Double Jeopardy (Scotland) Bill

– in the Scottish Parliament at on 22 March 2011.

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Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

The next item of business is a debate on motion S3M-8156, in the name of Kenny MacAskill, on the Double Jeopardy (Scotland) Bill.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

I am pleased that, at the end of the parliamentary session, we will complete what is an important reform. The Double Jeopardy (Scotland) Bill, the final piece of legislation that the Parliament will consider in the current session, can be traced back to a debate at the end of the previous session. On 22 February 2007, the Scottish National Party, together with the Conservatives, made the case for reform of double jeopardy. In a thought-provoking debate, a number of weighty points were made and there was general agreement that the issue necessitated careful study. The parties comprising the then Administration argued against making a commitment to reform, but I am pleased that they have now joined us in a widespread consensus that change is needed. I welcome the support for the bill in the Justice Committee and today in the chamber.

Later that year, as the Cabinet Secretary for Justice, I asked the Scottish Law Commission to consider possible reforms in four complex areas of criminal procedure. That was a substantial piece of work. Each issue that was referred to the commission covered difficult technical questions of law and required the balancing of the many and often competing concerns of fairness to victims, fairness to the accused and fairness to society. The proposed reforms prompted searching questions about the type of criminal justice system that we want for Scotland. Such a substantial review could never have been undertaken lightly, and it was not. It required an enormous amount of careful fact finding, consultation and analysis.

The Scottish Law Commission responded to my challenge with its customary diligence. The Government and Parliament have seized and built on the commission’s work and have made great progress in a remarkably short period. On Monday, the first part of the project—the reform establishing a Crown right of appeal—will become law. I think that all members welcome that, as the current situation is an anachronism. The measure will allow prosecutors to challenge decisions by judges to end a trial before the case can go to a jury. It will permit contested decisions that there is no case to answer to be challenged—an innovation that I am sure all members welcome. Again, I record my appreciation for the unanimity that the Parliament showed when that measure was passed.

We now have before us the fruits of the second part of the reference, in the form of the Double Jeopardy (Scotland) Bill. The commission is conducting a consultation on the rest of the project, to consider the use of evidence of similar conduct and the admissibility of evidence on previous convictions. That will be a matter for a future Parliament to consider. It is one of three proposals that the Lord Advocate raised some time ago, on the Crown right of appeal, double jeopardy and evidence of similar fact. When we conclude the bill, we will have delivered two out of those three proposals.

The commission’s current work is an even more complex task. In essence, it focuses on the extent to which the accused’s past conduct should be brought to the attention of the jury. The use of evidence of similar fact involves the difficult balance of considering the value of certain information as evidence, but weighing up whether its usage would be unfairly prejudicial. We expect the commission’s final report on that to be published by the end of the year. I have no doubt that the Parliament in the next session, whatever the Administration is, will wish to assess that report. On behalf of my Administration, I confirm that we have a desire to implement the recommendations in that report.

In reforming double jeopardy, we have built on the commission’s work through a public consultation and by considering the Justice Committee’s thorough evidence taking and analysis. We have taken on board most of the commission’s recommendations, but we have gone further by including a general exception for new evidence; by applying the exception to a wider range of serious cases; and by extending it to historical crimes. I am convinced that those changes are right as a matter of public policy and I am grateful that members have supported them. They were discussed and debated in the Justice Committee. I understand where the commission came from, but I believe that the position that has been adopted is correct and takes on board wider views in our society.

The bill achieves a careful balance, as it must. It weighs up the rights of the accused and the broader rights of victims in communities. It upholds and enshrines the ancient principle of double jeopardy and restates it comprehensively and in modern terms. That is appropriate because it is only in a few exceptions that cases will arise. As much as I agree with what was said earlier about the importance and benefit of our common law, it is important that from time to time we enshrine certain things in statute. It is appropriate that we enshrine in statute the accused’s right, in the normal course of events, not to face a subsequent trial.

The legislation provides for some strictly limited exceptions in which there is a clear and compelling case for a new trial. In short, it will—as it should—permit a trial tainted by threats or corruption to be re-run. It will allow a new trial when evidence, such as an admission or DNA material, emerges, demanding a new look at the case—the public expect no less. It will also clarify the rules that apply when a victim dies after a trial for assault.

I am pleased that the reforms in the bill have near-unanimous support. The Justice Committee has made a significant and thorough contribution to the development of the bill. My amendments at stage 2 responded positively to many points aired at stage 1. The scrutiny and the resulting amendments have improved the bill.

As Mr Kelly and Mr Aitken commented, many amendments are lengthy but relatively simple. Unfortunately, we require to state the changes at length.

Together, we have raised the test for assessing admissions; we have restricted new evidence retrials to cases previously decided by the High Court; and, today, we have improved the disclosure regime that applies to the bill.

I look forward to hearing members’ views on the bill and thank them for the manner in which they have worked with us in committee and elsewhere.

I move,

That the Parliament agrees that the Double Jeopardy (Scotland) Bill be passed.

Photo of Richard Baker Richard Baker Labour

As we enter the final hours before the dissolution of Parliament, I have no doubt that justice issues will be some of the most hotly debated in the weeks ahead. It is an area in which there are significant disagreements between parties. Where we cannot agree, we should be clear about that and debate the issues fully.

It is good that on the last day of this session of Parliament, our final justice debate—indeed, our final debate—should be an opportunity to reflect on an important area of agreement, which is the decision to reform our outdated laws on double jeopardy. Considering that we are talking about a change to 800 years of Scots law, I admit to having some reservations about the fact that the debate is only a short one. However, I concede that the stage 2 consideration of the bill was notable for its high degree of consensus, to which the cabinet secretary referred. The Labour Party, too, was keen that the law should be changed before the end of this parliamentary session. We believe that victims and families who have not seen justice served should not face further uncertainty or wait longer for a change in the law. We welcome our being able to pass this law today.

The change that is represented by the bill maintains the correct balance between the rights of an accused and those of a victim of crime. The bill reconfirms the principle of double jeopardy in statute, while ensuring that in future there can be new proceedings against the accused in exceptional cases in which there are clear reasons for believing that justice was not done in the original trial.

