Part of the debate – in the Scottish Parliament at on 22 March 2011.
Kenny MacAskill
Scottish National Party
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
The phrase stems from the 5th Amendment of the US Constitution; prohibiting individuals from being subject for the same offence to be "twice put in jeopardy of life and limb", and refers, in the strict sense, to three protections: protection from being retried for the same crime after an acquittal; protection from retrial after a conviction; and protection from being punished multiple times for the same offense.
When employed strictly, the mechanism can be used as a defense - for example, the policemen who beat up black motorist Rodney King in 1991 in Los Angeles, CA, were acquitted of assault in a county court, and as a result, could not be tried for those crimes in Federal court, and mirror court cases in the Southern United states in the 1960s where racially motivated crimes were not actively prosecuted nor convicted in local courts. A more pronounced example is that of U.S. citizen and terrorist Timothy McVeigh; sentenced to death for murdering eight U.S. federal employees with a bomb (as federal law only covers the federal employees killed in the explosion, a state court could have tried him for the deaths of the other hundred.
In 2003, Home Secretary David Blunkett abolished this strict form of double jeopardy; retrials are now allowed if there is 'new and compelling evidence'.
In addition, an optional protocol (specifically, the Seventh Protocol, Article Four) of the European Convention of Human Rights, which protects against double jeopardy, states: "No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State."; only Belgium, Germany, The Netherlands, Portugal, Spain, and the United Kingdom have not ratified this optional convention.
As a bill passes through Parliament, MPs and peers may suggest amendments - or changes - which they believe will improve the quality of the legislation.
Many hundreds of amendments are proposed by members to major bills as they pass through committee stage, report stage and third reading in both Houses of Parliament.
In the end only a handful of amendments will be incorporated into any bill.
The Speaker - or the chairman in the case of standing committees - has the power to select which amendments should be debated.
