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THE DOUBLE JEOPARDY (SCOTLAND) BILL:

a response to the Scottish Parliaments Justice Committee

Summary
The rule against double jeopardy has stood in legal systems across the world for centuries. It is based upon the principle of finality: that society as a whole has an interest in the final judgements of the courts being treated as conclusive. If the decision is taken to qualify the rule then there must be a sufficiently strong case to justify such action.We note the arguments put forward in respect of cases where a confession has been made, but this is not a new situation and there is no obvious reason why the law should be changed at this time.While DNA and other advances in science and technology introduce new forms of evidence, even DNA evidence cannot be regarded as axiomatically definitive and beyond some very specific circumstances, the case for making an exception to the rule is as weak as it ever was. We do not consider that a convincing case for the reform of double jeopardy has been made. We are of the view that the proposed distinction between the treatment of a confession and that of other forms of new evidence is neither realistic nor useful. It is more likely that the accused makes an admission which, whilst it is not a confession, makes a critical difference to the proof of guilt when it is taken along with other evidence.To observe a distinction between the treatment of a confession and that of such admissions seems artificial. It would have the unfortunate consequence that the latter could be used only where new evidence could be used, that is, for example, only in regard to certain offences. Self-incriminating statements by an accused should be treated in the same way as other instances of new evidence which may justify qualifying the rule against double jeopardy. We recognise that there is popular disquiet when new evidence appears unequivocally to demonstrate guilt, carrying the risk that confidence in the justice system will be undermined as justice is seen not to have been done. However, there must be recognition that the justice system does not and cannot deliver perfect results.The cost of maintaining the integrity of the system and upholding the principle of finality is that a proportion of the guilty are acquitted and cannot be re-tried. We agree that evidence should be regarded as new only if it was not, and could not with the exercise of reasonable diligence have been, available at the original trial. However, when considering the test to be applied in assessing new evidence, the RSE would highlight that the current formulation appears to exclude evidence which was available at the time of the original trial but was not led by the prosecution because its significance could not have been recognised until new evidence came to light. It may be preferable to proceed on the basis that the prosecutor should have only one opportunity to exercise his judgement as to the evidence which is significant, but it should be noted that this may restrict the use of new evidence in some cases. We are of the view that it is inappropriate to expect the Court to make judgement on whether it would be highly likely that a jury would have convicted.We suggest that it would be sufficient if the Court is satisfied that the jury would have regarded the new evidence, together with evidence at the trial, as compelling evidence of guilt. If an exception to the rule against double jeopardy is to be made this should apply only to the offences of murder and rape.Any broader list of exceptions will tend to undermine confidence in the finality and quality of the criminal justice system. We have strongest objection to permitting the Scottish Government to add to the list by way of affirmative order, effectively allowing for the exception to be applied to any unusual high-profile case. It has been said that the proposed changes will only apply to a small number of cases.This is highly unpredictable, particularly given the potential for significant pressure from victims, their relatives, support groups and indeed the media to bring an individual to a second trial. Opinion on whether the new evidence exception should be applied retrospectively is divided. In any case, we are in favour of all exceptions against the rule of double jeopardy being treated equally, whether this means that all should be applied retrospectively, or none.
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Introduction
1 The Royal Society of Edinburgh has previously commented on the proposed reforms to the rule against double jeopardy, in a response to the Scottish Governments March 2010 consultation paper1. It now welcomes the opportunity to comment on the Double Jeopardy (Scotland) Bill as introduced to the Scottish Parliament on 7 October 2010.As the Justice Committee will no doubt appreciate, many of the comments that we provided earlier to the Scottish Government are directly relevant to this call for evidence. The rule against double jeopardy, preventing a person from being put in jeopardy of criminal prosecution twice for the same offence, applies in legal systems across the world. It is supported by a number of rationales.At its heart lies the principle of finality, which is a matter of public policy.As the Scottish Law Commission (SLC) pointed out in its discussion paper on the issue2, society has a general interest in the final judgments of the courts being treated as conclusive (paragraph 2.30). Linked to this is the importance of the integrity of the relationship between the citizen and the state (paragraph 2.32). These considerations by themselves justify the rule against double jeopardy.To them may be added further considerations, of avoiding continued anxiety and insecurity to acquitted persons (paragraph 2.29) and avoiding highly selective, populist campaigns for re-trial. In recognition of the foregoing principles underlying the rule against double jeopardy, we have reservations about the creation of any exception to it.The fact that this rule has been well recognised and respected for centuries does not mean that it should be immune from scrutiny, but is there a sufficiently strong case to justify change? The Scottish Government suggests that advances in science and technology, such as DNA and enhanced photo imaging, can obtain unequivocal evidence of guilt that previous generations would never have thought possible. It is important to note however that there are serious concerns amongst scientists about the extent to which such evidence can be presumed to be unequivocal. Moreover, there seems to be little likelihood of such discoveries in cases where the accused has been acquitted after the proposed legislation has come into force, and even if the exception is to be applied retrospectively none of the responses to the SLCs discussion paper identified any existing cases to which it would apply. 5 Instances where the accused confesses after his acquittal are likely to be rare and in any case this is not a new situation.The case for making an exception to the rule in this case appears to be as weak as it ever was.There are good reasons why the rule against double jeopardy has stood for centuries and a decision to qualify it must be based on thoroughly considered and carefully balanced arguments.We do not consider a convincing case for the reform of double jeopardy has been made. It has to be recognised that the criminal justice system is neither actually nor potentially perfect. It has always been recognised that a proportion of the guilty will be acquitted (and an even greater proportion will never be charged). Imposing new burdens on a system which is already overloaded requires strong justification.There will be public concern when an acquitted person subsequently flaunts his guilt, or when scientific developments make new kinds of evidence available, but we do not see that the scope to do anything about this in practice justifies qualifying this fundamental rule. If, nevertheless, the Scottish Parliament considers that the maintenance of public confidence requires change of this sort, then we put forward our comments below for consideration. It has been said that the proposed changes will affect only a small number of cases.We are wary of this claim which has an uncertain basis. It is impossible to predict how widespread the use of the anticipated exceptions will become, particularly bearing in mind that there may well be significant pressure from victims, their relatives, support groups and indeed the media to bring an individual to a second trial. Qualifying the rule against double jeopardy is a serious step, one that must not be taken lightly.There is a fine balance between undermining the integrity of the justice system by exposing individuals to the risk of a second prosecution and strengthening it by ensuring that the public see justice as having been done. If the Scottish Parliament are to proceed with such a change, there must be a cogent and thoroughly considered argument to support this.This also affects the conditions for the applications of such a change.