Exceptional cases and cases involving serious crimes are the right parameters. On that basis, we supported the approach of the Scottish Government at stage 2 that the changes should be restricted to High Court decisions. Notwithstanding the concerns that were expressed by Robert Brown at stage 2 about the issue of admissions, we appreciate that the Government’s intention is extremely clear: that in this area, too, the application of the new provisions should be with regard to serious cases.

We should not expect a high number of cases to be affected by the bill, but those that are affected will be serious. We all know that there are people in this country who, with good reason, believe that they have not received justice for great wrongs committed against them and their loved ones. People who are guilty of serious crimes have evaded justice in Scotland. If we can properly rectify injustices in which killers have walked free from court or people who are guilty of serious offences have bragged of their culpability after acquittal, we should do so. That is why we were persuaded of the case for the legislation to have retrospective effect. Prosecutors now have access to new technologies such as DNA evidence that can show proof of criminality even in cases that are many years old. That offers hope in cases where victims and families are still waiting to see justice done for the crimes committed against them and where the Crown has the appropriate evidence to seek new proceedings. I am sure that in cases where the Crown believes that it is appropriate to do so, it will work diligently with the families and the victims involved.

The experience of the reforms that were made to the law in England and Wales in 2003 can give us confidence that the changes that we propose are as proportionate as they are important. The reforms to the law on double jeopardy in England and Wales have not created a situation in which accused persons are routinely retried for the same offence. Although those laws were reformed in 2003, it was not until last year that Mark Weston became the first person to face a second murder trial in England, following the discovery of new forensic evidence. He was convicted of the murder of Vikki Thompson in 1995. The provisions have been used sparingly, but where they have been used, serious injustices have been rectified and they have doubtless been of huge importance to all those affected.

This is our last justice debate in this session of Parliament. None of us can be certain of our return in the next session, although I notice that the cabinet secretary is standing on a list as well as for a constituency, which I would say is a sensible precaution on his part. However, we know that Bill Aitken is leaving us. We owe Bill a great debt of gratitude for his contribution to this Parliament, particularly as convener of the Justice Committee, and I wish him very well for the future.

Not through his own doing but because of the spectacular unpopularity of the Deputy Prime Minister, we might not be joined by Robert Brown in the next session. Robert and I have not always seen eye to eye, but we should all recognise his hugely important and informed contribution to our consideration of justice policy in this Parliament. I for one—I am sure that I speak for our whole group—would very much like to thank him for that and to wish him well should he not be here next session. [Applause.]

Of course, Deputy Presiding Officer, in the next session we shall also miss you and your now-famous catchphrase, “The member’s time is up. Please turn off their microphone.” I am moving speedily to a conclusion.

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

I was just going to say that you can carry on, Mr Baker.

Photo of Richard Baker Richard Baker Labour

Oh, really? Such largesse, Deputy Presiding Officer—you are obviously demob happy. We wish you well. I for one very much valued your convenership of the Enterprise and Culture Committee in the previous session of Parliament—it was a very important contribution, as was your contribution in the chamber.

I am pleased to join Bill Aitken, Robert Brown and ministers in supporting the bill. In the next session we want to see more support for victims, so I am pleased that we can conclude this session by passing a bill that makes an important but correct change to Scots law, which is very much in the interests of getting justice for victims of crime in our country.

Photo of John Lamont John Lamont Conservative

Like others, I am very pleased to speak in this stage 3 debate on the Double Jeopardy (Scotland) Bill. It has taken us some time to get to this point, but I am pleased that at decision time—the last decision time of this session—we will vote to enact one of the Scottish Conservatives’ key manifesto pledges from 2007.

It is important that we record our gratitude to the Scottish Law Commission and the Justice Committee for their hard work in bringing us to where we are today on this subject. The Scottish Government also deserves credit for taking the first step in 2007 by inviting the Scottish Law Commission to review the law in this area.

There have been some disagreements during the passage of the bill, but the process has generally been marked by consensus and mature debate from all sides in the chamber.

At this point, I pay tribute to my colleague Bill Aitken; as Richard Baker pointed out, Bill will be standing down from Parliament and will be making his final contribution to Parliament later this morning. Bill Aitken has been a loyal servant to the people of the city of Glasgow for many decades and, more recently, he has been a formidable convener of the Justice Committee. On a personal level, I will certainly miss his advice and constant support and I am sure that everybody wishes him well for his retirement. [Applause.]

At stage 1, several members detailed the history of the double jeopardy principle. They highlighted the fact that it is not a technical term in Scots law but a principle or rule that has never been formally codified. The principle is good, as the finality of criminal verdicts allows the individuals who are involved in a trial to get on with their lives in the knowledge that the matter has been resolved. It also provides the more general benefit of retaining public confidence in the court system. The double jeopardy rule limits the state’s reach over individuals’ lives and protects individuals from the stress of repeat trials.

However, as I said in the stage 1 debate, every good principle ought to have exceptions. Many people consider it to be common sense that, when compelling new evidence of guilt arises that was not available at the time of the original trial, the Crown should be able to bring a new trial. However, as such a step is serious, it is right that it should occur only in exceptional circumstances and for the most serious crimes; otherwise, we risk eroding the integrity of our courts and public confidence in the wider justice system.

The principles in the bill reflect the interests of not just the accused but the justice system and wider society. As we have seen, it is important for decisions of courts to be upheld and seen to be conclusive. However, it is clear that exceptional circumstances could arise, and our justice system must be capable of dealing with such exceptions.

We believe that the principle of double jeopardy is right and should continue. However, it should be reformed and restated in Scots law to allow exceptions when new evidence in the form of an admission of guilt or other new and compelling evidence emerges. When we allow exceptions to the principle, we must put safeguards in place. We are satisfied that the bill strikes the right balance between ensuring that we have a fair and effective justice system and protecting the rights of victims and of individuals who are accused of crime. I am pleased that the Government introduced the bill, which the Scottish Conservatives will support at decision time.

Photo of Robert Brown Robert Brown Liberal Democrat

I am glad to open for the Liberal Democrats in the last justice debate, the last stage 3 debate and the last substantive debate of the parliamentary session. As with many justice debates, the bill raises substantial issues around the interface between personal liberty, public safety and public confidence in the law. The rule against double jeopardy is an important part of that debate.

