S3M-7819 Double Jeopardy (Scotland) Bill: Stage 1

The Presiding Officer (Alex Fergusson): Good morning. The first item of business is a debate on motion S3M-7819, in the name of Kenny MacAskill, on the Double Jeopardy (Scotland) Bill. We have a fair amount of time in hand, so I will not be stopping members unless we are in extreme circumstances. I call Kenny MacAskill to speak to and move the motion.

09:15
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10:37

Stewart Stevenson (Banff and Buchan) (SNP):

I welcomed the Cabinet Secretary for Justice’s referral of this issue to the Scottish Law Commission in 2007. That was an important step in taking forward a matter that we have debated and engaged with in this place for some time.

Of course, the principle of ne bis in idem or, in French, autrefois convict has been in Scots law for some 800 years. It is worth thinking of the kind of world that existed at that time. The English had been conquered by the Normans, but Scotland had yet to face down the substantial challenge that Edward I would bring 100-plus years later. That was a very different world, with a very different approach to legal matters. The fact that the principle has endured over such a lengthy period should put us substantially on notice that it is not a matter to be treated trivially, but one of the utmost seriousness. It has been at the centre point of Scots law—and the law of many other countries—for a very long time.

For me—and, I suspect, for other members—one of the most chilling speeches that has been made to the Parliament was the speech by the Lord Advocate on the World’s End murder case. It was a lengthy speech that left the chamber as quiet as I have ever heard it. There was no fidgeting—there was a stillness among us as we heard the Lord Advocate lay out matters before us in a judicial manner to which we are not used. Those who listened to that statement—some members found it sufficiently disturbing not to stay for the whole of it—will understand the issue that is before us.

Cathie Craigie was absolutely right to focus on issues relating to the victims of crime; I think that she was the first speaker in the debate to do so. The point is not simply to identify someone’s crimes and to ensure that an appropriate punishment is put in place, but to serve the interests of those who have been affected by crime. When considering whether, after 800 years, we should look at the matter again, there are very substantial issues that we must consider.

Having served on two justice committees of the Parliament and having spoken on the subject previously, I see today’s debate as a welcome opportunity to revisit it. Of course, revisitation is the whole point of the bill. It could be argued that it is somewhat strange that trials can be restarted for a variety of reasons up to the point of decision but that cases cannot be revisited thereafter, as decisions are absolute and inviolate. We have now moved beyond the point of accepting that. Equally, we have accepted that it is no small thing to do so. The English example shows us that the criminal justice system and the interests of justice do not collapse when such a measure is introduced. That can give us substantial confidence that it is worth our while proceeding in this way.

Clearly, there are other ways in which the ends of justice can be served. We have observed with varying degrees of interest and engagement the use following a civil trial of the law of perjury for one of the former tenants of these premises. Let us not forget that people are found not guilty—they are not found innocent at any stage, although the presumption is that they are innocent. If someone has been prosecuted and has not been found guilty, there are other ways, one of which is the law of perjury, of serving the ends of justice. Of course, that is not an easy matter with which to deal.

What tests are we putting in place? Are they sufficient and adequate? The hearing that must precede any reprosecution is a very important part of the changes that we are contemplating. For example, all of us recognise that not all confessions are sincerely made. I suspect that there will be instances of people who are clearly engaged in criminality and may already have substantial criminal records embellishing a tale to the point of confessing to crimes that they may or may not have committed, because they are publishing a book or have the opportunity to be paid large sums of money by one of the tabloid newspapers. For that reason—and many others—the hearing process is important, as it will allow us to test whether a reprosecution should be contemplated in the interests of justice. It is equally important that the person who may be subject to a new prosecution has the right to appear and to be represented in it. Those are important provisions in the bill.

We have had some exchanges on the scope of reprosecution; I suspect that we will continue to have such exchanges as the bill proceeds through Parliament. Should it be limited to original prosecutions on indictment, or should it be extended to summary prosecutions? Perfectly properly, Robert Brown said that it was pretty unlikely that evidence would come forward following a summary trial that would have caused the case to be taken on indictment in the first instance, but we cannot exclude that possibility. If we are thinking of the victims, we need to think very carefully about where we strike the balance.

