Double Jeopardy,Double Standards and the Search for Justice:An Argument for change

Double Jeopardy, Double Standards and the Search for Justice

By Michelle Hynes-McIlroy LLB(Hons)
Supervised by Dr Fiona Leverick
Submitted to University of Glasgow School of Law
March 2009

Question; Should Scots Law be changed to allow for a prosecution appeal and a re-trial, if new and compelling evidence emerges after an acquittal?
Chapter One

In Scots Law an acquittal for a charge of homicide is final and there are no means of appeal by the Crown even if new and compelling evidence becomes available later. The obstacle which prevents a re-trial is the common law rule of ‘double jeopardy’ or ‘thole assise’ in Scotland.
The aim of my project is to consider if Scots Law should be changed to allow for an exception to be made to the double jeopardy rules, which would allow for a Crown Prosecution appeal following the acquittal and a re-trial; if new and compelling evidence later becomes available. In this paper we will explore double jeopardy and the current common law rules which apply to its use. We trace the protection of ‘freedom’ and ‘justice’ as far back as 2500 BC and suggest that these continue to be values that society aspires to attain today.
We will consider what type of evidence might give weight to an argument for abandoning the strict application of double jeopardy and the principle of res judicata. For the purpose of this paper we will consider only instances when new and compelling evidence comprising of Deoxyribonucleic Acid (DNA) emerge which can be used by the prosecution as conclusive compelling evidence and thus secure a conviction or challenge an acquittal. I will argue that, since DNA evidence discovered later is used to secure a conviction, DNA evidence should also be used to justify a re-trial. It is essential that accepted legal principles are reviewed from time to time in order that they are considered by society to be reflective of the values, determined as precious to society. We will consider Law reform in general and discuss why reform is necessary. I will offer as example the Law reforms in England, New Zealand and Australia. I will analyse the recent publication of a discussion paper by the Scottish Law Commission No 141 which was published in January 2009 six months after I commenced my project. It was agreed with my supervisor Dr Fiona Leverick that the cut off date should be December 2008 and as the Commission had not published at that date I commenced the writing up of this report. I have however dedicated Chapter Five to the Scottish Law Commission’s discussion paper No 141 and I have cross referenced some of their findings which have coincided with my own throughout. Where the law commission fails to provide statistics I have attempted to provide some.
I will conclude that Scots Criminal Law should be reviewed and modified to allow the creation, of an exception to double jeopardy only for fresh evidence which will, by its creation acknowledge and utilise the progress of science and assist us in finding ‘justice’. I suggest that we should be pro-active in our law making and not re-active (we should not wait for a high profile case akin to those in other jurisdictions).We should acknowledge that science may bring advancements which will aid the criminal justice system in its efforts to punish the guilty and protect the innocent. I suggest that we welcome these developments as they arise and utilise them by periodically reviewing our laws and by not being afraid to reform them when it is necessary. We should not stick to ancient maxims ‘just for the sake of it.’ In my opinion Scots law should be amended and the rules of double jeopardy relaxed to allow for an exception to double jeopardy to be created in cases where new and compelling evidence and specifically DNA evidence emerges after an acquittal.

Chapter Two
The History of ‘Double Jeopardy’

Coffey describes double jeopardy as, “a principle or maxim of the common law (as opposed to a rule per se) thus incorporates a multitude of substantive and procedural rules pertaining to the investigation, indictment and trial of criminal offences” Where did this common law principle originate? What was its aim?
In this chapter we will discuss the foundations of double jeopardy and discuss how it came to be included in Scots Law. We will look at how it was used historically and how it changed. We will consider Roman law and note the Law reform of Justinian. We will consider the historical protection of a person’s freedom. The freedom to live freely without the fear of re-prosecution or the threat of the possibility of a further trial. We will look at the protection of that freedom within society.
Society changes and with these changes reform takes place. It has been difficult to accurately find where these principles, prohibiting a person from being tried twice originated from although I have looked as far back as I could. I consulted ancient laws found within the Code of Ur-Nammu which is the oldest law code from Mesopotamia and evidence of an ancient law reform from 2500BC . It contains the first recorded mention of a law reform which seeks to protect a person’s autonomy and freedom. Urukagina is referred to as “the first social reformer in history” in which he aimed to change the laws “in the interest of the oppressed common people.” What can be deduced from this is that as early as early as 2500BC (the first mention of freedom in the Sumerian term ama-gi) the value of justice and freedom were crucial in society and were protected by law. Double jeopardy is mentioned in Ancient Greece in 399BC and is evident in the writings of Demosthenes who writes;
The main concern of a man brought into court was to win a verdict by one means or another, for once tried he could not be prosecuted again on the same charge, the rule of ne bis in eadem re being accepted in Athens if not in Sparta, though in this manner again the pleaders were not slow to find loopholes in the law and to employ various devices including charges of false witness, for reopening questions which had apparently already been disposed of by the courts.
In Roman law double jeopardy is found in the Latin phrase; Non Bis in Idem which is translated as ‘not twice for the same thing’. Mentions of Non Bis in Idem are cited in Justinian’s Digest which is found within the Corpus Juris Civilis. In English law the maxim according to Friedland is as old as the common law, “Nemo bis in idipsum ‘no man ought to be punished twice for the same offence.’ In ecclesiastical law it originates from a commentary on the prophet Nahum by St. Jerome in 391AD. The common values of justice and freedom run through most jurisdictions of legal systems, yet there are periods of time within all societies when these values are not being achieved or where the values of society have changed and thus it is evident that the law was reviewed accordingly. During the fourteenth century the principle of double jeopardy was developed at common law, based on, according to Coffey, “the deficiencies in medieval criminal procedure, to the advantages of the prosecution, and the draconian punishments imposed on defendants”

