Friday, September 14, 2007

Double jeopardy in the spotlight as Crown Office struggles with account of World's End case collapse

To prosecute someone for the same offence twice or not ... how mane times do the Crown Office need to prosecute someone ?

The Herald reports :

Experts divided on merits of double jeopardy


Legal experts in Scotland were divided last night over the merits of following England's lead on double jeopardy in the wake of the World's End trial collapse.

The centuries-old legal principle of not prosecuting someone twice on the same charge was abandoned in England and Wales after a concerted campaign by the mother of a murder victim - and in the teeth of opposition from civil rights campaigners.

Ann Ming discovered the decomposing body of her daughter, Julie Hogg, 22, behind a panel in her bathroom, 80 days after she was reported missing in November 1989.

Mrs Ming sat through two trials in which juries failed to convict Billy Dunlop, Ms Hogg's former boyfriend, who was identified as the prime suspect by scientific evidence.

He walked free but was jailed in 1998 for a savage attack on another former lover.

In jail, Dunlop confessed to a prison warden to having killed Ms Hogg. He strangled her in a fit of rage after she made fun of injuries he sustained during a fight at a party. He later confessed to police and was sentenced to serve six years after admitting perjury at Teesside Crown Court in 2000.

But under the 800-year-old law of double jeopardy, prosecutors were unable to try him again for murder.

The principle was removed from English law in 2005 by reforms introduced by the then home secretary, David Blunkett, after a 15-year campaign by Mrs Ming. At Dunlop's trial in 2006, he pled guilty to murder and was jailed for life.

Another catalyst which prompted the change was the McPherson inquiry into the murder of black teenager Stephen Lawrence, which recommended scrapping the ancient legal principle. That view was backed by the Law Commission in 2001.

The reforms meant that serious crimes - including rape, murder, Class A drug offences and war crimes - could be re-tried if "fresh and viable" evidence came to light.

Civil libertarians feared that abolishing the double jeopardy principle, which is inscribed in most western legal systems and is contained in the Fifth Amendment of the US constitution, would seriously undermine a cornerstone of the UK's justice system.

In Scotland, double jeopardy was abolished in 1995 for cases of a less serious nature which are decided by a sheriff, but retained in more serious cases, or solemn cases, heard by a jury.

Professor Christopher Gane, an expert in Scots law and vice chancellor at Aberdeen University, said he was relaxed with the principle of allowing a retrial if fresh evidence emerged - as happens with appeals against wrongful convictions. He also said there may be merit in allowing a retrial of Angus Sinclair if new evidence emerged.

But Mr Gane warned that such a move should be accompanied by rigorous safeguards to ensure that people were not found "guilty by attrition".

He said: "What we need to guard against is moving into an almost automatic view that, if someone is acquitted, the public prosecutor has done wrong and must reopen the case. Retrials could become a way of correcting mistakes in bringing the original case and saving the prosecutor's face."

However, John Scott, a solicitor-advocate and leading human rights lawyer, said he was opposed to any move to abolish double jeopardy, which he said was a "knee-jerk" reaction which would increase the risk of miscarriages of justice occurring "My concern is that, south of the border, the right to retry someone gives incredible powers to the police and investigative authorities," he said.

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