It is right that, in general, the state should have one go at prosecuting a person who is accused of crime. We thank Patrick Layden QC, the Scottish Law Commission’s lead commissioner on the double jeopardy project, and his colleagues for their work. He put the position well when he said:

“The rule against double jeopardy has protected the citizens of Scotland against repeated prosecutions for hundreds of years. Essentially, it prevents the state from running the criminal prosecution system on a ‘Heads we win; tails, let’s play again until you lose’ basis.”

Against that background, the commission rightly recommended that the rule should be kept and should be put in legislation.

Repeated prosecutions until the state thinks that it has got the result right are oppressive. In Scots law, if a person has tholed their assize, they cannot be prosecuted again. “Tholing the assize” is the phrase in this context, as against “nobile officium” in the previous debate, about whose pronunciation we have had interesting discussions.

It is right that the rare cases in which a jury or a magistrate is nobbled and in which proceedings have been tainted because they have been undermined by illegality should be regarded as null and able to be started again. No great exercise of legal reasoning is needed to support that proposition. What has perhaps been more difficult to deal with is new evidence or admissions—perhaps even bragging—by the accused. In the case of a serious and appalling crime, there would—rightly—be public outrage if major new evidence, such as a new witness, the discovery of a body or compelling DNA evidence, could not be used and if a potentially dangerous criminal was allowed to walk the streets.

I disagreed with the wide approach to new evidence and particularly to admissions evidence. The cabinet secretary was right to restrict the new-evidence exception to cases that were taken on indictment in the High Court, but it would have been desirable to deal with admissions in the same way, as I suggested at stage 2. However, the bill lays down considerable safeguards to give the High Court significant reasons for determining whether a case should proceed in appropriate instances. It is important to narrate those reasons, which are that

“the case against the person is strengthened substantially by the new evidence”; that

“the new evidence was not available, and could not with the exercise of reasonable diligence have been made available” at the original trial; that

“it is highly likely that a reasonable jury properly instructed would have convicted the person”; and that

“it is in the interests of justice to” proceed.

Those are fairly stringent tests by anybody’s account; they give us the confidence that the new legislation will operate in exceptional and unusual circumstances, which will nevertheless allow prosecutions in the significant cases that I have spoken about.

The final issue of controversy is perhaps that of retrospectivity. I am personally satisfied that creating a new procedure is a different matter from creating a new offence. It would be scandalous if new evidence that emerged in the week before the bill came into effect could not be made use of in this regard.

I thank Justice Committee members, committee clerks, ministers and the Scottish Law Commission for their work on the bill. It has been a great pleasure to serve on the Justice Committee, which—dare I say it—is one of the highest-quality committees of the Parliament. As others have said, that owes a lot to Bill Aitken’s convenership of the committee over the last period. As I have mentioned previously, Bill is a colleague whose career has gone in tandem with mine in terms of our council and Parliament commitments. Bill Aitken will be greatly missed; I am sorry that the new session of the Parliament will not have the benefit of his advice and support. As others have said, that may be my fate, too. If so, it will happen in a slightly less voluntary way. Support from the clerks and Scottish Parliament information centre researchers, and members’ intelligent and sensitive input have all been important aspects of the consideration of the bill.

Finally, I thank the ministers. Like their predecessors in the previous Government, members of the ministerial team have taken their responsibilities seriously; they have applied their minds to the detail of this important matter. Obviously, we did not always agree, but in large measure we did. I am grateful to the ministers for their liberal and reasonable approach. I wish them all success in the next session of Parliament.

Against that background, I have great pleasure in indicating Liberal Democrat support for the principles and detailed provisions of the Double Jeopardy (Scotland) Bill.

Photo of Stewart Maxwell Stewart Maxwell Scottish National Party

I thank in particular the Justice Committee clerks for their assistance, advice and support on the bill and over the past four years. I have been a committee member for the past two years of this session of the Parliament. The clerks made a great team; they served the Justice Committee very well.

I am absolutely delighted to be taking part in this final justice debate in this session of the Parliament. As other members have said, this is the final debate of the parliamentary session. The debate is an important one, dealing as it does with an ancient tenet of Scots law. I am slightly disappointed—I had hoped to be the first member to mention tholed assize, but Robert Brown got in first. There you go. I will stick to double jeopardy, given that he used that other phrase.

Before I turn to the meat of the issue, I join other members in commenting on Bill Aitken’s convenership of the Justice Committee. Bill Aitken has been a top-class servant of the Parliament over the past 12 years and a top-class servant of the Justice Committee over the past four years. We wish him well in his retirement. I will miss in particular our jousting on BBC Radio Scotland of a morning or evening. Bill and I suffer from the same problem of living relatively close to the BBC headquarters—indeed, it may be no problem, but a useful thing. Our proximity to the BBC meant that our parties often called upon us to be available to put forward our respective points of view. I wish Bill very well in whatever he chooses to do in future.

One thing that has been slightly overlooked in the debate on the bill is that, although the provisions will allow trials to take place for a second time, we are putting a very important rule and safeguard of Scots law—double jeopardy—on a statutory footing for the first time. It is critically important that we all understand that. Double jeopardy does, of course, give a solid line of defence to those who have been tried and acquitted. As other members have said, there are some underlying fundamental reasons why we have had to make this change in the law.

I have not always agreed with Paul McBride QC, but he got it right when he said:

“If one thinks of rape cases involving children, rape cases involving adults, horrific murder cases, and new evidence of a compelling nature comes to light that wasn’t available at the trial that demonstrates beyond any question the person is guilty, is it right as a society to say that persons should go free?

For me, that sums up why we are here today to make this change. It cannot be right that society knows that a person is guilty but allows that person to go free. For that reason, it is absolutely correct that we make the change.

However, we must be exceptionally careful when making such a change. Many have argued that it may be a step too far. Given that there is consensus across the chamber for the change, we must accompany it with rigorous safeguards to ensure that people are rightly protected. Those safeguards are in place in the bill at stage 3. As Professor Christopher Gane said to the Justice Committee in evidence, people should not be found “guilty by attrition”—a phrase that sums up some of the risks in making such changes. However, I am sure that that will not happen in this case.