In Scotland the phrase to ‘thole an assise’ is found in common law with reference to the principle of double jeopardy. To ‘thole’ is a term in Scots which means to undergo or endure and an ‘assise’ is a Scots term for a jury. The protection of a person’s freedom has been historically an equally important tenant of Scots Law and this can be seen in an early manuscript in from the 14th Century which Hume comments on,
“No assise may be held concerning an issue about which there has already been an assise; nor probation when there has already been probation; nor compurgation when there has been compurgation” “…that the panel can never again be challenged or called in question, or made to thole an assize on the matter or charge that had been tried”
In their recent discussion paper, The Scottish Law Commission identifies that whilst the English law developed into the common law version of autrefois acquit (based on the continental maxim) Scots law during the eighteenth century, “developed its own rule which was broader and less narrowly technical than the English special please of autrefois acquit and autrefois convict”
Current Scots Law prohibits an appeal by the prosecution following an acquittal. This has remained unchanged.
Chapter Three
Justification for Double Jeopardy

And after the acquitted person steps out of the courtroom and breathes afresh the air of freedom, even if it should emerge afterwards that there is fresh evidence of his guilt, even evidence provided by his own admission of guilt, he cannot be put on trial again for the offence of which he has been found not guilty by the jury.

Having established in the first chapter the existence of the double jeopardy rules (originally known as ‘tholed assise’) operating within Scots law, I propose to delve a little deeper in this chapter and consider why we have continued to preserve the ‘freedom’ of a man, even if he is later discovered to be guilty, from being exposed to a further trial after an acquittal. We will consider ‘justice’ in the wider application of the term and discuss how it is achieved by the maintenance of a system of substantive and procedural rules as outlined by Coffey in the first chapter. In evaluating the merits of double jeopardy we will argue that a guilty man should not be allowed to breathe a sigh of relief in evading justice and that justice for the victim’s family should be placed as a higher social value than the protection of a guilty person through the loophole of double jeopardy. We will look at the risk of wrongful convictions and consider how double jeopardy assists us in achieving justice. We will look at the principle of res judicata and the importance of a final judgement in criminal cases and we will question its legitimacy and application. We will then turn our attention to the restrictions of the abuse of power of the State and ask if double jeopardy continues to fulfil this task even when a guilty person evades justice. We will examine the Police investigation stage within our criminal justice system and ask whether having only one chance to obtain a conviction encourages the efficient investigation. We will examine the distress caused to an acquitted person following the trial process and consider in light of this the rights of the victim’s family in their quest for justice. Finally we will consider the increased risk of a wrongful prosecution and the advantages gained by the prosecution in a fresh trial. In this chapter we will explore the arguments for keeping double jeopardy or ‘thole assise’ in Scotland. We will consider why we continue to use this common law principle, if it works and question if there are any justifications for reviewing and changing our law.
The Rt Hon Alex Salmon Scotland’s First Minister opened a lecture in honour of Adam Smith at the University of Glasgow on 05th March 2009. I was honoured to be able to attend and hear first hand from our First Minister the values of the Scottish Executive. The purpose of the lecture was to discuss ‘Citizenship and Scottish Civic Culture.’ In his opening address he proudly identified ‘Justice’ as one of the highest social values to be pursued in Scotland. “Today we regard justice as the hallmark of civilized, decent society. We regard it as a founding democratic principle”
Historically the search for ‘justice’ is evident is all societies and in ancient Greece is found under the personification of the Goddess Dike (Justice).Dike is said to overlook all aspects of human life, guarding it and protecting all that is fair and right and of benefit to society. Demomonsthenes writes in 4th Century BC of ‘Justice’,
You must magnify Eunomia (the Goddess of Order) who loves what is right and preserves every city and every land; and before you cast your votes, each juryman must reflect that he is being watched by hallowed and inexorable Dike (Justice), who, as Orpheus, that all the works of men. Each must keep watch and ward lest he shame that goddess, from whom everyone that is chosen by lot deserves his name of juror, because he has this day received a sacred trust from the laws, from the constitution, from the fatherland,…the duty of guarding all that is fair and right and beneficial in our city.

Justice is still of key importance within our Scots jurisprudence as stated by the First Minister. Aristotle viewed justice as a virtue. Hume argues that justice is approved of because it has utility and in his opinion, justice is created and not a natural thing. We must; in order to secure justice; organise our criminal law system in such a way that protection is offered to the innocent.

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual or an alleged offence, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty

and a key aim of the criminal justice system which the law Commission identify as,
“To ensure that the guilty are convicted” I agree with these principles and I argue that the creation of an exception to double jeopardy would allow this aim to be achieved. If we continue to adhere to strict double jeopardy we will fail to achieve the aim of the criminal justice system and fail to secure justice.

