that might change the result of the original trial, but we need to bear in mind the important legal principle of consistency.

It is useful to consider examples from England and Wales, where changes to the law that were set out in the Criminal Justice Act 2003 were implemented in 2005. As has been said, very few such cases have been taken forward. One particular case, however, involved the conviction of Mario Celaire—as the result of a new confession—for the murder of Cassandra McDermott. I am quite sure that that outcome reassured Ms McDermott's family, but we should also remember that, after he had been cleared originally, Mr Celaire carried out a very serious hammer attack on another woman. Such circumstances strengthen the case for there to be exceptions to double jeopardy, because the outcome can not only reassure victims but ensure that the people who are actually guilty of crimes are placed in prison where they belong, instead of being let out to commit other violent acts.

There has been a lot of discussion about the crimes to which the new evidence rule should apply. I welcome the fact that the Liberal Democrats intend to withdraw their amendment, which mentions only murder and rape. In England and Wales, the list of crimes to which the rule applies is extensive and provides a reasonable starting point for the consultation; nevertheless, it should not represent the conclusion. The good thing about the consultation is that it allows us to consider the list of offences in England and Wales and take on board other comments and evidence to produce a list that is relevant to Scots law.

I strongly support the retrospective application of exceptions. In that respect, Cathie Craigie highlighted an excellent example in the case of Billy Dunlop, who was retried and convicted of a crime that had been committed in 1989. Again, that gave some reassurance to the family of the victim of the crime.

We must be diligent in the drawing up of any new evidence and ensure that it is properly constructed, can be assessed correctly and is relevant to a new trial.

In one of her many interventions, Margo MacDonald made some points about publicity. The consultation deals with publicity, and examines the possibility of giving powers to the court to ban press reporting. That idea needs to be considered seriously. As has been said throughout the debate, such a measure is likely to apply in only very few cases.

Double jeopardy is an important issue, and this has been a good debate, in which a lot of excellent contributions have been made. I look forward to the conclusion of the consultation in the autumn and to the Government taking action to strengthen the law on double jeopardy and to shift it in support of victims and their families.

Photo of Fergus Ewing Fergus Ewing Scottish National Party 4:45, 24 March 2010

This has been an extremely useful debate, with excellent contributions from members of all parties, and from the independent member, Margo MacDonald, who has kept many other speakers on their intellectual toes, so to speak.

When the Cabinet Secretary for Justice began the debate, he emphasised that a rule against double jeopardy is an essential feature of a fair society. The state should never have unfettered freedom repeatedly to prosecute individuals for the same act. It was useful to start the debate by canvassing that principle. That was the approach that the Scottish Law Commission took, as we would expect, when it analysed the issue in its report. The commission started off by asking whether we need double jeopardy at all. Is there a case for scrapping the rule altogether? We feel that there is not such a case, although it is always sensible to challenge one's own views and beliefs, is it not?

The Scottish Law Commission set out three reasons why, in its view, it is essential to have a rule against double jeopardy. First, it is a fundamental recognition of the finality of criminal proceedings. We do not want a criminal justice system in which the same matters are tried again and again. We want a criminal justice system in which our citizens have confidence, and where we get it right in the vast majority of cases. We are all confident that that is indeed the case, given the excellent quality of those involved in the system in every way.

Secondly, the rule has an important function in expressing the limits of the power of the state vis-à-vis the private citizen. The plight of a citizen facing a criminal trial is one of the citizen against the state. It is public law. It is a matter of the state deciding that an individual's conduct has led to their facing a criminal trial. For the individual, there can be few more serious experiences in life than facing the power of the state under those circumstances. That is why we have legal aid, rules of procedure and the independence of the Government from the judicial system.

Thirdly, the rule against double jeopardy affords protection from the anxiety and humiliation that repeated trials would undoubtedly cause accused persons.

I think that it was Cathie Craigie who alluded to the fact that we have had a rule against double jeopardy for around eight centuries. That is indeed the position that the Scottish Law Commission canvasses. It states that the rule was recognised by judges by the 13th or 14th century. Cathie Craigie is absolutely correct about that.

If I may, I will quote Baron Hume. I do not often get the opportunity, but it is a great pleasure to do so; in my humble opinion, he is not quoted frequently enough in the Parliament. If we fast- forward to the 18th century, we note that Baron Hume stated the following:

"The prime benefit of a sentence of absolvitor is, that the pannel"— that is, the accused—

"can never again be challenged or called in question, or made to thole an assize (as our phrase for it is) on the matter or charge that has been tried. The ground of which maxim lies in this obvious and humane consideration, that a person is substantially punished, in being twice reduced to so anxious and humiliating a condition, and standing twice in jeopardy of his life, fame or person."

In Baron Hume's day, people would literally be standing in the dock in jeopardy of their life. I must say, Baron Hume excepted, there are one or two judges who were around at that time before whom I would not have been too keen to stand in the dock, charged on any matter.

Photo of Margo MacDonald Margo MacDonald Independent

He's nane the waur o a guid hangin.

Photo of Fergus Ewing Fergus Ewing Scottish National Party

Indeed. I might deserve such a fate in the opinion of some members.

The principle of double jeopardy is well established, but it is in need of reform and the Scottish Law Commission has clearly recognised the need for clarity on its operation. Although there are some exceedingly difficult questions on double jeopardy that we have explored during the debate, there are others that we have not explored in detail, such as those that arise when one charge is introduced and a slightly different charge is introduced later. There are some complex issues of principle and practice that we need to get right. Therefore, I very much welcome the tone of the debate and the speeches by members of all parties, which I believe recognise that we must proceed with care and study the issues extremely carefully.