The strength of our committee system emerged strongly during consideration of the bill. In the bill as introduced, the offences to which it applied were listed in schedule 1. The Justice Committee disagreed with that approach and thought that there were better, more logical ways of deciding which cases should be dealt with. I am glad that the Government agreed with that recommendation and that the cases to which the bill will apply are now defined as cases that were originally tried in the High Court. That is a much more logical way of treating the issue.

The argument about retrospectivity always seemed slightly odd to me. Is the legislation retrospective? If new evidence comes forward today, tomorrow, next month or next year, surely it is new evidence, even if it relates to old cases. In my view, it would be unjust to ignore that evidence and, effectively, to say that because a case took place a number of years ago—or, as some members have said, literally a week before the legislation came into effect—the legislation should not apply. I have never accepted that argument. The argument about retrospective application was a slight red herring in our discussions, but it led to a detailed debate about the issue, in which we came to the right conclusion.

My concluding remarks concern not the technical aspects of the bill but the reasons why we should be here today. There are five such reasons. First, other members have spoken about the scientific and technical advances that have been made, which may allow DNA or other compelling evidence to come forward. Secondly, there is a moral principle, which we often take for granted, to what we do. It is undeniable that justice should be brought to bear on those who are guilty of serious crimes.

The third reason is public perception and confidence. Surely our justice system comes close to being undermined if public confidence is lost because people walk free, although we have the evidence to prove that they are clearly guilty, or, as members such as Richard Baker have said, because people boast about their previous crimes and having got away with them. The bill is an important measure to address that issue.

The fourth reason is consistency. It is and has always been right that people should have a right of appeal against a sentence, if new evidence comes to light. It seems fair and consistent that, if new evidence comes to light on the other side, we should be able to deal with that issue, too.

The final reason that I want to mention is the most important one of all. The bill provides justice for victims and victims’ families. Irrespective of all the debates that we have had, that is the fundamental reason why this is the right change to make to Scots law. It gives me great pleasure to support the bill today. The bill will make an important change. It will seldom be used, but when it is, it will be very important to the families, to the victims and for the credibility of our legal system.

Photo of Cathie Craigie Cathie Craigie Labour

Presiding Officer, thank you for allowing me the privilege of speaking in the last debate in this session. I thank the people of Cumbernauld and Kilsyth for sending me here as their representative in the Parliament. I hope that, with their good will, it will not be the last time that I speak in this great Scottish Parliament.

As other members have done this morning, I place on record my thanks to the clerks to and fellow members of the Justice Committee. Like other members, I have found it a very enjoyable committee to be on. Party politics have been left at the door—in most cases—and we have put the interests of justice at the heart of everything that we have done.

I also thank the ministerial team, their civil servants and all the individuals and organisations that engaged with the committee and the Parliament in providing written and oral evidence and in co-operating with us as we scrutinised the bill. It has arrived here, in the very last hours of the parliamentary session, as a very important piece of legislation.

There is broad consensus on the proposals. Without question, the time is right and change is due. That view is supported by the vast majority of Scots. Throughout the process, I have emphasised the need for reform and I have indicated many problems with the current system—problems that go beyond the World’s End killings that we have discussed so often throughout the process.

My view, and that which is taken by many colleagues, is that the double jeopardy rule is deeply unfair to victims of crime. In previous debates, I have given the example of Billy Dunlop. His was a shocking example of years of justice not being seen to be done, and his case clearly illustrates why we need the new legislation—it is why opinions have hardened and changed over recent years, in my opinion. I make no apologies for mentioning Dunlop again today. He murdered 22-year-old Julie Hogg in 1989, and he faced trial twice. On both occasions, the jury failed to reach a verdict and the killer was never brought to justice. As a result of the changes in 2003 to the legal system in England and Wales, Dunlop was charged and convicted for the murder in 2006—and that after confessing his guilt to the authorities back in 1999.

Changing the system in England and Wales allowed for Dunlop to be punished for the crime that he had committed. For years, however, the authorities knew that he was the killer but were working with their hands tied behind their backs. I ask colleagues to imagine being a family member of a murder victim in those circumstances. As well as having to endure the endless grief of such a cruel and horrendous loss, families know that the killer cannot be prosecuted because of the outdated double jeopardy law. People must have been asking why the law was not standing up for the victims of crime. The status quo here in Scotland is simply wrong, and it is right that new legislation has reached the chamber—legislation that will stand up for victims and their families in my constituency of Cumbernauld and Kilsyth and throughout Scotland.

Times have changed, and our justice system must change to take account of that. The prosecution is able to establish evidence using modern techniques, and our justice system must be allowed to adapt to that. I hope that members throughout the chamber will support the bill today, and I urge them to do so. The changes that it will bring will not impinge on the civil liberties of the people of Scotland; they will help victims and families to see justice done.

Before I sit down, I, too, wish to pay tribute to some of our colleagues who are leaving us today. Bill Butler, as the convener of the Justice Committee for all but three or four meetings—

Photo of Cathie Craigie Cathie Craigie Labour

What did I say?

Members: Bill Butler.

Oh, goodness. That’s Bill Butler got a promotion, although maybe he does not want it.

As convener, Bill Aitken has always dealt fairly with the committee’s proceedings. He is a good parliamentarian, and we have all been able to look up to him. I am sure that Bill will find plenty to do with his time outside the Parliament, probably supporting that north Glasgow football team, Partick Thistle; then again, he might want to come through and visit here more often than he watches the football. I wish him well in whatever he chooses to do.

I pay tribute to Robert Brown. I do not know whether he will be back in the next session of the Parliament. During our time in the Parliament, he and I always seemed to end up on the same committees. I do not know whether he has interests or hobbies outside the Parliament, but I imagine him spending his free time brushing up on the law and learning even more about even more things.

I also pay tribute to you, Deputy Presiding Officer, as you step down from your parliamentary duties. Like Bill Aitken, I am sure that you will be out cheering on your local football team, in the east end of Glasgow—I think it is the Shettleston juniors that you support. I wish you all the very best.

