Double jeopardy reforms
08/10/2010A Bill to reform the centuries-old law which prevents a person being tried twice for the same offence in Scotland has been introduced.
The ‘double jeopardy’ principle dates back over 800 years, but questions have been raised in recent years about whether the law now needs to be updated for the 21st Century.
Justice Secretary Kenny MacAskill said there is a ‘strong case’ for modernising the current law and, following a consultation with Scotland’s legal profession, the public, victims and their families earlier this year, has taken formal steps to now make the legislative changes required.
The Justice Secretary also announced that the Bill will go further than previously proposed by the Scottish Law Commission (SLC).
The SLC had recommended that any changes on new evidence should only apply to murder and rape cases. However, the Bill goes further and also includes the offences of culpable homicide and serious sexual offences, including those against children.
It is not proposed to remove the rule – double jeopardy is a fundamental principle of Scots law which provides essential protection against the state repeatedly pursuing an individual for the same act.
However, the Bill proposes that certain exceptions should apply. The key elements of the Double Jeopardy (Scotland) Bill are:
Restating and clarifying the ancient law on double jeopardy, removing the anomalies and uncertainties identified by the Scottish Law Commission in its 2009 Report on double jeopardy.
Allowing a second trial where, after an acquittal, compelling new evidence emerges to substantially strengthen the case against the accused.
Allowing a second trial where the original trial was “tainted”, e.g. by intimidation.
Allowing a second trial where, after an acquittal, evidence becomes available that the acquitted person has admitted committing the offence.
To permit the prosecution of a person on a more serious charge where the victim has died after the original trial (e.g. on culpable homicide, rather than serious assault).
Any changes to the double jeopardy law will be retrospective and apply to old cases.
Mr MacAskill said:
“The principle of double jeopardy dates back over 800 years, but we now live in a very different world and it is clear that the law needs to be modernised to ensure that it is fit for the 21st century.
“In this day and age, people shouldn’t be able to walk free from court and subsequently boast with impunity about their guilt. If new evidence emerges which shows the original ruling was fundamentally flawed, it should be possible to have a second trial. And trials which are tainted by threats or corruption should be re-run.
“Prosecutors should not have their hands tied, and this Bill will ensure that in such cases there will be no escape from justice.
“There is a growing consensus across Scotland that reform is needed and needed now, and we have acted swiftly in the interests of Scottish justice, victims and their families.
“I look forward to the Bill going through the proper Parliamentary process and hope that MSPs of all political persuasion come together to back these important and truly historic changes to Scots law.”
On November 20, 2007 the Cabinet Secretary for Justice, Kenny MacAskill MSP, asked the Scottish Law Commission to consider the principle of double jeopardy, whether there should be exceptions to it and to make any appropriate recommendations for reform.
The SLC published its Report on double jeopardy in December 2009 having previously published a Discussion Paper and conducted its own consultation exercise in early 2009.
The Government launched a consultation exercise based upon the SLC’s proposals in March 2010. The consultation paper is focused the question of whether there should be an exception to the rule against double jeopardy in cases where important new evidence has emerged following the original trial.