Double Jeopardy (Scotland) Bill

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

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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.