a) res judicata
The strongest argument against changing the law of double jeopardy is the principle of res judicata. The doctrine of res judicata is one which places an emphasis on the finality of a judgement and thus this principle creates an obstacle to my argument that a retrial should occur if fresh evidence is presented after an acquittal. Let us look closely at the principle of res judicata and consider if it is insurmountable.
Res judicata is a Latin term which means ‘a matter already decided.’ It is stated that res judicata is a rule of universal law pervading every well regulated system of jurisprudence and is put upon two grounds, embodied in various maxims of the common law; the one, public policy and necessity, which makes it to the interest of the State that there should be an end to litigation. Finality is a fundamental social value and seen to be a place where a man may rest assured that no further action will be invoked against him. Lord Simon of Glaisdale emphasises the importance of the finality of judgements in the Ampthill Peerage case where he says,
But the fundamental principle that it is in societies interest that there should be some end to litigation is seen most characteristically in the recognition by our law – by every system of law – of the finality of a judgement. If the judgement has been obtained by fraud or collusion it is considered as a nullity and the law provides machinery whereby its nullity can be established. If the judgement has been obtained in consequence of some procedural irregularity, it may sometimes be set aside. But such exceptional cases apart, the judgement must be allowed to conclude the matter
Once an accused has been acquitted the judgement and its finality rests upon a “need for repose, a desire to know the extent of one’s liability and an interest in knowing “once and for all” how many years one will have to spend in prison” Roberts maintains that,
In a liberal democracy, it is fundamental political and social objective to allow individuals as much personal autonomy as possible, to allow people the space to live their own lives and pursue their own visions of the good life. Lack of finality in criminal proceedings impinges on this to a significant degrees, in that the individual, though acquitted of a crime, is not free thereafter to plan his or her life, enter into engagements with others and so on, if required constantly to have in mind the danger of being once more subject to a criminal prosecution for the same alleged crime
I am not persuaded by Robert’s argument as it fails to emphasise the needs of a victim in a liberal democracy. The lack of recourse for a prosecutor to appeal an acquittal is in my opinion, deficient and defeats the objectives of our criminal justice system.
How does double jeopardy secure justice? Coffey suggests, “One of the primary aims of double jeopardy jurisprudence is the preservation of finality of judgements” He continues,
Proscription against retrials is best described as opposed to being a rule of law, thereby incorporating a multitude of rules of criminal procedure constituting the common law and prescription against retrials for the same criminal offence.

According to Hamer, the finality of a judgement is therefore one of two main arguments and goals of our criminal justice. I question this and ask if it can be justified that a wrong decision be held to be final and unchallengeable purely because it is final? There is no logic in this assumption and I can find no authority in my research which indicates that the aim of the criminal justice system is to ignore wrong decisions? This in my opinion shows our criminal justice system to operate with double standards as a conviction and a sentence can be challenged yet an acquittal cannot. Connelly writes in her paper Courts that an appeal against a conviction or sentence is fundamental to acquiring justice, “such a right of appeal is recognised as central to any system of justice (Scottish Office, 1994f)” yet the quest for ‘justice’ is deterred by the absence of a counter system of appeal for acquittals. Dennis argues that,
Finality as a value in criminal litigation is relatively weak as far as convictions are concerned. A final conviction remains open to challenge- without limit of time- on the ground that it was mistaken and that a miscarriage of justice occurred

It is Dennis’ position that “The interests of finality of legal process ought to be subordinate to the interest of the legitimacy of the process” If the finality of judgement is overturned by the creation of an exception to double jeopardy rules the freedom of an individual becomes unprotected. All previous decisions of acquittals will become challengeable and all freed men who were perhaps at one time charged of an offence might be forced to live in fear of retrospection. For Roberts our criminal justice system is unfair. In his paper Double jeopardy law reform: A Criminal Justice Commentary he coins this “principles asymmetry between convictions and acquittals” Despite this unfairness or unsymmetrical balance Freidland writes “a further danger is that to concede a right of appeal to the crown in even a limited number of cases makes all acquittals uncertain until the time of the appeal goes by” With the introduction of the newly created exception within English law all previous acquittals theoretically are insecure and lay open to challenge should new and compelling evidence emerge now. I suggest that the innocent and rightly acquitted person should have nothing to fear from this as there will be no new evidence of their guilt however; a guilty person may live in fear that new compelling evidence will become available; precisely because they are guilty and fear the penalty that awaits them. Double jeopardy in my opinion has operated as a ‘cloak of protection’, one which has until now shielded the guilty from justice and one which in many jurisdictions is disintegrating. I hope to persuade the reader that this protection should be removed from Scots Law.
Connelly emphasises the essential nature of the criminal trial and suggests that the aim of, “The criminal trial is not to determine whether the accused is innocent or guilty, but rather to assess whether the prosecution have proved beyond reasonable doubt that the accused committed the offence charged” New and compelling evidence such as DNA does precisely this; it provides the State with the opportunity to present evidence and secure a conviction; and thus achieve justice.

According to Friedland; the principle of res judicata in criminal cases according to the Ontario Court in Canada is used as a “method of preventing inconsistencies of verdicts”. It also functions as a method of forcing the prosecution into conducting an efficient case in the knowledge that they will only have one attempt at successfully obtaining a conviction. Another benefit ascribed to res judicata is that it is used as a way of preventing “harassment of the accused by the multiplicity of proceedings.” Whilst these objectives are crucial it is imperative that we re-evaluate the needs of society.

