Double Jeopardy (Scotland) Bill

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

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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.