Scottish Law Commission Report on Double Jeopardy

The Scottish Law Commission recently published their report on the issue of the double jeopardy rule. This is, of course, the rule that prevents someone facing trial again for a matter in respect of which they have been acquitted.

It seems to be the position that the Crown became anxious to have this matter reviewed after the acquittal of Angus Sinclair for the so called World’s End murders. England has already legislated on the matter allowing accused to be retried in certain specific circumstances. Since the change in their law in 2003 there have been six prosecutions resulting in three convictions.

The SLC have recommended that the rule remain as at present and that there should be no retrials where an accused has been acquitted. However they do only make recommendations and seem to acknowledge that Parliament may well ignore their views and legislate accordingly. Indeed the Justice Secretary has indicated that legislation will follow.

It seems likely that the type of case will be restricted initially to murder and rape. The SLC are recommending that even if there is legislation that it does not have retrospective effect. If Parliament agrees then that would mean it would have no effect on Angus Sinclair, or anyone else who has been acquitted to date. It will be necessary for there to be some Judicial hurdle for the Crown to pass in order to have permission to reindict. One assumes that will involve the discovery of significant new evidence which it would not have been possible to lead at the original trial.

The Report has produced a lot of comment from various sources. However, assuming that any legislation is not retrospective, it is quite difficult to imagine situations where it could be used. There are no obvious scientific advances in the pipeline of which I am aware and acquitted accused are, in my experience, unlikely to go on to admit their involvement in these crimes. Therefore whilst the abolition of the rule in certain specified circumstances represents a significant change in the criminal procedure of Scots Law its practical effect may be very limited.

Brian McConnachie QC