However res judicata is not always observed or followed. According to Jones and Christie “Prosecutors in a summary case may appeal by stated case on a point of law against an acquittal, or against the sentence passed”

Friedland points out that within other areas of law res judicata is dismissed all together. He provides evidence of this in Tax law where in the case of Society of Medical Officers of Health v. Hope it was held by Lord Radcliffe that “…it is more in the public interest that tax rate assessments should not be artificially encumbered with estoppels” My argument is that in the interest of ‘justice’ the Crown ought not be encumbered with the principle of strict ‘double jeopardy’ when new compelling evidence is found later.
Contrasting Scots law with other jurisdictions, Spenser questions if our criminal appeal system makes any sense at all. He suggests that we should “…stop tinkering with it and stand back from it, and try to re-plan it as a coherent whole” I agree with his argument and suggest that we required a method of re-balancing the needs of the victims and their families against the rights of the guilty.
In English law res judicata ahs not prevented the law from being changed and double jeopardy from being relaxed. There have been two cases since the implementation of the exception in England, R v. Dunlop and R v. Meill. and hopefully there will be many more to come. My argument is that whilst the finality of judgement is important, it is the finality of a correct judgement that should be protected not an incorrect one. If new and compelling evidence shows that the original acquittal was wrong and that the acquitted person was guilty of the charge of homicide then an injustice has occurred and our criminal justice system should have a mechanism, even if it is used only on rare occasions, to remedy it.

b) Abuse of Power
Double jeopardy offers protection to an innocent person and guarantees that they will not be wrongfully convicted. Friedland suggests that this protection is not only offered to the accused but also to the legal system as it promotes “respect and confidence” of the public. I argue that attaining justice promotes respect and confidence and not an antiquated system which fails its citizens.

Could the State keep prosecuting after an acquittal without any justification? No; as we have already established there are no mechanisms in place for an appeal against an acquittal so; if you get off with it, you literally get away with murder. What is suggested in my paper is a very strict exception that would jeopardise only the guilty; who are living freely under the ‘cloak of protection’ of double jeopardy. Recent changes in English law have created an exception in strict circumstances which allows for a retrial after an acquittal. Some argue that the State might abuse the powers bestowed on them to prosecute although there is no evidence of this. Double jeopardy operates in a form of checks and balances mechanism which fetters the power of the State and offers a protection to the citizen against injustice. Coffey places more emphasis on justice for the victim yet acknowledges the need for a limit to be placed on the number of times the crown case prosecute, “It is imperative that prospective legislation reforming the law on double jeopardy stipulates that only one retrial may proceed against the accused following the initial criminal trial”
This is a fair argument and I would argue that it exhibits features which would ensure a limit is placed on the powers of the State. If an exception to double jeopardy is created in Scotland the security of all previous acquittals is threatened and all acquittals and not proven verdicts would be open to challenge. This would span all types of crimes not only homicide. Friedland warns, “Too many improper acquittals tend to weaken the administration of justice.” He cites Miller “If the loss in successful prosecutions becomes proportionately great, the morale of the whole administrative organization becomes low; criminals become bold, and the people, first scornful of the agencies which they have set up, are then in desperation apt to adopt extreme measures”

In my opinion this principle is well grounded however one might consider the validity of new technological evidence which shows beyond a reasonable doubt the guilt of an acquitted person. I specifically refer to DNA evidence (we will examine DNA evidence later in my paper) and the justification that the conclusive nature of this evidence offers the justification for an exception to the finality of judgement, if the judgement (acquittal) is wrong. My argument is that no abuse of power would occur if the exception was limited to certain types of evidence and crimes. I argue that it would assist in the project of obtaining the objectives for Scotland’s Criminal Justice System which ought to be the achievement of justice for the victim, their families and society as a whole as proclaimed by our First Minister. Mr Salmond reiterated Adams Smith’s views on justice,
The general rules of almost all the virtues…of prudence, of charity, of generosity, of gratitude, of friendship, are in many respects loose and inaccurate. There is, however, one virtue of which the general rules determine with the greatest exactness every external action which requires it. This virtue is justice
Bringing his speech to a close Mr Salmond, having spoken in depth about many areas of crisis in Scotland acknowledged, “There is no doubt that the world is changing. We must be prepared to change with it.” I would urge the Scottish Executive to do just that and amend our law for appeals on acquittals.

