THE centuries-old law which prevents anyone being tried twice for the same offence is to be changed, justice secretary Kenny MacAskill said yesterday.
He pledged to legislate "at the earliest practical opportunity", saying "change is needed and needed now".
His vow came after the Scottish Law Commission (SLC) recommended the 800-year-old principle of "double jeopardy" should be set out in law and clarified.
The SLC made no recommendation on whether this should allow for retrial if new evidence emerged, but it said any change in legislation should not be retrospective. It is probable that proposals will be put out to consultation, with Mr MacAskill eager to hear opinion from the legal profession.
The Conservatives attacked the report's conclusions as a "disappointing fudge" and said the law should allow suspects to be tried twice if new evidence emerged, as in England and Wales.
MSP John Lamont said: "That same change must be made now in Scotland and applied retrospectively."
Labour justice spokesman Richard Baker said the 2007 case of the World's End murders showed the need for change.
Convicted double killer Angus Sinclair, 62, was accused of raping and murdering Christine Eadie and Helen Scott after they had been on a night out at the Edinburgh pub, in 1977.
The charges were thrown out for lack of evidence.
Mr Baker said: "The failure of the prosecution of Angus Sinclair demonstrated the clear need to update the law in this area.
"Labour has been calling for a reform of double jeopardy for some time as the justice system needs to be rebalanced to take more account of the needs of victims of crime."
The family of one of the World's End victims said they were "deeply disappointed" that the commission did not want a retrospective change in the law.
Helen Scott's father, Morain, said: "It is of extreme importance that the victims of crime and the Scottish public have complete confidence in the ability of Scotland's criminal justice system to deliver justice.
"In our opinion, today's recommendations fall far short of meeting these expectations."
Responding to the commission report, Mr MacAskill said it made no recommendation either way on the "central question" of whether there should be a general exception to the rule against double jeopardy where new evidence emerged after a trial.
He said: "This is a particularly complex question which requires detailed consideration and may require consultation.
"However, there is a clear direction of travel and I want to ensure that Scotland has a double jeopardy law which is fit for the 21st century.
"I believe that Scotland's approach to double jeopardy should reflect the interests of justice and not just the accused."
The SLC report recommended the principle of double jeopardy be set out in law, and that the rule should not apply if an acquitted person later admitted carrying out the offence
or in cases where the original trial was corrupted, for example by jury rigging or witnesses being intimidated. It also said, if Holyrood did decide to introduce the possibility of a second trial, this should be limited to the most serious offences of murder and rape.
The existing double jeopardy rule applies to the "not proven" verdict, a disposal that also bars further proceedings.
Commissioner Patrick Layden, QC, explained the rule had protected citizens for hundreds of years: "Essentially, it prevents the state from running the criminal prosecution system on a 'heads we win; tails, let's play again until you lose' basis. So we are recommending that it should be kept, and put into legislation."
Tom Wood, former deputy chief constable of Lothian and Borders Police, said that any change to the law should not be applied wholesale. He said: "What you wouldn't want is a wholesale backlog of cases coming up. It's absolutely right to concentrate on very serious cases, murder and rape, and only consider a retrial when there's new evidence."
The double jeopardy rule was abolished in England and Wales in 2005 for serious crimes such as murder.
World's End murders may never be solved after failed prosecution
THE World's End murder case is one of the most contentious in recent Scottish legal history, and remains at the heart of the debate over double jeopardy.
The bodies of Helen Scott and Christine Eadie, both 17, were found in East Lothian in 1977.
The girls had spent an evening out in Edinburgh, and were last seen in the World's End pub in the High Street.
Their deaths sparked a massive investigation. Yet despite being one of the most high-profile murder cases in Scotland, the case remains unsolved.
Detective work eventually led to Angus Sinclair, a convicted murderer, standing trial. But the prosecution collapsed in controversial circumstances two years ago, and the double jeopardy rule makes it impossible for the Crown to again indict him for murdering the two girls.
