Hansard

The bill had its genesis in the Scottish Law Commission’s report on double jeopardy, which was published in December 2009. The report concluded that reform was needed in order to clarify and modernise the existing law surrounding double jeopardy. The bill is largely based on that report and seeks to achieve such reform.

The Justice Committee met on four separate occasions to consider the bill and to take oral evidence from witnesses, including the Scottish Law Commission; the Crown Office; the Faculty of Advocates; human rights representatives; the Lord Justice Clerk, Lord Gill; and the Scottish Government.

I thank all those who gave evidence to the committee and congratulate them on the quality of that evidence. I also thank the clerking team for all their work, and in particular Andy Proudfoot, who did a great deal of work on the stage 1 report prior to leaving us temporarily on paternity leave. It was a good piece of work all round.

Section 1 of the bill places the general rule against double jeopardy on a statutory footing. The double jeopardy rule plays a fundamental role in our justice system. The general principle protects the acquitted from the threat of further prosecution for the same offence and from prosecution for a fresh charge based on the same actions. However, as Patrick Layden QC pointed out, there are also “various unclear areas” surrounding the principle. Evidence received by the committee showed wide support for placing the principle on a statutory basis. The committee recognises that and agrees that, in the interests of clarity and affirming its position in law, the rule should be set out in statute.

Under section 2, an acquitted person could face further prosecution if prosecutors can prove that certain offences against the administration of justice were committed and tainted the acquittal. It is clear that there has been public anxiety about that, which Mr Stevenson has articulated. However, the evidence that the committee received on section 2 was mixed. On one hand, the Crown Office felt that the proposals struck an appropriate balance and the Lord Justice Clerk assured the committee that the judges were satisfied with the safeguards in section 2 to deal with tainted acquittals. On the other hand, a number of witnesses raised concerns. For example, the Law Society of Scotland and the Scottish Human Rights Commission questioned whether the proposals should apply to all offences, rather than only more serious offences considered on indictment. They also questioned the possibility of a second prosecution being raised in instances when the acquitted person had no involvement in the tainting of the first trial. The cabinet secretary contested both those concerns, fairly robustly, on the basis that,

“However serious the charge, people should not benefit from attempts to pervert the course of justice and criminal trials.”—[Official Report, Justice Committee, 21 December 2010; c 3993.]

He has repeated that view this morning.

Taking everything into consideration, the committee supports the provisions outlined in section 2 and believes that, in the interests of protecting the integrity of our justice system, they should apply regardless of whether or not the acquitted person was personally involved in the tainting. The committee is also satisfied with the tests that will have to be met and the protection that the balance of probabilities test, in particular, will provide. The committee would like to highlight that the existing law on perverting or attempting to pervert the course of justice will remain an available option. A retrial will therefore not necessarily have to be sought in every instance.

Section 3 makes an exception to the double jeopardy rule by making it possible to reprosecute someone based on admissions that are made or become known after acquittal. There has also been public concern about that, to which the cabinet secretary referred. During evidence taking, concerns were expressed about the extent of offences to which the section will be applicable and the potential for repeated prosecution. Despite those concerns, the committee is satisfied that appropriate checks are in place to ensure that the measure will be used only relatively rarely and only when there is sufficient merit in doing so. It was also questioned whether the tests in section 3(4) are rigorous enough. However, taking all the evidence into consideration, the committee concludes that the provision is workable as it stands.

The committee agrees with Lord Gill that in the preliminary stages it is the judge’s responsibility to assess the credibility of admissions, and reliability—beyond the need for corroboration—is left for the jury to decide later, during the trial. The Scottish Law Commission questioned whether section 3 was necessary at all, given that it could, in theory, fall under the general new-evidence exception in section 4. The committee recognises that point and invites further discussion on whether, in the interests of streamlining, it might be better to incorporate the two exceptions. That should be discussed and dealt with at later stages in the proceedings. However, we also note the cabinet secretary’s response to the Subordinate Legislation Committee, which highlighted that the new-evidence exception will be limited to a specific range of offences, whereas the admissions exception will cover all offences. The committee, therefore, welcomes the Scottish Government giving further consideration to the matter.

Section 4 permits persons to be reprosecuted if new evidence comes to light. Again, the committee received mixed evidence on the issue. Witnesses from the Crown Office supported the general new-evidence exception and felt that it struck a “proportionate balance” between the rights of the accused and the rights of victims. Other witnesses either had reservations or, in the case of the Law Society of Scotland, supported the principle but questioned whether aspects of the current test would go far enough. However, after taking those various viewpoints into consideration, the committee concluded that the inclusion of a general new-evidence exception should be supported and that the tests in the bill are appropriate.

The range of offences that are to be covered by the new-evidence exception also sparked a variety of views. The committee firmly agrees with the Scottish Government that the exception should be made applicable only to a limited number of very serious offences. The committee also recognises the concern of respondents such as the Law Society over why some offences are included while other offences of commensurate seriousness are not. The committee therefore questions whether there could ever be a single, fixed list that would adequately and appropriately lay out the scope of the exception. The committee is, therefore, open-minded about exploring the possibility of replacing the list in schedule 1 with an alternative mechanism for restricting exceptions to only the most serious of offences, which is the unanimous intention of all concerned. My view, for example, is that there could be a restriction whereby only offences that were originally indicted in the High Court would come under this particular category. Again, however, that matter can be discussed in the weeks ahead.

Sections 5 and 6 contain commonsense provisions, and the committee is content with them.

Section 7 provides for a broader principle, in addition to the double jeopardy rule, against the unreasonable splitting of cases. The committee is content with the provisions that are included in the section, particularly in light of the Crown’s assurances that it restates current practice.

Sections 8 to 10 set out further provisions about pleas in bar of trial. Although section 8 attracted little attention from witnesses, Patrick Layden raised concerns over section 9, which deals with cases in which the prosecution’s argument against the plea in bar of trial is that the original trial was a nullity and therefore not valid. Mr Layden stated that that is

“simply unnecessary, overcomplicates the legislation and should be removed.”—[Official Report, Justice Committee, 16 November 2010; c 3767.]

In light of that, the committee asks the Scottish Government to explain more fully, either today or later, why section 9 is necessary in addition to sections 7(4) and 12.

Section 10 applies where the accused was originally tried in a jurisdiction outwith the United Kingdom and sets out the factors that the court is to consider in deciding whether it is in the interests of justice for a retrial to proceed. The section attracted some comment. The Faculty of Advocates did not object to the proposal but questioned how it would work in practice. It stated:

“one of the difficulties will be in establishing the standards that have been applied in the context of a foreign prosecution.”—[Official Report, Justice Committee, 7 December 2010; c 3917.]

At the same time, however, measures must be in place for instances in which a previous trial occurred in a jurisdiction that does not uphold our standards of justice. The committee is satisfied with the level of discretion that the section affords courts in deciding whether or not a retrial should proceed in such instances.