The rule against double jeopardy

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Exceptions to the rule against double jeopardy

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An exception where an acquitted person subsequently confesses to the offence

9 We have reservations about the distinction drawn between the treatment of a confession and that of other forms of new evidence. It is said that the accused who confesses should forfeit the equitable justification for the rule against double jeopardy. For such cases it is proposed that the legislation should apply to any crime or offence.

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http://www.royalsoced.org.uk/govt_responses/2010/AD10-08.pdf http://www.scotlawcom.gov.uk/law-reform-projects/completed-projects/double-jeopardy/

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10 We are not persuaded that this difference in approach is realistic or useful. First, not all cases of a post-acquittal confession by an accused mean that his defence has been dishonest. He may simply have put the prosecutor to the proof of his guilt without challenging the credibility of the evidence which was said to have incriminated him. Secondly, to accord special treatment to cases of post-acquittal confessions is artificial.As we have already said, such cases are likely to be rare. Less infrequent may be cases in which the accused makes an admission which, while it is not a confession, makes a critical difference to the proof of his guilt, when it is taken along with other evidence. He may, for example, disclose that he was at the scene of the crime at the time of its commission, or that he had hidden a weapon which can be shown to have been used in the commission of the murder. 11 To observe a distinction between the treatment of a confession and that of such admissions seems artificial. It would have the unfortunate consequence that the latter could be used only where new evidence could be used, that is, for example, only in regard to certain offences. Self-incriminating statements by an accused should be treated in the same way as other instances of new evidence which may justify qualifying the rule against double jeopardy. 12 There are concerns about the proposal that the later discovery of pre-trial admissions should be a ground for a retrial. Given the unsatisfactory nature of confessions as evidence, as set out above, and in the interest in the finality of the courts ruling, it may be preferable that only post-trial confessions should be relevant. of evidence which has come to light since the acquittal of the accused.

An exception where new evidence of guilt emerges 13 We can see the argument that there may be popular demand for a person to be tried when evidence emerges as to his guilt even where he has previously been acquitted of the charge.Advances in DNA evidence may lead the public to conclude that there is now technology available that is able to give a degree of certainty that ties an individual to a crime or crime scene. Where this certainty exists, public opinion may not, generally, find it acceptable that the individual can be protected from prosecution. It may be said that there is a risk of confidence in the justice system being undermined. 14 Greater public awareness of the administration of justice is of benefit, but it carries the risk of unrealistically high expectations that the system can deliver perfect results. Clearly the views of the public cannot merely be dismissed.There are, however, many, including those within the justice system, who hold deep reservations about creating an exception to the rule against double jeopardy, even in these circumstances.The immediate concern is that the rule must remain a priority in order to preserve the integrity of the justice system.There is also concern that advances in science are being used to open the door much more widely to any type