c) Efficient Investigation
If there is only one opportunity to investigate and prosecute it is argued that the police and prosecution must get it right first time as they will have no second bite at the cherry, so to speak. It is suggested that having in place the double jeopardy rules promotes public confidence in our criminal justice system. I question this rationale; for what confidence can come from a criminal justice system which allows a guilty person to live freely when there is evidence that they are guilty. Our current position is in my opinion an insult to our criminal justice system and all the values that it stands for. I suggest that there is a need for public consultation in this area and considerable data needs to be obtained to consider if efficient investigation is marred by the double jeopardy rules. I would hope that a further consultation by the Scottish Law Commission might furnish us with more facts. The Scottish Law Commission argue that “the rule against double jeopardy is said to promote the proper carrying out of the function of investigating and prosecuting crime- or at least to prevent, or discourage, impropriety in those functions . If it were not there, it is said, then there would be a tendency for police and prosecutors not to exert themselves unduly before a first prosecution, because there would always be the opportunity of a second chance. I find no evidence to substantiate this claim therefore I would suggest that further investigation needs to be made into the efficiency of the Police and Prosecutors. This spurious argument is unsubstantiated. In the case of new evidence and in particular technological advancements such as DNA, it is likely that these may not have been available at the time of the original trial even if the police and prosecution service performed their roles impeccably.
The sanctity of the jury verdict and res judicata allows the public to rest assured that justice has been done and marks an end to a case. I would challenge these two principles. Spenser points out juries are comprised of human beings and are not infallible. Mistakes are made in both convictions and acquittals. He cites the case of Young where the jury consulted a Ouija-board in order to attempt to contact the spirit of the deceased for help in making a decision Spenser argues that a criminal justice system that fails to recognise that human error can occur and it fails to guard against that is one which is failing. Spenser finds the current legal machinery in Scotland to be seriously inadequate.
d) The Distress of the Trial Process
After a lengthy trial an accused may have been subjected to; together with his family a great deal of emotional pain and suffering and financial expense. The finality of the judgement, as we have previously discussed reassures the acquitted that he will not have to endure the same distress time and time again. Whilst in the case of an innocent man I agree but in the case of a guilty man then it seems unfair that the victims’ family and those associated with the victim should be denied justice purely on the basis that a guilty man faces distress. Chris Corns writes in Criminal Law journal that when considering, “The stresses caused by the ‘emotional suffering of others linked with the accused has to balance up the distress caused to the accused and his or her families with the public interest and the distress caused to the victims family.”
The Law Commission in England argued that this was not an absolute reason to amend the law and highlighted that a fresh trial occurs in cases of appeal against conviction and sentencing. They placed little weight on the distress argument. Roberts argues in his paper, Justice for all? Two bad arguments (and several good suggestions) for resisting double jeopardy reform, that for some witnesses even having to endure the trial process on the first occasion can be traumatic, and this he says provides an argument that “once is enough.” My counter argument here would be that the distress of losing a loved one though homicide is even more traumatic to the family. In the case where evidence of guilt is later found, I would ask, why should a guilty person not be exposed to trauma if it achieves the forgotten goal of giving ‘closure’ to a grieving family and attaining justice for society? It should be noted here that according to Moody “No agency in Scotland has responsibility for collecting information on the impact of crime on the victim and at no stage in the criminal justice process is such data-collection a matter of routine” Dennis challenges the Law Commissions Consultation paper No156 as he maintains that they attached a great deal of weight to the distress experienced by an accused at a trial. He cites Lord Loreburn L.C who claimed during the debating of the Criminal Justice Bill, “[it] approaches the confines of torture to put a man on trial twice for the same offence” Ian Dennis explains that this rationale is grounded in “the state’s duty of humanity to it’s citizens, which is an aspect of the liberal imperative to treat all citizens with dignity and respect” Yet this posits us with a substantial question ; who’s dignity and respect are we protecting; the guilty or the innocent? This favours the accused and not the victim? Dennis offers the family of the Late Stephen Lawrence as an example of citizens who would expose themselves to the trauma of a re-trial ( one which would unquestionable be painful and emotional, yet offer the chance of feeling a sence of justice and closure following the death of their son) Dennis argues “In such cases the distress to victims and their families from not permitting retrial might fairly be offset against the distress likely to be suffered by the defendants concerned” Sue Moody considers that the “Scottish criminal justice system does not sufficiently acknowledge the needs, and some would say the rights, of victims of crime.”
I argue that it is the duty of the State, to treat their citizens with dignity and respect and not to make a mockery of our legal system by adhering to archaic principles which were not in my opinion designed to allow for the evasion of justice.
e) Risk of wrongful prosecution
Juries do on occasion return perverse verdicts of guilty. The chance that a particular defendant will be perversely convicted must therefore increase if they are tried more than once.” Friedland identifies this as a core difficulty whilst some accused are guilty some are also innocent and “in many cases an innocent person will not have the stamina or resources effectively to fight a second charge.” The advantage made to the prosecution is that they have the resources to continue, have already gained a first sight of the evidence, and an opportunity to benefit a tactical advantage; thus rendering the second trial more likely to be successful. This applies also to appeals on convictions. In contrast to this, what about the rights of the victim’s and their families? Coffey argues for permitting retrials, “There are several important reasons for permitting retrials for the same offence following an acquittal; for instance: public confidence in the effective administration of the criminal justice system could be undermined: the guilty should not be allowed escape conviction and punishment because of a defect in the criminal justice process; and a general power to order a retrial in appropriate, albeit strictly limited circumstances, should exist” Dennis finds this argument weak and claims that,
The supposedly increased risk of wrongful conviction does not prevent retrials occurring under existing law, whether the jury has failed to agree, the Court of Appeal has ordered a new trial or for any other reason. Secondly, while it is true that second time round the prosecution have a better idea of the defence case, the converse is already true; the defence may equally be in a position to adapt their case to the prosecution strategy appropriately. Thirdly, if a new exception were to be introduced with a condition of new compelling evidence then any increased risk of wrongful conviction would be reduced”
f) Protection from Oppression
The double jeopardy rule prevents a citizen from harassment by the state. Without safeguards a citizen might be subject to repeated prosecutions and would live in fear that they would have to undergo the trial process again. It is argued that that the power bestowed on the State should be fettered by limiting the opportunities to re-prosecute. I accept this argument and I agree with Dennis in his suggestion that double jeopardy may appear to be an instrument which does precisely this; i.e. fetters the powers of the state does it remain ‘fit for purpose’ given advances in science?’ Coffey suggests that;

