Double Jeopardy (Scotland) Bill

Part of the debate – in the Scottish Parliament on 22nd March 2011.

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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.