Today the long awaited report into Double Jeopardy in Scotland was published and it made some recommendations on the matter. I have not yet had an opportunity to read the report in full and have based this blog post on what I have managed to read and what has been publicly reported in the media and on other legal blogs and websites.
It is a difficult question as naturally we like to see justice being done. It can be intensely annoying to see someone be found not guilty when they probably were guilty of whatever crime they were accused off. The fact that the Crown has one attempt at a prosecution, in my opinion, means that they are more thorough and robust in their investigation and evidence gathering. They cannot go into a prosecution with the idea that if it all goes pear shaped and they do not get the result they want then they can try again. It forces them to be sure of their evidence and means they are less likely to bring inappropriate prosecutions.
Now, the sheer cost involved in prosecution means that should the Crown gain the ability to prosecute more than once one would think that they would only reserve this ability to the most serious of cases and where significant new evidence comes to light.
However, the Double Jeopardy rule protects the people of Scotland from the Crown harassing them with numerous prosecutions after a judge has ruled that the Crown had insufficient evidence to convict or a jury has found them not guilty of a crime. As it stands once a case has been dismissed the accused can go about their business without having the worry of something from long ago coming back to haunt them.
The resources of the Crown far outstrip that of private individuals and if the police, Lord Advocate or individual prosecutors were so minded to then they have a far greater ability to continue digging long after a trial has concluded in order to obtain new evidence.
If the Double Jeopardy rule was to be abolished and there be no requirement for there to be new evidence to present then the Crown could immediately launch another prosecution if the decision of the court was not in their favour. Again, the Crown would be unlikely to do so, however, with the ability being their then they may well end up doing so. Giving a person or body power opens up the potential for that power to be abuse. When the Regulation of Investigatory Powers Act 2000 was passed it was not intended that the powers contained within it would be used in anything other than the most serious cases, but we ended up seeing cases of local authorities using the powers to effectively stalk people the LA suspected of lying about their place of residence on a school application.
However, having said all of the above and having read the draft Bill contained within the report I have to say that I am in full support of the recommendations as to how the Double Jeopardy rule should be clarified and placed into statutory standing in Scotland. The recommendations they have made and the subsequent draft Bill put forward by the Commission still affords an adequate level of protection for Scottish People, but also ensures that in some of the more extreme examples of a miscarriage of justice where an individual has been acquitted are able to be rectified by due process.
Now, one must note the reasons for this report coming about. Following the collapse of the World’s End Murder trial when the presiding judge, Lord Clarke, halted the prosecution due to taking the view that they had insufficient evidence in Law for the question of the accused’s guilt or innocence to be put to a jury, the Lord Advocate was summoned to Parliament to explain why the case had collapsed and subsequently the Cabinet Secretary for Justice, Mr Kenny McAskill MSP, requested that the Scottish Law Commission investigated the question of Double Jeopardy in Scotland.
In their report the Law Commission has recommended that any changes in the Law relating to Double Jeopardy should not be retrospective in nature. This is something that I fully agree with. Alterations to the Criminal Law should never be made retrospective under any circumstances.
Morain Scott, the father of World’s End murder victim Helen Scott, was obviously disappointed with this view of the Scottish Law Commission. It must be difficult for him to not have had the case of the man accused of his daughter’s murder put to a jury and one cannot even begin to sympathise, understand or appreciate exactly how that feels. However, there is a real danger when people emotionally attached to a case comment or get involved in the changing of the Law as often the emotions override the ability to look at the wider picture. Watching the short clip of his interview on the BBC News website today one could see that he was indeed “gutted” at the report of the Scottish Law Commission.
However, I feel I must comment on the example he gave of things been done retrospective. He attempted to compare the trial of the murder of his daughter to that of someone winning an appeal against conviction. However, people are not released from Prison nor have their convictions quashed based on a subsequent change in the law that was applied retrospectively. In my opinion, and the opinion of others, one can distinguish these two situations. We are not comparing like for like. At the time of this acquittal the Double Jeopardy rule was in place. If the Double Jeopardy rule had been not been in place (and putting to the side the fact that had it not then this discussion would never have happened) then comparing the case to that of a wrongfully convicted person appealing his case would be a reasonable comparison. Simply and respectfully put (or as respectfully put as possible) Mr Scott has misinterpreted or misunderstood the meaning of retrospective when it comes to the application of Law and legal matters.
So, in essence, I am generally in favour of Double Jeopardy, however, the recommendations of the Scottish Law Commission are, in my view, reasonable and agreeable and therefore I am in full support of those recommendations and hope that the Scottish Government and Scottish Parliament decide to adopt those recommendations in full.
For those who are interested in reading it, the full report from the Scottish Law Commission into the question of Double Jeopardy can be found here.
prout de jure 