Conditions for the use of new evidence as an exception 15 In accordance with the recommendation made by the SLC, the draft Bill (s4(6)(a)) states that evidence will be considered as new for the purposes of a second trial where the new evidence was not available, and could not with the exercise of reasonable diligence have been made available, at the trial in respect of the original offence. 16 This definition of new evidence rules out the ability of the prosecution to rely on evidence which was available at the time of the original trial but which it did not lead for tactical reasons. 17 We agree with this definition of new evidence. It has, until now, been widely accepted that the prosecution should have one opportunity to make the case against an individual based on the evidence available.This evidence must be sufficient, of course, to warrant a trial in the first place. It is undesirable that new evidence should include evidence which should have been, but was not, obtained or examined in the course of police investigation or the preparation of the prosecution case. New evidence should be defined with at least the same restrictions as apply to the appeals against convictions. 18 We would point out, however, one of the possible consequences of this formulation. It appears to exclude evidence which was available at the time of the trial but has assumed significance only because of the new evidence. For example, if after the acquittal a murder weapon is discovered and is found to bear traces of the accuseds DNA, it would not be possible for the prosecutor to use evidence as to the accuseds DNA if at the time of the original trial it had been available but was regarded, correctly, as of having no bearing. On balance it may be preferable to proceed on the basis that the prosecutor should have only one opportunity to exercise his judgement as to the evidence which is significant, but it should be recognised that under the terms of the current draft Bill, this situation could arise. 19 We would also comment on s4(6)a of the draft Bill, stating the condition that the case against the accused is strengthened substantially by the new evidence. We are in no doubt that it is not enough that the case against the accused is strengthened substantially by the new evidence. By itself this would open the door to a second trial where the original case was very weak. 20 With regard to s4(6)(c), we consider that it is impractical and inappropriate for the Court to have to decide whether a reasonable jury would have convicted.The expression highly likely implies a highly subjective approach.We would suggest that it would be sufficient if the Court is satisfied that a reasonable jury, properly instructed, would have regarded the new evidence, together with evidence led at the trial, as compelling evidence of guilt.
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The range of offences to which an exception where new evidence emerges should apply
21 It is widely accepted that any new evidence exception should apply only in the most serious of cases.The SLC noted that there is no direct, objective and uncontroversial test of seriousness, and recommended that the exception should only be applied to the offences of murder and rape. 22 We note that the United Kingdom Parliament, in passing the Criminal Justice Act 2003 for England and Wales, adopted a significantly broader list of crimes to which such an exception can apply, including a range of sexual offences, drug and criminal damage offences. We also note that Schedule One of the draft Bill similarly sets out a wider list, incorporating a range of sexual offences. 23 We agree with the SLCs recommendation and suggest that murder and rape should be the limit of the offences to which the exception would apply. It may be noted that, along with treason, they are the Pleas of the Crown, which can be prosecuted only in the High Court.While anecdotal evidence from England and Wales suggests that the actual number of cases brought to second trial is small, the extent of the list adopted under the 2003 Act would, in our view, tend to undermine confidence in the finality and quality of the criminal justice system. 24 We previously voiced the strongest objection to permitting the Scottish Government to add to the list by way of affirmative order, effectively allowing for the exception to be applied to any unusual high-profile case. It is contrary to sound constitutional principle that the Scottish Government should be entitled to change the substantive law in this way. While noting that the draft Bill prohibits Scottish Ministers from using this power to permit a double jeopardy retrial in a case where the offence was not on the list at the time of the first trial, we continue to advocate that if widening the list is to be considered then this should only be done through primary legislation. 26 The SLC recommended that an exception on the basis of new evidence should not be retrospective, on the grounds that an accused who was tried at a time when a second trial was not permitted should have the right to be confident that his acquittal was indeed final.There is significant support for this position. In principle criminal legislation should not be retrospective. Nevertheless, it may be questioned whether a second trial on scientific evidence should be ruled out merely because the acquittal was on the day before, rather then on the day after, the enactment of the legislation. 27 We have previously stated our reservations about the distinction drawn between an exception based on the admission of guilt and that based on the emergence of new evidence. For this reason we are in favour of all exceptions to the rule against double jeopardy being treated equally, whether this means that all should be applied retrospectively, or none.We note that the most likely candidates for retrial will be historic cases where DNA or other scientific advances now fairly conclusively prove guilt. Nevertheless, we also note that the SLC, during its own consultation on double jeopardy, was not made aware of any cases in Scotland in which a second trial would be pursued should the proposals be applied retrospectively.

The human rights implications of the Bill

28 We do not consider that of themselves the provisions in the Bill offend against human rights, such as those to which Article 8 of the ECHR relates.That is not to say that questions of human rights could not arise in individual cases. It would be for the High Court in such cases to take these matters into account when considering the exercise of the powers granted under the provisions of the Bill.

Additional Information and References

This paper has been prepared on behalf of Council by an expert group of Fellows and signed-off by the General Secretary on behalf of the Society.
Any enquiries about this submission and others should be addressed to the RSEs Consultations Officer, MrWilliam Hardie (Email: evidenceadvice@royalsoced.org.uk)

Retrospective application of exceptions to the rule against double jeopardy

25 The draft Bill currently allows for the retrospective application of exceptions to the rule against double jeopardy whether that be due to the original acquittal being tainted, an admission of guilt, or the emergence of new evidence.The question of whether exceptions should be applied retrospectively is a difficult one, and one on which opinion is divided.

Responses are published on the RSE website (www.royalsoced.org.uk).

Advice Paper (Royal Society of Edinburgh) ISSN 2040-2694

The Royal Society of Edinburgh (RSE) is Scotlands National Academy. It is an independent body with a multidisciplinary fellowship of men and women of international standing which makes it uniquely placed to offer informed, independent comment on matters of national interest. The Royal Society of Edinburgh, Scotland's National Academy, is Scottish Charity No. SC000470
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