Courts likely to keep double jeopardy in all but rare cases

Published on Sunday 6 December 2009 19:30

THE fact that the principle of double jeopardy in Scottish courts has been in existence for 800 years could have been a contributing factor in the Scottish Law Commission's unwillingness to call for its eradication last week.

Despite recommending the use of retrials to correct the most egregious flaw in the system that could see a defendant escape further prosecution even if they confessed on the steps of the court, the commissioners resisted popular and political opinion and stopped short of going as far as lawmakers have done in England, where retrials are permitted if "fresh and viable" evidence comes to light.

In releasing the commission's findings, Patrick Layden, QC, mounted an impassioned rearguard defence of the principle, arguing that it continued to protect the citizen against undue persecution from a state prosecutor determined on a guilty plea.

Indeed, the commission's report described double jeopardy as "indispensable", offering up a recognition of the finality of criminal proceedings, something it pointed out helped boost public confidence in the courts system. "These considerations are as valid in modern times as they have ever been," the commission said in stout defence.

"We have therefore concluded that the rule against double jeopardy remains essential to the rule of law."

The commission did concede that retrials should be permitted in cases where witness intimidation or jury rigging were discovered, but it explicitly ruled out applying this principle retrospectively. Applying new rules to notorious older cases could, the commission's report noted, face challenges under the European Convention of Human Rights.

"We identify a possible issue regarding the compatibility of a retrospective exception on the basis of new evidence with the right to a private and family life in terms of Article 8(1) of the Convention," it said.

Some called the findings a "disappointing fudge" that ignored the apparent success with which the principle had been updated in England.

There, new rules, introduced under the Criminal Justice Act 2003, allow retrials of people acquitted if new and compelling evidence is brought to light in the most solemn of cases, such as murder, rape, armed robbery and serious drug crimes.

This was introduced after the 1999 MacPherson Report into the events surrounding the murder of Stephen Lawrence in London in 1993. It suggested the principle should be set aside if "fresh and viable" evidence came to light and if agreed by the Director of Public Prosecutions and the Court of Appeal.

Back in Scotland, the commission's findings and the subsequent political fall-out have opened up a good, old-fashioned legal debate on the merits of the system and how it could be improved.

In one corner are those such as advocate Lewis Kennedy who express frustration at the tampering with the accumulated wisdom of centuries. "There is a greater good at stake here," he says. "The point about the double jeopardy rule is that it recognises the anguish of going on trial. It's about stopping the police pursuing vendettas; abuse of process by the Crown – politically motivated retrials. I have a problem with the creation of an effective new verdict – a 'provisional' acquittal, where the first trial is just a dress rehearsal."

In the other corner are people such as advocate Niall McCluskey, who state the rule should be scrapped. "The Crown should only be given leave to raise a fresh prosecution in exceptional circumstances, so they should meet a high test in order to prosecute someone again," he says. " Those types of circumstances are if new DNA evidence comes to light or if any substantial evidence – such as a confession – comes to light, not just a couple of people who turn up and claim to be eye- witnesses."

The notion of a high judicial hurdle to review new evidence before potential retrials is a common thread among those that want the rule to be reformed, but Lewis Kennedy raises some caution about such a move. "I would be concerned about what exactly would be meant by 'new' evidence," he says. "Would it be any evidence that was not placed before the court first time round? Would it be evidence that the police failed to gather or use? Would it be evidence that was ruled inadmissible? I don't quite buy into the argument that DNA might be discovered after someone is acquitted. How can modern evidence-gathering miss all this? Cold cases have almost insurmountable problems with contamination."

Professor Gerry Maher, of Edinburgh University Law School, who previously sat on the commission and was involved in the early stages of the investigation, believes the notion of ending double jeopardy altogether is misguided. "The debate should be on whether there should be principled exceptions to double jeopardy – you are not abolishing it then, you are saying there are circumstances where, in the interests of justice, a second trial is required. You are not saying double jeopardy, the old-fashioned principle, must go."

He adds: "I am not sure I have any objection to what the commission did recommend. The two exceptions they say should be allowed make a lot of sense. No-one is going to say that an acquittal caused by a criminal activity in the procedure should be allowed to stand. In the other – confession – once the scenario becomes clear that you could be retried, no accused is going to be silly enough to say it. To some extent, you have solved the problem simply by legislating on it."

This theme is picked up by Brian McConnachie, QC, of Black Chambers, a former advocate depute. He contends that the commission went as far as it needed to because, with increased use of DNA evidence, the likelihood of future cases such as the World's End murders cropping up again is increasingly slight.

In addition, he notes that the lack of DNA evidence was not actually the issue at stake in the failed prosecution of Angus Sinclair. "Any situation in which double jeopardy was done away with would not affect the prosecution in the World's End case," he says. "In that case, they had the evidence and it would be very, very difficult to argue that we had another bit and that should be enough to reopen proceedings. I don't think, even under the current English procedures, that a case like that would actually get off the ground."

Even the proposals put forward by the commission are met with a lukewarm response. "I am unaware of any case where there has been evidence of jury rigging that people have discovered and thought it appropriate to have another trial," he says. "I have never known that to be discovered.

"And people, generally speaking, don't confess to crimes for which they have been acquitted."