S2M-5613 Criminal Law (Double Jeopardy)

Scottish Parliament

Thursday 22 February 2007

[THE DEPUTY PRESIDING OFFICER opened the meeting at 09:15]

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Criminal Law (Double Jeopardy)

The Presiding Officer (Mr George Reid): The next item of business is a debate on motion S2M-5613, in the name of Annabel Goldie, on double jeopardy.

10:29

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11:26

Stewart Stevenson (Banff and Buchan) (SNP): The internationally recognised legal principle to which Mike Pringle referred is ne bis in idem, which, in England, of course, is now ne ter in idem, although it is known by the French phrase autrefois convict—I do not know what the French equivalent for ne ter in idem would be.

The debate has been interesting because there is a consensus that this is a subject that is worth debating. We should all welcome that. A variety of views has been expressed and I will digest them at leisure rather than addressing them in the four minutes that are available to me.

What England has done is certainly interesting. It has restricted to a narrow range of offences the ability to bring someone back for a new trial. Were changes to be made in Scotland, I think that there would be broad agreement that it would be necessary to restrict the offences for which a retrial might be sought.

It is interesting to hear a debate about the three Scots verdicts. I wonder, in a ruminative way, whether juries might be allowed to say, "Not proven, because we think that you should be capable of being retried." However, I suspect that, unfortunately, juries would probably say that all the time.

To Brian Adam, I say that we must not confuse someone being found not guilty with their being found innocent. If someone is found not guilty, it simply means that the required standard of proof has not been achieved. Further, in Scotland, it might simply be the case that eight jurors have decided in favour of one side of the argument and seven have decided in favour of the other side. Sometimes, verdicts can be quite finely balanced.

We could tackle the problem in other ways. For example—and I give this only as an example, not as a proposal—we could change sentencing law so that, if there were to be a prosecution on another matter arising from a trial, which could be shown to have affected the verdict of that trial, the sentence for the second offence could be equivalent to that which might have been passed for the first offence.

Gordon Jackson: Will the member give way?

Stewart Stevenson: I do not have time—in any case, in giving the example I am just flying a kite.

In civil law, of course, in many instances people can come back for a second bite of the cherry.

I suspect that things are not quite as clear cut as we might imagine if we were to go by some of the speeches that we have heard.

As a result of its consultation exercise, on which many Scottish lawyers and legal bodies commented, the Law Commission in England made a number of important recommendations. For example, evidence that was inadmissible in the original trial should continue to be inadmissible. If we were to make any changes to the system, we would want to consider that point. The Law Commission also pointed out that, in England, it is possible to retry when there is a tainted prosecution and recommended that that provision should be slightly extended to cover cases in which not only the jury but the prosecutor or the judge has been subject to external pressure.

In Scots law, what is proposed by the Tories can already happen: under a treaty between the United States of America and the UK, someone who is acquitted here can be extradited to the USA and tried for the same offence because there is no requirement to show cause. That is just a bit worrying.

11:30