I am grateful for the opportunity to pay tribute to some great parliamentarians who have certainly made a contribution to the Scottish Parliament and to the lives of the people of Scotland.

Photo of Nigel Don Nigel Don Scottish National Party

I am in my characteristic position as the final back-bench speaker—a sort of tail gunner—so I must repeat one or two things, although that is not something that I do lightly.

I thank my colleagues on the Justice Committee for their hard work during the past four years. It has been a hard-working, largely consensual and always respectful committee. I was a newcomer to the Parliament four years ago and it has been a joy to work on a committee that regarded its business as important and did not get stuck into the somewhat unconstructive party politics that are perhaps more common in other committees.

It would be wrong not to thank Bill Aitken for his exemplary convenership of the committee during the past four years. I agree with members’ remarks about Robert Brown. Robert Brown seems to think that it is unlikely that he will come back; I find it rather presumptuous of the rest of us to think that we are coming back—an interesting straw poll is going on in the Parliament, but let us not worry about that.

I also thank SPICe and the clerks, who did a fabulous job. I agree with members’ comments about the ministers, who have been seriously constructive on all our work—I do not say that just because I am a Scottish National Party back bencher. It has been a pleasure to work with them. We should also pay tribute to the civil servants, because although we have two hard-working ministers I do not think that they do everything that we see, so they probably have a pretty good team behind them, to whom I am grateful.

Stewart Maxwell talked about the principles of the bill and why it is important. I am grateful to him and I have no desire to repeat what he said. The bill that I hope we will pass this afternoon is steeped in principle. The principles are two-fold. First, the law against double jeopardy is ancient and correct and has now been codified, which I am sure was the right thing to do. Secondly, we have established that provision for exceptions should be clearly set down in statute. At the very least, we have made the law of the land clear.

I will run through a few points and establish the principles behind them. First, in relation to cases in which a person has been found not guilty of assault but the victim subsequently dies, we have set down the old principle that a second trial can take place because there is a new offence. It seems to me that that is right, although I note in passing that there is little evidence that the principle is much used. However, there is also little evidence that it is a bad thing, so we have stuck with it.

The second general principle is that it should be clearly set down that the new-evidence exception applies only in serious cases. I reiterate my thanks to ministers for adopting the policy that I concluded a long time ago should be adopted, that is, that the approach should be restricted to High Court cases.

I do not disagree with Stewart Maxwell often. I very much agree with what he said about the principles, but my view of retrospectivity is completely different from his. The ancient principle was that once a court had found someone not guilty their status before the law had changed. By passing the law we are changing the status of people who have been found not guilty on a High Court charge to one that allows for their recall, when previously they could not have been recalled. That is entirely the right thing to do because, as others have said, if new and compelling evidence comes to light—and the ways in which evidence can be garnered have now changed, of course—it is important that we are able to prosecute the acquitted person. We have changed the principle of retrospectivity, but it is the right thing to do.

Other members mentioned admissions. Such cases would come back to the court only if there was clear and compelling evidence and a new trial was in the interests of justice. I do not expect that there will be many such cases, but it would be a mistake to leave them out. Equally, we have dealt with tainted trials.

Members can see that I brought along the large file of papers on the bill. I did not do that to make any particular point, as colleagues are well aware of the size of file that we finish up with on such issues. Subject to some rather long amendments, which were almost as long as the bill, we have finished up with a short codification of the general principles on double jeopardy. We have got it about right. I am grateful and look forward to the opportunity to pass the bill later today.

Photo of Mike Pringle Mike Pringle Liberal Democrat

As my colleague Robert Brown has already indicated, the Liberal Democrats will support the Government’s Double Jeopardy (Scotland) Bill. We are glad to do so.

I associate myself with the comments that others made about Bill Aitken, who was a fine convener of the Justice Committee. I am not sure what he will do when he moves on, but he will clearly have a lot more time to do the things that he wants to do in his private life and to consider other things. I congratulate him on the great job that he did on the Justice Committee.

I also thank Robert Brown, who is one of the best Liberal Democrats in the Parliament. He will be sorely missed by our group if he is not re-elected. I thank him for all the help that he has given me over the past four years in the justice portfolio. As a lawyer, he comes with a slightly different perspective from mine, but his comments and help over the past four years have been welcome.

I also congratulate the rest of the Justice Committee, which has—along with the minister—guided the bill through its various stages and scrutinised it extremely closely. Today is the result of that scrutiny. Between them, the committee and the minister have produced an extremely solid bill.

I also congratulate the committee clerks on the excellent job that they have done, not only during the bill’s progress but over the past four years. We all know that, without our committee clerks, we would struggle seriously, particularly when trying to produce stage 1 reports.

The ministerial team that has guided justice issues over the past four years has also done a good job. Liberal Democrats have perhaps not always agreed with the ministers and perhaps do not agree with them on one or two matters, but justice is without doubt one of the biggest portfolios and to tackle it for four years is a huge job. I wonder whether, when the ministers are re-elected—I am confident that they both will be—they will look for a different portfolio.

Double jeopardy is a procedural defence that forbids the defendant being tried again on the same or similar charges following a legitimate acquittal or conviction. The rule against double jeopardy is a fundamental principle of Scots law that provides essential protection by preventing the state from procedurally prosecuting an individual twice for the same act.

Double jeopardy has always been extremely complex and often sensitive, so we welcome the bill and the clarification that it provides by setting out in statute the rule against it as part of a modern criminal justice system. Perhaps, when the rule was introduced, the criminal justice system was not quite so modern, but we now have a modern system.

We support the setting out of exceptions to the rule against double jeopardy—for example, when the original trial was tainted by jury tampering or when the acquitted individual has since confessed to the crime.

Perhaps the biggest debate on the bill has been whether a new-evidence exception should be applied retrospectively. That was the most complex issue that the Justice Committee had to deal with. Stewart Maxwell, in his final speech in this session, made a very good case for why that is the right way to go. Our view is that it would be arbitrary and unsatisfactory if acquittals that occurred before a certain date were final while those that occurred after it could be looked at again in the event of new evidence emerging. As my colleague Robert Brown said, in this day and age, given the advances in science in relation to dead bodies, it is only sensible that if solid new evidence, particularly DNA evidence, is found for an existing case, even if the case is old—it could be a considerable number of years old—the case should be brought back in front of the court so that justice is served.