Double jeopardy is an important safeguard, but it is in need of reform. We are exceedingly grateful to the Scottish Law Commission for its work, which has enabled us to prepare the consultation paper, in which there are 10 questions and which restates the 36 recommendations from the SLC's report.

I now seek to reply, as best I can in the time that I have, to some of the points that members have made. I think that it was Margo MacDonald who raised the general issue of whether exceptions to the double jeopardy rule because of a confession, a tainted trial or other new evidence should be restricted to the most serious crimes—murder, rape and so on. The SLC does not suggest restricting any exception for post-acquittal confessions or tainted trials to a list of specific offences. The reason for that was set out by Dr Ian McKee. If a trial is tainted, that means that the convicted person, if you like, nobbled a juror—in other words, bribed them to deliver a certain verdict. In such cases, there has not been single jeopardy, because there has not been a proper trial. The trial has been perverted, so there has been no double jeopardy. It is fair to acknowledge that.

Similarly—I do not think that this point has been advanced in the debate—when someone who has been tried and acquitted subsequently confesses, clearly and without duress, to having committed the crime of which they were acquitted, that person waives the protection of the double jeopardy principle. I do not think that it can be said that a person who freely confesses their guilt faces a double jeopardy scenario—they simply face the consequences of having acknowledged their crime. That is an underlying distinction that I wanted to make to Margo MacDonald.

Photo of Margo MacDonald Margo MacDonald Independent

I have a short query. There are cases that are time barred for various reasons. Is there any obstacle in the form of time barring of evidence?

Photo of Fergus Ewing Fergus Ewing Scottish National Party

I am no expert in the law of time bar, but my understanding is that, by and large, it is a concept that is more applicable in civil law than it is in criminal law. Where it applies, it applies to the time limits for bringing prosecutions, whereby accused people who are in custody must be brought to trial within a certain period; I believe that the 110-day rule has been amended. I do not believe that there is a law of proscription in cases of murder, for example, so I do not believe that time barring is a problem but, plainly, I am not expert in the field. We will look at that issue.

There has been much discussion of cases in which new evidence arises. Initially, that discussion focused on the Liberal Democrat amendment, which says that new evidence exceptions to the double jeopardy rule should be restricted to cases of murder and rape. I warmly welcome the indication by the Liberal Democrats that they intend to withdraw their amendment, a decision that they were perhaps influenced to take by what has been said in the debate. That is a welcome development in a Parliament in which we want to pursue matters by way of reasoned argument, instead of always sticking to the party line, which I have not always done, as members may know—although that was in former days, of course.

It might help members if I refer to part 5 of the Scottish Law Commission's report, in which the commission noted:

"One respondent suggested that there should be no limit upon which offences might be retried, the matter being one which could safely be left to the discretion of the Lord Advocate."

Bill Aitken might have made such a suggestion today.

The commission went on to ask the question that we have been addressing today: how do we define "most serious cases"? The commission noted:

"On one view, the only principled point at which to draw a line is between murder ... and other offences."

The Government is not sure that that way of approaching the question will bring the right answer. The debate has demonstrated that there is a view that we need to look beyond murder and rape to many other very serious offences. Of course, the crime of genocide, by definition, involves murder. Stewart Maxwell mentioned a number of serious offences, including sexual offences against children, which I think that society acknowledges to be extremely serious. If we were to take steps to have a modern system of double jeopardy law, so that we could bring people to trial when new evidence emerged, such as DNA evidence, it would surely be perverse to exclude from the operation of the relaxed rule sexual offences, in relation to which it is most likely that DNA evidence could demonstrate guilt in a way that was not possible before scientific advances were made. Such new evidence might be able to deliver justice for victims of serious sexual offences.

Nigel Don made a thoughtful speech. We will consider his arguments carefully. The SLC acknowledged that it is difficult to form a test, as we acknowledged in paragraph 7.6 of our consultation paper. We would welcome further debate on the matter.

Many members talked about the risks of a second trial being prejudiced by publicity. That is a reasonable point, which we address in chapter 8 of the consultation paper. The SLC recommended that the High Court should have wide discretion to decide whether a retrial would be in the interests of justice. It also recommended that the courts

"should have power to make an order limiting publication of reports".

I do not think that members mentioned that recommendation. Such a power could be used to provide the safeguards that many members thought might be appropriate.

Neither I nor the cabinet secretary has mentioned individual cases, as some members have done. It is not that we do not want to do that, but doing so would not be prudent or consistent with our ministerial roles.

There was consensus in the debate, which Mr McLetchie did his best to disturb when he brought a whiff of political partisanship to the debate by castigating just about everyone except the Conservatives for not addressing the issue before now. I hope that he does not mind my having the temerity to point out that the Conservatives had a small opportunity to address the matter between 1979 and 1997, with the help of such previously disguised liberals as Nicholas Fairbairn, Michael Forsyth or perhaps Albert McQuarrie, through a private member's bill. The Conservatives did not address the matter.

However, the Scottish Government looks forward and not back, as members know. I am delighted that in arguing that we need a new rule on double jeopardy, in the interests of justice, we have the support of members of all parties. On that consensual—as always—note, I am happy to close.