Lord McCluskey's piece on looking again at double jeopardy ... and this from the man who was resisting any reform of law, the judiciary, the legal profession, and access to justice
The Scotsman reports :
It's time to look again at double jeopardy rule
LORD McCLUSKEY
'HARD cases make bad law," so they say. But the World's End case could make the law better. The justice minister has announced a review by the Scottish Law Commission of aspects of Scots Law that were thrown into relief by the sudden and unexpected collapse of the World's End murder trial, following Lord Clarke's decision that the accused had "no case to answer" because the evidence led by the Crown was deemed "insufficient".
The commission will study, among other practices, the double jeopardy rule, the admissibility of evidence about the accused's previous convictions and the question as to whether the Crown should be able to appeal against a judge's ruling of "no case to answer" (it has also been decided to ask the commission to examine what lawyers call the Moorov doctrine, though it is not clear what it has to do with what happened in the World's End case).
The so-called double jeopardy rule (Scots Law has a different name for it) means that, once a person has been brought to trial for a crime and acquitted, he cannot be tried a second time for the same offence. Just like the rule that prevents the jury from being told - except in very special and carefully defined circumstances - about an accused's previous convictions, the double jeopardy rule is very old: and it is regarded by many as an irremovable cornerstone of justice. Is that a good reason for not changing such rules? I think not. It's time to put a few sacred cows out to grass.
You don't have to go far back to find that numerous rules of law, including rules about procedure and evidence, as well as basic substantive laws, have been dramatically changed. The legal landscape has, in a few decades, changed as much as the frontage of Princes Street - often for the better but sometimes, like Princes Street, for the worse.
Procedurally, for example, it is only recently that a judge was given the power to decide that there was "no case to answer" once the Crown had led all its evidence. And it was only recently that the law was changed to permit the Crown to bring a second prosecution, if the court allowed it, when a conviction was quashed on appeal for what are sometimes called "technical reasons", such as a mistake by the trial judge.
As to the substantive law itself, adultery used to be a crime. So was homosexual intercourse between consenting adult males until some 40 years ago - though it was known to be practised in some quarters of society (hence the story of the new young English judge seeking guidance on sentencing by asking a senior colleague: "What do you usually give for sodomy?" and getting the reply: "Five guineas and a bunch of roses"). How times have changed!
In short, one essential feature of a democratic society is that we allow parliament to change the law as circumstances and social attitudes change. The Scottish Law Commission is an excellent instrument for scrutinising suggested changes away from the screaming headlines that try to turn hard cases into bad law.
Should parliament reconsider the double jeopardy rule? We have already made substantial inroads into it by giving the court power, when quashing a conviction, to authorise the Crown to bring a fresh prosecution. And, since the Criminal Appeal Court was set up 80 years ago, we have created greatly expanded grounds of appeal for those convicted by a jury. Appeals can now proceed on the basis of new evidence or because the defence botched the job of defending the accused. Since 1998, the Scottish Criminal Cases Review Commission has been able to open up grounds of appeal even after the first - and traditionally final - appeal has been rejected.
Given such changes, mostly in favour of the accused, there is something to be said for balancing the justice system by giving the Crown the right to go to the court and ask for permission to serve a new indictment on an accused whom a jury has previously acquitted.
If the court considers that the new basis for prosecuting is valid (for example, that new forensic techniques have enabled old evidence to be better understood), and if the court is satisfied that the prosecution is not being vindictive or oppressive, then why not?
Should we allow the Crown to appeal against a single judge's decision that there was "no case to answer" - so as to enable the case to go to the jury? That's what people nowadays call a "no-brainer". Of course, the Crown should be able to appeal: and the court should regulate its timetable so that the appeal can be dealt with within 48 hours. People don't understand why a judge's ruling, preventing the jury from hearing the whole evidence, should be sacrosanct and unappealable. My own view goes further: I believe that we should abolish altogether the "no case to answer" procedure, which we imported from England in 1980.
Placing an accused's previous convictions before the jury is a difficult one. In principle, a person should be convicted only on the basis of the direct evidence. When a child is molested and assaulted, the police naturally consult their files to see who has "form" in this field. If the person they decide is the culprit comes to court, and the jury learn of his record, then they are halfway to accepting he committed the crime with which he is now charged. The recent case of Stefan Kiszko, pressured to confess to a crime that he did not commit, for which he served 16 years in prison, because the police thought he fitted their picture of the culprit, must make us pause for thought. In Scotland, we recall the notorious case of Paddy Meehan, who was wrongly charged and convicted because he had analogous criminal form. If we start hanging dogs just because they have a bad name, we undermine justice itself.
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