In consideration of the advancements made in forensic science, particularly the techniques for analysing of DNA evidence, voice recognition and facial mapping technology, the unconditional application of the common law proscription against retrials should be relaxed where fresh and compelling evidence of the accused guilt is subsequently discovered. Furthermore, the procedures for gathering such evidence may not have been available to the police and the Forensic Science laboratory at the time when the criminal offence was committed, perhaps many decades previously
One example of this is in the recent case of HM Advocate v Tobin where DNA evidence found some time later confirmed his guilt in the murder of a school girl Vicky Hamilton. Another example is found in the most recent case where DNA evidence was used to free a man held in custody for 27 years for the murder of a Bar maid in 1979.At the time of his conviction in 1979 DNA was not available and commenting on the quashing of his conviction The Lord Chief Justice of England and Wales said,
The conviction will be quashed for the simple reason that advances in the science of DNA long after the end of the trial, have proved a fact which, if it had been known at the time would…have resulted in quite a different investigation and a completely different trial
Coffey insists that whilst fairness to the accessed is of concern, what must not be overlooked is “society’s collective interest in the prosecution and punishment of offenders” Coffey addresses the need for Law reform in Ireland and concludes his article that “The criminal justice system needs to keep pace with the advancements made in forensic science. Just as forensic evidence can expose wrongful convictions so should it also be available to convict the guilty” How do we strike this balance? The conflict found within the criminal justice process creates a dichotomy where the individual’s rights are battling against the powers of the State. Andrew Ashworth suggests that this can be achieved by,
organising the criminal process in such a way as to render the risk of wrongful conviction acceptably low and this necessitates research both into the sources of errors and the consequences of erecting safeguards against them, the process of resolving the conflicts should be securely based on fact established by research
I propose that the progress of scientific discoveries such as DNA can assist us in the successful prosecution of crimes. If our Criminal Justice System rests on principles that are not flexible how we will ever change in the future? Our First Minister boasts of a vision for Scotland, acknowledging a changing world and urging us as a nation to be able to change with it. I would hope that this reform might help us to do just that. A progressive system of law can react to society and this is challenged by Roberts who argues against a reform in the area of double jeopardy and instead urges us to instead “concentrate in future on points of genuine importance and contention.” Is there any need for us to address double jeopardy at all? Have there been cases in Scotland where guilty people have evaded conviction or are the Scottish criminal justice system so effective that every one indicted for murder who is guilty is punished? Statistics show that in Scotland there were 737 Persons indicted with homicide charges in Scotland in the period 2003- 2008. If we are to agree with Roberts’ argument then we must accept and believe that justice has occurred on each of these instances? Is it realistic to suppose that every guilty person has been punished and every innocent released? Should we claim that there is nothing wrong with our Criminal Justice system? I disagree.
g) Fresh Evidence
What kind of evidence would justify an exception to double jeopardy? For the purpose of my argument we will consider only forensic evidence. Deoxyribonucleic acid or ‘DNA’ for short is a technological scientific development which, it is claimed to be, “the most important development in forensic science” in the last twenty years. DNA is used in the field of forensics and law as a method of identification which can be used as evidence of guilt. This scientific tool has only recently been discovered and the technology surrounding its uses is continuously being developed. Each person has a unique genetic make up (apart from identical twins who share a common DNA) which is found within all cells of the human body. These cells can be contained within every cell of a human body. DNA of an accused can be used to either conclude or discount evidence and can be used to determine the identity of these particles found at the scene of the crime. This is particularly relevant in cases of homicide. Mason confirms that from the perspective of a lawyer “by means of a radioactive ‘DNA probe’. The DNA pattern of the subject under study can be revealed by autoradiography in a form which has been aptly likened to a ‘bar code’ that is now attached to most pre-packed goods for sale” “The original correspondence of two biological specimens is confirmed by the correspondence of their two ‘bar codes.’”

In a recent prosecution DNA samples found in the case of HM Advocate v Tobin successfully contributed to the body of evidence used to secure a conviction for murder. If DNA is so conclusive that the chance of error would be one in a billion. I suggest that DNA could also confirm the guilt of a wrongly acquitted person. By failing to acknowledge progress and a changing society posits the question; what kind of justice is this? If DNA can be used one way (for appeals against conviction ) then my argument is that it should be used for appeals against acquittals. If new technology emerges in the future which can prove conclusively that an innocent man is serving a sentence for a crime he did not commit, this evidence would be accepted by law and used to clear him of his conviction?
New scientific evidence has led to the quashing of a verdict of murder for Sean Hodgson who served 27 Years for the murder of Teresa de Simone in 1982 and it is reported at the time of writing that “ The Criminal Cases review Commission is urging the Crown Prosecution Service to consider scores of other cases where fresh scientific tests might be appropriate.” We cannot predict how science will progress or technology will develop in the future but what we can do is allow for law reform to re-address legal principles and ensure that the law remains “fit for purpose” and that we continue to respect the highest values of society; which according to our First Minister is Justice.

