Double Jeopardy (Scotland) Bill

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

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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.