The next item of business is stage 3 proceedings on the Double Jeopardy (Scotland) Bill. In dealing with amendments, members should have in front of them the papers that are available to them at the back of the chamber.
Section 4—New evidence
Section 4 will permit the retrial of an acquitted person when that person was originally prosecuted in the High Court and new evidence strongly suggests that the case should be retried. Amendment 2 is a minor technical change that is designed to make it clear that that exception covers acquittals secured not only at the original trial, but on appeal.
Amendments 3 and 4 are minor technical amendments inspired by a question that was raised by Robert Brown at stage 2, when he queried whether the reference in section 9 to “justice of the peace” covered stipendiary magistrates. After reflecting on his point, we think that there is a potential gap and that it would be worth making a small modification. The amendment adopts the language used in the Criminal Proceedings etc (Reform) (Scotland) Act 2007, which refers to
“justice of the peace courts” rather than to individual justices of the peace. The change makes it completely clear that stipendiary magistrates are covered by the provision. I am grateful to Mr Brown.
I move amendment 2.
Amendment 2 agreed to.
Section 9—Plea in bar of trial: nullity of previous trial
Amendments 3 and 4 moved—[Kenny MacAskill]—and agreed to.
After section 12
When this Parliament passed the Criminal Justice and Licensing (Scotland) Act 2010, it agreed that the common-law system of disclosure of evidence in criminal proceedings should be placed on a statutory footing. Part 6 of the 2010 act is due to be commenced in June this year.
There will be three stages in a double jeopardy case. The first stage is the original trial and any appeal that follows it. The second stage is the application to the High Court for authority to prosecute again. The third stage, assuming that the High Court consents, is the subsequent trial. The provisions of part 6 of the 2010 act will apply to any trial in a double jeopardy case. No amendments are required to ensure that those rules apply to any such trial, but amendment 1 seeks to ensure that the scheme will also apply to the application procedure.
Amendment 1 is not fundamental to the bill. Disclosure at the application stage would take place under the common law if the amendment is not agreed to. However, we believe that, where possible, it is right to ensure that disclosure in any criminal proceedings is governed by the same framework. The application process is a new procedure and it is important to ensure that fairness to the accused is preserved. Disclosure of evidence is key to ensuring that fairness.
Amendment 1 is lengthy and detailed, but let me be clear about what it does. It does not change the way in which disclosure of evidence is made under the 2010 act; it simply ensures that the principles and procedures in the 2010 act apply in the same way to double jeopardy applications. Despite its length, the amendment does nothing more than that.
Amendment 1 introduces six new sections into part 6 of the 2010 act. New section 140A is an interpretation section. New section 140B introduces a prosecutor’s duty to disclose information that was not previously provided in earlier proceedings. That is particularly important in double jeopardy situations in which, for example, the application is based on the discovery of new evidence. It is important that the accused has sight of that new evidence at the application stage. New section 140C ensures that the prosecutor has a continuing duty to disclose information throughout the application stage. New section 140D provides that the prosecutor must respond to further requests for disclosure of information that are made by the respondent during the application stage. New section 140E allows the respondent to apply to the court to rule on a disputed issue of whether particular information should be disclosed. Finally, if new information becomes available, new section 140F provides further opportunities for the respondent to apply to the court for a review of any previous ruling on disclosure.
Those new sections mirror what part 6 of the 2010 act already provides for in other criminal proceedings. They ensure that disclosure in double jeopardy applications is carried out in a consistent way. The absence of disclosure provisions was discussed in the stage 1 evidence sessions before the Justice Committee. At stage 2, I advised the committee that I would lodge amendments on disclosure. Though confident that the statutory scheme applied to the trial stages in double jeopardy cases, we considered that, in light of the evidence sessions, some amendment to the recently enacted 2010 act would be required to ensure that the statutory scheme also applied to the application stage.
As members can see from this group of amendments, applying disclosure to double jeopardy is a technical and complex matter. The amendments have to fit in accordance with the provisions that are already contained in part 6 of the 2010 act. Furthermore, key principles of the bill were still being debated at stage 2, and the shape of the bill could have changed. For example, issues such as the merging of sections 3 and 4, the introduction of an application stage to section 11 and the type of offences that the new evidence section should cover were all being considered. All those changes could have required a rewrite of any disclosure amendments that were made at stage 2. Accordingly, the Government considered that it would be more appropriate to resolve those matters first, before inserting disclosure amendments at this stage.
Given the detail of part 6 of the 2010 act and the fact that we have introduced a new procedure in the bill, it is not possible to translate disclosure into a single-line amendment. It is important that we follow as closely as possible the disclosure process that is already enacted and do not create a new and unintended approach.
When discussing the bill, members of all parties have recognised that in allowing exceptions to the double jeopardy rule, fairness to the accused must be preserved. Amendment 1 provides an additional safeguard to ensure that that aim is met.
Amendment 5 provides a power to make transitional provisions for the bill, so that the Scottish ministers can ensure a smooth transition from the common-law rules on disclosure that may have applied in a trial some time ago to the new disclosure regime under the 2010 act that will apply where a double jeopardy application is made. The power is restricted to making transitional provision that is necessary or expedient in consequence of the disclosure provisions in the bill only; it cannot be used in relation to any other aspect of the bill.
Amendment 6 makes a series of consequential amendments to the 2010 act, which follow from amendment 1. For example, it ensures that the question of disclosing sensitive information that is relevant to a double jeopardy application can be considered by the court, which provides a safeguard for the fair treatment of the respondent’s position. The consequential amendments are necessary to ensure that the statutory disclosure scheme applies consistently throughout part 6 of the 2010 act to double jeopardy applications in the same way that it does to other criminal proceedings.
I move amendment 1.
I support the Government amendments.
Disclosure is an important aspect of legal proceedings, and it is a fundamental right of the accused and their legal team that they have sight of the evidence against them.
The cabinet secretary was correct to lodge the amendments in order to make the disclosure regime in relation to double jeopardy consistent with other aspects of the criminal law. We would not want a situation in which the common law applied to what will be a very few—indeed, exceptional—serious cases.
Although it is quite unusual for an order-making power to be introduced at stage 3, I recognise that it is a precaution and that it will ensure that the appropriate transitional arrangements can be made in relation to disclosure.
I agree with James Kelly, although perhaps for different reasons. As is generally known, I am a great supporter of the common law, which I believe has served Scotland well over the centuries. However, James Kelly is right to support these amendments today, and we will support them too.
The cabinet secretary has had to lodge lengthy, convoluted and complex amendments, but when one looks at them, one sees that the issue is fairly simple. We are tied into the provisions in the 2010 act, and the issue of disclosure has quite appropriately caused tremendous excitement—to say the least—in Scottish legal circles in recent years.
The fact is that we have to operate under a code of disclosure. Many of us spent a great deal of time on providing input to the code, and it was agreed largely unanimously. Although what is being done today may seem on the face of it unnecessarily complex, it is necessary; otherwise there would be an inconsistency in the approach that is taken in two major pieces of legislation, which would be unfortunate to say the least.
Amendment 1 agreed to.
After section 13
Schedule 2—Consequential amendments
Amendment 6 moved—[Kenny MacAskill]—and agreed to.