Chapter four
Other jurisdictions

In this chapter we will look at Law reform in other jurisdictions. We will look at the Law reform in England, New Zealand and Australia. Law reform has existed since 2500BC as I mentioned earlier. The Scottish Law Commission was established in 1965 and has since is creation performed several law reforms.
Following a change to the Law in other jurisdictions the security of an acquittal is now challengeable following major law reforms in the jurisdiction of England, Wales, New South Wales, Queensland and South Australia. Hamer claims that these Law reviews demonstrate a method of achieving greater symmetry within our criminal justice systems and thus “giving greater emphasis to the interest of victims and of the wider community in the enforcement of the criminal law” the principle of double jeopardy remains within the terms of the European Charter and all European states recognise that “No One shall be liable to be tried or punished again for an offence for which he or she has already been finally convicted or acquitted”
I) England
The English review of Double Jeopardy arose in the wake of the Macpherson report which was undertaken following the acquittal of the accused in the Stephan Lawrence case. This resulted in an unsuccessful private prosecution led by the family of Stephen Lawrence and the public’s dissatisfaction with the handling of the murder enquiry by the police. It was requested that in light of the exceptional circumstance of the case that the issue should undergo a parliamentary debate. This led to the commissioning of the Law commission paper No 156 which in turn led to the amendment of the Criminal Justice Act 2003. The Law Commissions Consultation Paper 156 resulted in the implementation of the proposal that “the exception for new evidence should be available only where the new evidence makes the prosecutions case substantially stronger than it was on the first trial.” This review resulted in the implementation of the Criminal Justice Act 2003 where it is provided at Part 10 s 78 (1) The requirements of this section are met if there is new and compelling evidence against the acquitted person in relation to the qualifying offence.(2) Evidence is new if it was not adduced in the proceedings in which the person was acquitted (nor, if those were appeal proceedings, in earlier proceedings to which the appeal related).The provisions of this act are applicable in England and Wales and Northern Ireland. Dennis comments on the reform as a method of achieving Government policy and he claims it to be a radical way of “rebalancing the system away from the defendant.” Dennis supports the reform saying;
“The criminal justice exists to enforce the criminal law, and the correct enforcement of the criminal law against those whom we have reason to believe may be guilty is a matter of state policy”
Since the amendments there have been two retrials which have overcome the principles we have described earlier as obstacles and resulted in one conviction and one acquittal.
i) New Zealand
Following a high profile case in New Zealand the principle of double jeopardy was referred to the New Zealand Law Commission for review. It followed the acquittal of an accused indicted for murder. However the Law commission did not consider that the exception to double jeopardy under a new evidence exception was prudent. Double jeopardy however is embodied within statute in New Zealand and provides that “No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.”
iii) New South Wales
The Australian Law review followed a high profile campaign led by the Australian newspapers following the acquittal of an accused in the case of R v Carroll.
“The interests at stake…touch upon matters fundamental to the structure and operation of the legal system and to the nature of judicial power. First, there is the public interest in concluding litigation through judicial determinations which are final, binding and conclusive. Secondly, there is the need for orders and other solemn acts of the courts (unless set aside or quashed) to be treated as incontrovertibly correct. This reduces the scope of conflicting judicial decisions, which would tend to bring the administration of justice into disrepute.”
This led to the formation of a working group which recommended exception to the double jeopardy rule to be implemented in cases where fresh evidence became available. Legislation enacted by the Parliament of New South Wales allowing a fresh trial in the case of new evidence and also in cases where the original acquittal was tainted. This exception has now been implemented in most jurisdictions.
In accordance with the Criminal Code 1924 the Supreme Court may;
set aside the acquittal and order a new trial if it is of the opinion that the verdict of the jury should be set aside on the grounds that it is unreasonable, or cannot be supported having regards to the evidence, or that the judgement or order of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice.
A retrial after an acquittal is permitted in other jurisdictions and The Law Commission in England reports in the Consultation Paper 156;
In Finland, on the other hand, any criminal proceedings can be reopened if an acquittal has been obtained through fraud; and an acquittal of an offence punishable with two years Imprisonment can be reopened if new evidence becomes available which, had it been available at the trial, would in all probability have led to a conviction.
Within Europe Double Jeopardy is embedded within statute. Protocol 7 of ECHR, Article 4 provides that:

(1) No one shall be liable to be tried or punished again in criminal
Proceedings under the jurisdiction of the same State for an offence
For which he has already been finally acquitted or convicted in
Accordance with the law and penal procedure of that State.

(2) The provisions of the preceding paragraph shall not prevent the
Re-opening of the case in accordance with the law and penal
Procedure of the State concerned, if there is evidence of new or
Newly discovered facts, or if there has been a fundamental defect in
The previous proceedings, which could affect the outcome of the case.

It is the application of section (2) upon which I seek to secure my argument that in light of fresh evidence the maxim of double jeopardy may be overlooked for the benefit of achieving justice.
A common theme in all of the law reviews we have discussed is the existence of a high profile homicide case which generated public outrage and led to legal challenges to their criminal justice systems. Do we (in Scotland) have to wait for someone to publically voice their concerns over a wrongful acquittal in order to justify making changes which might bring the guilty to justice? Are we so naive as to profess that our criminal justice system is perfect and all of those acquitted are innocent? An innocent person would have nothing to fear from any new discoveries of evidence in the future, yet paradoxically a guilty person would. I argue that the justification for the amendment to the Law in Scotland can be found, in the rationale of the decisions in the courts of other jurisdictions that have already considered the arguments and implemented an exception into their criminal justice systems.
Chapter five
The Scottish Law Commission Discussion Paper 141
The main focus of my examination of this discussion paper is specifically in relation to the proposal of an exception to double jeopardy in cases where fresh evidence becomes available following an acquittal for homicide. On 20 November 2007 the Scottish Law Commission were set the task under section 3(1) (e) of the Law Commissions Act 1965 by the Secretary for Justice Mr Kenny MacAskill MSP following the collapse of the World’s End Case to amongst other remits, “consider the law relating to the principle of double jeopardy, and whether there should be exceptions to it.” MacAskill says, “It is no threat to our justice system to reappraise historic principles such as double jeopardy. It is to ensure that our law remains fit for the purpose in the modern age.” The purpose was to “ensure an appropriate balance between the rights of the accused and the ability of the crown to prosecute in the public interest.” The contents of the discussion paper included addressing areas such as res judicata, the risk of wrongful conviction, the effect of the police and prosecutors, the distress caused to the accused and their families. The ambit of the discussion paper was to discuss the topic of double jeopardy. Mr MacAskill asked the commission to address;
Judicial rulings that can bring a solemn case to an end without the verdict of a jury, and the rights of appeal against such; the principle of double jeopardy, and whether there should be exception to it, admissibility of evidence of bad character or of previous convictions, and of similar fact evidence, and the moorov doctrine, and to make any appropriate recommendations for reform.
For this purpose of this paper we will only address the possibility of an exception. Acknowledging the value and importance placed on ‘thole assize’ in Scotland the Law Commission adopted the position that “Given the fundamental importance of the rule against double jeopardy, we suggest that it would be necessary to find some substantial justification for such a departure from the current position: some compelling evidence that significant numbers of factually guilty persons are escaping justice because of the rule.” They provide figures for 35 English cases where the Crown would re-examine if new evidence became available yet fail to provide any Scottish statistics. The discussion paper acknowledges the value placed by the commission on achieving a balance between public interest in the “efficient and effective prosecution of crime.”