Stewart Maxwell again put his finger on the main issue: victims. Victims will find the bill to be the best way forward. In the cases that we are discussing, a victim would surely want to be satisfied that the perpetrator of the crime, even if it was some years ago, might finally be brought to justice. That would give the victim or victims, or the relations of the victims—perhaps children or grandchildren—closure. I agree with Richard Baker on the point about victims. Retrospectivity is an important aspect of the bill and it is the right way forward for victims.

There has been very little change to the bill between stage 2 and now. The Government lodged a considerable number of stage 2 amendments, which were all agreed by the committee without division. The Liberal Democrats also welcome the amendments that the cabinet secretary lodged for today. As James Kelly and others said, that is perhaps quite unusual at stage 3, but Kenny MacAskill, the cabinet secretary, realised that the amendments were necessary to finalise the bill and make it a really good, solid piece of legislation.

I am pleased that the Liberal Democrats are firmly behind the bill and will support it at the final decision time of this session.

Photo of Bill Aitken Bill Aitken Conservative

It is appropriate that the final debate in this session should deal with an important legal principle. The principle of the rule against double jeopardy has been enshrined in Scots law down the centuries. It would be oppressive if we lived in a society in which the Crown or the prosecution service had carte blanche to prosecute time after time. No one in the Parliament would support that, but it is understandable that there have been objections from legal purists and scholars that what we are doing is perhaps not appropriate. Much as I respect them, I dismiss those objections. How could we, as politicians, explain to the public that people who walk free can remain free after they have admitted committing serious crimes or if their acquittals are found to have been tainted as a result of jury nobbling or coercion? We could not explain that away and it is therefore perfectly correct that the Government and the Parliament seek to change the law.

It is important that we relate what we are doing today to our contemporary circumstances. We are seeking to underline the fact that new evidence can now be brought forward that could only have been dreamed about 20 or even 10 years ago. Forensic science has improved and DNA technology now enables prosecutors and the police to deal with matters that could not have been considered some years ago.

We also seek to remedy the problem of tainted acquittals, many of which result from serious and organised crime. Members had better believe that those who engage in such crime are serious and organised—they will coerce and threaten jurors and we cannot have that.

At the same time, we have built into the bill the appropriate protections to ensure fairness. The Government has accepted the view that I put forward, which was shared by others, that the general new-evidence exception should be restricted to cases dealt with in the High Court. That will deal with homicides, serious sexual assaults and other offences for which a high-tariff sentence could be expected. The public have the right to expect that such cases will be prosecuted.

There is also a provision whereby a decision to allow a reprosecution can be made only after the Lord Advocate has applied to the Scottish court of criminal appeal and a bench of three judges has decided that that is the appropriate route to take. That is surely a protection in itself. I do not imagine that there will be a rush of such cases. If the experience in England is replicated, not only will there not be a plethora of such cases, there will be very few of them indeed, and that is as it should be.

On more minor matters, the Crown has the option of prosecuting on a charge of attempting to pervert the course of justice, and that is the way forward.

Some members have said some very kind words about me during the debate, and I appreciate that very much indeed. Perhaps uncharacteristically, I propose to say some kind words myself. [Laughter.] First, I thank my staff: the Conservative researcher Erin Boyle; Gillian McPherson, who has done a huge amount of work on the legislation that the Justice Committee has considered over the past two years; and, in particular, my parliamentary secretary, Sandra Robinson, who has not only put up with me for the best part of 12 years but done so cheerfully, efficiently and effectively.

I turn to my political colleagues. Some cynic once said that in politics you do not make many friends, but you certainly increase the number and quality of your enemies. I have not found that to be so. I thank the Presiding Officer for his friendship over the years—for more years than either of us would like to remember. Robert Brown said that our political careers have run in tandem but, of course, he tried to puncture my bike way back in 1976, when he fought to prevent me from being elected in the council by-election, my success in which led on to my work as an MSP.

I have old friends and I have newer friends. When I came to the Parliament, I met Cathie Craigie on the Social Inclusion, Housing and Voluntary Sector Committee. I admired her common sense then and I still admire it. Later on, I got to know others, such as Stewart Maxwell, Mike Pringle, James Kelly and Richard Baker, with whom I have no doubt that I will continue to fight like cat and dog on the various media channels. I thank Margo MacDonald for her friendship over the years—Margo is an incomparable individual—and I thank my group colleagues, particularly John Lamont, who have been tremendously supportive over the past four years.

It has been a privilege to serve in the Parliament, which is a quite different and much better place than it was 12 years ago. It is a matter for regret that some members are unlikely to come back, particularly in the case of Robert Brown, whose outstanding contribution the Parliament will miss a great deal, but to all my colleagues I express my best wishes for the future and thank them for their fellowship and friendship over the past 12 years. [Applause.]

Photo of James Kelly James Kelly Labour

I welcome the opportunity to close the stage 3 debate on the Double Jeopardy (Scotland) Bill on behalf of the Labour Party.

It is difficult to follow such a strong speech from Bill Aitken. It is a measure of his class as a parliamentarian that, in his final speech to the Parliament, he was so dignified and made so many strong points about the bill that we are discussing and about his attitude to his colleagues. Today marks the end for him of 35 years of public service. I pay tribute to him for that public service as a councillor in Glasgow, as a Glasgow MSP and as convener of the Justice Committee. He has always been a very fair person, although we have had our disagreements. As the Justice Committee convener, he was always very supportive of other committee members and we saw that in his contribution today. I have a great regard for that. It is also right that his Conservative party colleagues have turned out in such numbers for his final contribution, which was fitting indeed.

I echo the comments that have been made about Robert Brown. If he does not return after the election, it will be a loss to the Parliament and the Liberal Democrats. He has a great deal of experience in justice matters and the constitution. He was a minister for education and he can speak in the Parliament on a breadth of issues. His contribution has been significant during the past 12 years and I wish him all the best for the future.

I also briefly mention Alasdair Morgan who, as Deputy Presiding Officer, chaired the beginning of the debate and who is standing down. It is significant that I have managed to reach the end of four years in the Parliament and he has never once switched off my microphone.