The trial of Sinclair, who had a history of sex offences and violence, broke down at the High Court in Edinburgh in 2007, when Lord Clarke ruled there was not enough evidence for a jury to reach a verdict.
The fallout sparked a fierce public row over judicial independence between Scotland's most senior judge, Lord Hamilton, and Lord Advocate Elish Angiolini, who said there had been a strong enough case to convict Sinclair. He accused her of disrespecting the judiciary by making a statement to the Scottish Parliament to explain the trial's collapse.
The recriminations also saw police officers privately blame prosecutors for the way the case was handled.
Should law be changed?
Says Paul McBride QC
THE Scottish Law Commission has come out with a very weak report. The commission was obviously split over the issue of double jeopardy, and recommended that whatever parliament does, it should not be retrospective.
I believe that is wrong. The commission should have recommended the abolition of the double jeopardy rule, and made further recommendations that the changes be retrospective.
We currently have the position whereby if someone is guilty, and new and compelling evidence comes to light that shows they are innocent, they can go to the appeal court.
But if someone is innocent, and new and compelling evidence emerges which shows their guilt, they cannot be retried. That is wrong in principle.
With the advance of DNA evidence, it is possible to show that people who were acquitted of crimes many, many years ago were in fact guilty. Yet as things stand, they cannot be brought back to face trial.
I would not like to explain to the family of a deceased child who was raped and murdered that the evidence exists to prove the guilt of the person who killed their child, but that due to the law, they cannot be brought to court.
I could stand trial for murder and be acquitted. Yet I could tell the world that I was guilty, and how the jury had made a mistake and yet would not be retried. I think that most right-thinking people would agree that that is wrong.
With the advance of technology, the law has to change also. The law changes all the time in all sorts of other areas.
• Paul McBride, QC, is a criminal lawyer and advocate, specialising in criminal defence and regulatory crime.
THE rule against further trials has existed in Scotland for several hundred years, and it has developed for a good reason – so that there is certainty and finality in the justice system.
There have been suggestions made that there is a lack of finality in the system because the accused can appeal, but that is part of legal proceedings.
The rule acts as an important safeguard to prevent innocent people being repeatedly prosecuted and visited with charges until a certain result emerges.
The evidence that is presented in court by the Crown is sophisticated, and it is difficult to tell how it will progress further in any significant way. We already have things like evidence from mobile phone records, DNA, and fingerprints, which are put into cases.
For that reason, I believe the Crown should not need another opportunity to prosecute. It has the option to wait, gather evidence, and build the best possible case, before taking a case to court, and it should continue to do that.
In England, there have been suggestions of evidence about police practices having become complacent, where they take the approach that the first time doesn't really matter as they'll be able to build a case again.
That is very dangerous for the justice system, as it leads to a presumption of guilt. We cannot have the legal system operating according to popularity, and to change the law in this area would be to sacrifice principles for expediency.
If someone is acquitted, and then makes clear that they had committed the offence for which they stood trial, they can be prosecuted for perjury.
We should work on the basis that we cannot change a law that would endanger innocent people being repeatedly prosecuted.
• John Scott is a partner with Edinburgh-based Capital Defence Lawyers and former head of the Scottish Human Rights Centre.
COMMISSION CAN ONLY RECOMMEND, NOT ENFORCE
THE Scottish Law Commission offers the Scottish Government independent advice on law reform.
Set up by the Law Commissions Act 1965, it makes recommendations designed to "improve, simplify and update" the law of Scotland.
The commission does not have power to reform the law. That remains the duty of the Scottish Parliament or, where appropriate, Westminster.
The body consists of five commissioners appointed by Scottish ministers.
The current chair is the Hon Lord Drummond Young, a Court of Session judge. The other commissioners are Laura Dunlop, QC, Professor George Gretton, Patrick Layden, QC, and Professor Hector MacQueen.
The commission began the review of the double jeopardy rule in November 2007.