There are some things that are not in the bill that could not, sensibly, be in it, but which it is worth having a think about. For example, should we be able to reprosecute people who have died? That might seem a slightly amusing idea, but the reality is that holding a court case to prosecute someone who is dead—which can be done in other jurisdictions—does, in certain instances, serve the interests of justice and of the victims. However, that is an extremely difficult thing to contemplate and the size of the bill, which at present is relatively modest, would be substantially greater if we were to do so. I mention that just to point out that we should not imagine that we are solving every issue that surrounds double jeopardy.

Robert Brown: I am not quite clear what Mr Stevenson has in mind, but I wonder whether he is thinking of the Megrahi case and the situation whereby the reported death of Mr Megrahi, in due course, would have interrupted the re-review of proceedings. Does he think that that would have given rise to an issue whereby the victims would have been deprived of the opportunity to test the issues before the appeal court, following on from a decision by the Scottish Criminal Cases Review Commission?

Stewart Stevenson: The member cites a perfectly reasonable example; there would, of course, be others.

There are other ways in which the issue can be dealt with, besides having a retrial in a criminal court, but it is clear that victims often do not regard such alternatives as being equivalent to prosecution in a criminal court. Prosecuting someone after they have died is not dealt with in the bill, and I would not wish the Presiding Officer to draw me up too tightly for speaking on a matter that is not strictly before us.

Turning to things that are in the bill, an issue that has been raised relates to acquittals when there has been interference with the jury. Section 2(5) says:

“But the acquittal is not to be set aside if, in the course of the trial, the interference (being interference with a juror and not with the trial judge) became known to the trial judge, who then allowed the trial to proceed to its conclusion.”

Superficially, that looks okay, but the reality is that the effects of that interference might have been greater than the trial judge was aware of at the time at which they allowed the trial to proceed to its conclusion. Those who will take the bill forward might wish to look at that again, if that part of the bill is to be retained. If one juror was nobbled, they may have contaminated other jurors or put other jurors in a state of fear and alarm before they were removed from the trial. The judge may not have been in sufficient possession of the facts to have realised that that had happened. As almost everything that a judge decides can be reviewed elsewhere, to exclude a review of a judicial decision to allow a trial to continue after a juror has been nobbled may be an exclusion too far.

I am conscious that we have a certain amount of time so, if I am permitted, I will proceed to deal with the committee’s report. Paragraph 33 mentions the concerns of the SHRC and the Law Society about what the standard of proof should be. They thought that beyond reasonable doubt should be the standard of proof at the hearing but, of course, that would not necessarily have been the case in the original prosecution. It is important to bear in mind that the procurator fiscal could have considered a lower test—the existence of a reasonable prospect of a conviction.

Paragraph 48 mentions that the SHRC, and John Scott talked about the range of serious offences. As the bill proceeds, it will be important to test that we can combine the trial of new charges with the retrial of old charges in a way that will serve the interests of justice, and I hope that the members concerned will do that.

The committee considered at great length the retrospective application of the bill, which, instinctively—like others—I am not comfortable with. However, in this particular case, I think that it would leave a huge gap in our ability to deliver justice for many people if we were not to have the opportunity to revisit trials that took place in the past.

Earlier, I intervened on Bill Aitken on the subject of extradition, and I think that there remains a substantial issue there. People may be extradited to other jurisdictions in the European Union and to the United States in a variety of circumstances, without there being any necessity to show that there is a case to answer—that is a matter for the jurisdiction to which the extradition takes place. In a case in which someone who has already been found not guilty in a Scottish court is extradited, there is an enduring potential for injustice but, of course, responsibility for the law in respect of extradition lies elsewhere and it is not at our hand to change it.

Section 10(3) relates to article 54 of the Schengen convention, which touches on some of that. I had been aware of the Schengen convention only to the extent that the UK is outside the common travel area that it created, much to travellers’ inconvenience. I will go away and read it to discover what other delights it contains.

I congratulate the Government and all who have pressed for such provisions on the introduction of an excellent bill that will serve the interests of justice and of victims, and which will be a source of great fascination to those of us who are interested in the minutiae of legal legislation.

10:52