I pay tribute to Trish Godman, Deputy Presiding Officer, for the way in which she has handled proceedings. She has always been fair and dignified, but perhaps her choice of outfit today shows her true colours. I wish her all the very best as she heads off to the paradise of her retirement.

It is right that this session should close on a debate on the Double Jeopardy (Scotland) Bill, about which there is consensus across the parties. We are passing a serious piece of legislation by, as Stewart Maxwell pointed out, putting the 800-year-old principle of double jeopardy into statute. It is right to build on the work of the Scottish Law Commission and, as Lord Gill said, this is a matter of considerable constitutional significance.

It is also correct that there should be exceptions to the double jeopardy rule and the principal reason for that is that victims and their families must get justice. For someone who has been the victim of a crime or who has lost a family member, there must be no feeling worse than that of not seeing justice done, or seeing someone acquitted when there seems to be evidence against them that could lead to a conviction but which is not allowed by the current law of the land. The main driver for the change must be justice and there is a strong moral argument in favour of that.

We have reached this point in 2011 because tremendous advances in science and DNA technology mean that a lot more information can be made available to retry cases than was the case 20 or 30 years ago. The bill’s principles will also allow the law to be applied consistently and with certainty.

There has been some disquiet in legal circles about the bill’s principles, but the Parliament has considered those issues carefully through all the stages. In its final form, the bill takes the correct position.

On tainted acquittals, it is correct that if someone has acted inappropriately to pervert the course of justice, the case should be brought back to court. The Crown Office and Procurator Fiscal Service got the right balance in its input into the legislation on tainted acquittals.

On admissions, there was some debate in the committee evidence sessions about whether it is right to include admissions when the new information is received pre or post acquittals. The weight of the evidence, including from Victim Support Scotland and the Association of Chief Police Officers in Scotland, supported taking the new evidence regardless of whether it was pre or post acquittal, and for me that is absolutely correct. It gets the balance right.

There has been some discussion about the general new-evidence exception and whether it is correct to apply it. Ultimately, as with so much of this debate, when new evidence comes forward we need to consider the impact on the victims and their family. It is correct to introduce the new-evidence exception.

On the offences to be covered, the Government’s original approach was to draw up a list. I had some sympathy with that approach, but it was discussed at length in the committee at stage 1 and the committee put forward an alternative. That has been fine-tuned by the Government, so that the cases to which the exceptions apply will be those that have been tried at the High Court. On reflection, I think that that is the correct approach, as it captures the correct number of offences and gives the right amount of flexibility to bring appropriate cases forward.

There was quite a bit of discussion at committee about whether another case should be brought when a person is assaulted, someone is acquitted of the assault and the victim subsequently dies. Some concerns were expressed about that but, again, I agree with the approach in the bill. Appropriate safeguards have been built in to apply before a new investigation could be started. Such an investigation would clearly bring different aspects of evidence, and prosecutors would have to look closely at them to decide whether to bring forward a case.

Retrospectivity is one of the key principles of the bill. It is correct that the new evidence exception should be applied retrospectively. Obviously, the advance in DNA technology means that a lot more data can be acquired and brought forward as evidence than previously. We need only to consider cases such as the Dunlop case that Cathie Craigie has quoted in this and previous debates and which lends great weight to the argument that it is correct to apply exceptions retrospectively.

As there appears to be some time, I will highlight some of the contributions that have been made during the debate.

The cabinet secretary looked back to the debate on double jeopardy that took place just before the 2007 election. He was right to highlight that there were a lot of important contributions in that debate and that, in many ways, it set the scene for the bill. I was not a member of the Parliament at the time, but I have read the Official Report of that earlier debate and it is interesting to see how the issue has developed through to this closing debate of 2011.

Robert Brown, Stewart Maxwell and Nigel Don have all spoken about the importance of the Justice Committee and the contributions that it has made. Nigel Don was right to bring out his file—although it might be said that it is one of the lighter files that we have had over the session. Nigel Don is a great supporter of the Justice Committee. He is always telling us how hard we work to examine things diligently. With his display of the folder, he was showing the large amount of work that produced this much smaller bill. That is not in any way a criticism of the bill—legislation worded correctly and succinctly is much easier for legislators and lawmakers to interpret. The Justice Committee, along with civil servants and the ministerial team, has made a tremendous contribution to that.

Cathie Craigie spoke about how opinion has progressed through the years. That is correct. When there is potential for a miscarriage of justice, the internet and 24-hour news mean that there is now a lot more publicity about it, so the concerns of victims are highlighted greatly. That is part of the reason that we have got to the situation that we are in today in passing the bill.

Like others, I pay tribute not just to the Justice Committee, but to the clerking team, which has given us great back-up and support. That has helped tremendously in enabling the committee to look expertly not only at the bill, but at the other aspects of legislation that have been dealt with in the Parliament.

This has been an important debate with which to close the session. There have been serious issues to consider and Scottish Labour firmly supports the passing of the Double Jeopardy (Scotland) Bill at stage 3. It is in the interests of justice, it will instil public confidence and it will ensure the consistent application of the law. With that in mind, we will support the bill at decision time.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

This has been a remarkably consensual debate, as it should have been for two reasons: first, because it has dealt with the final bill that the Parliament will pass in the current parliamentary session; and secondly, because the Parliament has, in the main, united around the subject.

A great many thanks have been given, and I echo each and every one. As I mentioned in my opening speech, the bill started back in 2007. The issue was raised and commented on by John Lamont and Bill Aitken on behalf of the Conservative party, and we have been happy to work with the Conservatives throughout the bill process. Indeed, John Scott, who is not in the chamber, raised the issue before the bill process commenced.

We recognise that we have come into politics to make Scotland a safer place, and nobody from any political party believes that the bill stands to make Scotland a less safe place or that we would have put forward proposals that would undermine our judiciary, our legal system or the rights of victims. We may disagree on some solutions—indeed, there will be hectic debates on the constitution, the economy and justice matters—but the debate has shown the Parliament at its best and has highlighted the genuine respect with which we can come together to make Scotland a safer place.

