Law Society: Don't try old cases under new double jeopardy rule

Published on Thursday 9 September 2010 17:58

LAWYERS have warned any changes to the double jeopardy rule should not be retrospective and used only in exceptional circumstances.

The Law Society of Scotland believes double jeopardy should remain, unless there is "compelling" new evidence, or an acquitted defendant subsequently confesses. Even then, it should not be used in cases heard before the bill - which is yet to be voted on - has been passed.

Bill McVicar, convener of the society's criminal law committee, said: "It is a fundamental principle of law that you cannot be tried twice for the same offence. If you are making such a fundamental change, it should not be retrospective.

"We will no doubt be asked to give further evidence if they're considering a change as fundamental as this. There's a bit of a division within the legal community as to whether there should be any change at all. It's a big thing that some people would urge against."

Justice secretary Kenny MacAskill says he expects any new law to be used only "once in every five years".

The Scottish Government's bill is in line with the Law Society in saying that compelling new evidence or a subsequent confession should trigger a second trial. But it also states that tainted trials, such as by intimidation, could be heard again, and that where a victim later dies of injuries suffered in a crime, a new culpable homicide case could be brought.

It would also apply only to the most serious crimes, such as murder, rape, culpable homicide and serious sexual offences.

The Law Society's opposition to applying the legislation retrospectively would rule out a retrial of Angus Sinclair for the World's End murders of Helen Scott and Christine Eadie, both 17, after a night out in Edinburgh in 1977.

Sinclair was prosecuted three years ago, but the case was thrown out by the judge due to a lack of evidence.

It will be up to the Crown Office, under Lord Advocate Elish Angiolini, to decide whether there is any "compelling" new evidence that could trigger a new trial.

Helen's father, Morain Scott, 80, from Edinburgh, said: "It's early days. I'm quite sure the bill will go through - it seems to have all-party support - but then it depends on how it's interpreted and what's new evidence. Is there something new in DNA?

"At the end of the day, it's up to the Lord Advocate to make the final decision. Until that happens, I'm not getting my hopes up again. I've been up and down for 30 years. I think this is going to be a long, drawn-out affair."

He added: "It's very, very important that justice is done. It's a case of getting justice for Helen and Christine, that's the whole thing about it. I don't think they've had justice up to now.

"It's important to get closure. It's something that nags away at me every day. Every day, there seems to be some news, or an anniversary, something bringing it all back."

A Crown Office spokeswoman said: "Any decision to bring forward amendment to the law regarding double jeopardy is a matter for the Scottish Government and parliament. We cannot speculate on how any particular cases will be dealt with under a change to the law.

"The Crown raised a prosecution against Angus Sinclair because Crown Counsel believed there was a sufficiency of evidence against him for the murders of Christine Eadie and Helen Scott. That remains the view of Crown Counsel."

Mr MacAskill said: "We're going to introduce this legislation in October.

"It's important that we prepare for the rare exceptions when this law will be needed. It would only be for the biggest and most serious cases. It would probably be used about once in every five years but will be of great concern to the victims of the families concerned."