Public interest in finality in legal proceedings, criminal as well as civil…public interest in recognising and maintaining the right of the innocent citizen who has been acquitted of a crime to carry on with his life free from the risk of repeated prosecution.

Surprising though there is no emphasis placed on the rights of the victim or victim’s families or any mention of guilty people evading justice. The Commissions view is that there we need to be a “substantial justification for a departure from the current position.” However they do acknowledge that advancements of technology such as DNA offers justification for the creation of an exception to double jeopardy and may allow cases of acquittals to be retried.

The commission places little weight on the two cases recently raised under the English Criminal Justice Act 2003 as only one resulted in a successful prosecution and continues to outline the precarious position every accused person now finds themselves following the enactment of the Criminal Justice Act 2003 where each free man now might be uncertain as to their future if new and fresh evidence becomes available. The commission infers that this renders citizens in England, Wales and Northern Ireland unprotected from harassment by the police or the crown. “The protection which the rule previously conferred upon the acquitted person is substantially diminished.” I argue that this is not convincing and that there is no evidence of this. The Commission affirm that no cases are known to them by which an accused person was acquitted and yet is in fact guilty and welcomes comments with regards to this. Perhaps the Scottish Law Commission might have asked the Crown Prosecution Service or the Police for this information before publishing this document. I find this lack of information disappointing and look forward to the consultation process.

From my own research gathered from The Scottish Government National Statistics Publications for Scotland there were 797 persons indicted on charges of homicides in the periods 2003-2008. The discussion paper suggests that no-one has indicated a dissatisfaction with the quality of acquittals and if we are to accept the scanty presentation of the Scottish law commission discussion paper then we must draw an inference that in each of the convictions and acquittals for all of these homicides ‘justice’ was achieved and all of the guilty parties were correctly convicted and all of the innocent parties released .Freidland suggests that “An obvious result of the rule of double jeopardy however that occasionally guilty persons will escape justice. But this is inevitable in any system of justice and one cannot tell in advance whether a particular accused is within this class” This does not appear to be the case as fresh evidence is currently being considered in the Scottish courts in homicide cases but only in cases where a conviction was secured.
The Scottish Law Commission’s discussions paper no 141 focuses on the history of double jeopardy, the general principles of its application and they consider the law reviews of other jurisdictions. They also examine the first application of the exception rule in the recent case of R v Dunlop and R v Meill under the English Criminal Justice Act 2003. .In both cases the accused had been tried and acquitted and some time alter made subsequent confessions to the murders thus constituting fresh evidence in both cases. With the implementation of the exception in England only one of these convictions were secured. The Scottish Law commission asked at paragraph 7.14 “Should there be an exception to the rule against double jeopardy on the basis of new evidence” and continued on to discuss restrictions to any exception in terms of what offences might be applicable, what time limit should apply and if this should take effect retrospectively, what evidence would constitute as “new” and how should this system work procedurally”.
As this matter is still ongoing we cannot determine what the outcome might be at this stage however I would hope it would reflect our nation’s acknowledgement of the law reforms in other jurisdictions and allow an exception for fresh evidence to be created.
Chapter six
In conclusion, we established ancient concepts ‘justice’ and ‘freedom’ within our societal values. We considered the justifications for having a protection against the perpetual persecution by means of repeated trials, the threat of distress, a limit on the abuse of powers and the finality of judgement. In each of these arguments I attempted to persuade the reader that as obstacles they are not in surmountable. I argue that the criminal justice system is unbalanced and favours the accused rather than the victims. The law fails to address the needs of the victim’s families and the ultimate goal of any criminal justice system; which is the conviction and punishment of the guilty. We looked at law reform historically and in other jurisdictions and we have looked at the discussion paper produced by the Scottish Law Commission which appears to only ‘pay lip service’ to the demands of the legislature whilst failing to address fundamental issues such as the number of wrong acquittals or cases to which the Crown prosecution service might feel it important to re examine in the event that new and compelling evidence become available.
I have outlined the development in technology and offer DNA as a justification for an exception to double jeopardy to be made in support of justice for all, the innocent and the guilty. Other jurisdictions have amended their law and my argument is that we should not wait until a high profile case occurs. We should value the changes made in other jurisdictions and be pro-active in Scotland. The creation of an exception to double jeopardy is a welcome one in Scotland and one which attempts to correct errors and allows science to assist us in the project of securing justice for our citizens and would place more value on the victims. If, as the Scottish Law Commission suggests there are ‘no cases of error and no-one who has been acquitted is guilty, then no fresh evidence will emerge and use of the exception will be rare.

Honours Dissertaion submitted by Michelle Hynes-Mcilroy LLB (Hons)
Supervised by Dr Fiona Leverick
University of Glasgow
School of Law

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