There have been disagreements, and not simply between members of the Parliament. For example, the Parliament disagreed with the Scottish Law Commission, which I believe was appropriate. That is not to undermine the Law Commission, which undertook a tremendous piece of work—I echo what other members have said about our great debt of gratitude to Patrick Layden and all those who work with the Law Commission. Nevertheless, we were correct in taking on board the view of many and the broader views of Parliament that retrospectivity, for example, had to be addressed. I echo Stewart Maxwell’s comments on that.

I pay tribute not simply to all those who have contributed to today’s debate, but to all those who have worked towards the passing of the bill. I echo the remarks that have been made about Bill Aitken. He has been thorough and has often been challenging, as I would have expected, but equally he has shown good grace and, more often than not, good humour.

The election will decide Robert Brown’s fate, but I pay tribute to his service. He has been diligent both as a minister and as an Opposition spokesperson. The Government has often had the opportunity to work with him when we have shared his views; where we have disagreed, it has been on points of principle. I wish him well, whatever the outcome of the election may be.

As I said, the bill started its long journey back in 2007, when much public interest was raised by the Lord Advocate’s statement in the chamber following the collapse of the World’s End case. Changes have already been made by this Parliament. The Lord Advocate raised three issues that arose as a consequence of that case. The first issue was the Crown’s right of appeal, which the chamber has addressed. It was wrong that the Crown was fettered in a way that meant that matters could go unchallenged and justice could not be done, at times. The Parliament was right to rise to that challenge. The second issue was double jeopardy, which I hope that we will address at decision time today. A matter remains outstanding around the issue of evidence of similar fact or bad character. That will be canvassed in the electoral debates and is being investigated by the Law Commission as we speak. I have no doubt that it will come back to this chamber to be decided on at a later stage. However, I think that that represents progress.

As has been mentioned, the provision that we are dealing with today will be used in only an extremely small number of cases. Richard Baker mentioned the situation south of the border, where the numbers are still capable of being counted on two hands. The provision is not to be used lightly; it is to be used sparingly. As John Lamont and others mentioned, it involves a principle that goes back over centuries in our common law and of which we are all proud. However, as James Kelly and others mentioned, it is important that we make changes to reflect scientific changes and the changes in the media. If scientific changes show that there has been a manifest injustice, that has to be acted on. Equally, if people are found to be bragging in the modern media or it comes to light that they have subverted processes, action must be taken.

All of us in this chamber meet youngsters and others to discuss issues. I am frequently asked what is the hardest part of my job, and I have to say that the hardest part of my job is meeting victims, and the hardest part of that part of my job is meeting victims who have received no justice. The buck stops with me, it stopped with my predecessors and it will stop with my successor, if there is to be one. It will be for them to decide. Doubtless, they will have to do exactly what I have done. However, the fact of the matter is that it is difficult to explain to someone that no action will be taken in a case in which there has been a manifest injustice, even though clear evidence has come to light.

Justice must not only be done, it must be seen to be done. There will be instances where justice will not be done because of a lack of evidence, because witnesses cannot be found or simply because evidence cannot be gathered. However, where evidence is available, we cannot stand on ceremony. Clearly, we must ensure that the law balances the interests of the accused.

The provisions will be used sparingly, but they are complex. As Mr Aitken and others mentioned, they could involve cases going back many years, and there could be issues around whether the evidence has been protected and preserved. At stage 1, Mr Brown asked how we can preserve evidence so that we can ensure that the accused has a fair chance. As I said, we are talking not about ensuring that someone is convicted, but about ensuring that there is an opportunity for a retrial; it will be for a judge and a jury to decide whether the evidence is sufficient to justify a conviction. The issue is about delivering justice. That is what we seek to do.

I welcome the spirit in which the issues have been discussed. The issues are complex, particularly those around retrospectivity, which James Kelly and others mentioned. However, as Bill Aitken said, when we drill down, the issues become relatively simple.

It is not sufficient simply to rest on the common law. Given that we have brought in disclosure in other legislation, it is important to ensure that it applies in relation to double jeopardy, even if only in a limited number of cases. As we all know, the issue of disclosure will be revisited by the Justice Committee and perhaps even by this chamber. It is a matter that causes me some angst and concern, especially when I see the amount of paperwork that hard-working police officers who carry out diligent inquiries into serious offences have to produce and the amount of bureaucracy that they have to deal with. I am not sure precisely what the solution is, because nobody—neither the police, nor the Crown nor anyone else—is seeking to make the process more difficult. However, at some stage, we have to have a review because, clearly, something is not correct.

As members across the chamber have said, no Lord Advocate or High Court judge is ever going to assess the need for a new prosecution lightly. A double jeopardy retrial is designed for cases involving manifest injustice, where evidence that comes to light after the initial trial calls the acquittal at that trial into serious doubt. That is not to prejudge the outcome of any new trial: there will be a trial, and the normal rules and requirements for evidence will stand. Rather, it is about providing the fair trial that should have been: the one that was denied to the victim and to society because the full range of evidence was simply not available at that time, as Mike Pringle mentioned.

The hardest job that any of us has to do is to meet a constituent or a citizen who has not been given justice for their family. To continue the existing law and close the door on all such cases would be to continue a situation that is simply incomprehensible and unacceptable to the public at large, and manifestly wrong.

Once again, I express my thanks to all those who have been involved in the process: the Scottish Law Commission; those who responded to the Government’s consultation; members of the Justice Committee and those who gave evidence to it; and those in the clerking and bill teams who have done extremely diligent work.

Together, we will deliver an important reform for the people of Scotland, which will promote confidence in our justice system and pursue persons who attempt to corrupt the trial process, brag about having escaped justice, undermine or suborn jurors or whatever else. As James Kelly and Bill Aitken mentioned, the tentacles of serious organised crime are dangerous and must be tackled, and those involved cannot be allowed to get away with their guilt.

The reform will allow the fruits of new techniques and advances in science—which are spectacular—to be used to the utmost effect. It will allow justice to be done and to be seen to be done, and will deliver what victims want. That is the obligation on everyone who has the privilege of serving in this chamber.

I once again thank all those members who have been involved—in particular those who will not be returning—for their service, not only in relation to the bill but in relation to the chamber, their constituents and the country.