Double Jeopardy (Scotland) Bill

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

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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.