Double Jeopardy (Scotland) Act 2011

Double Jeopardy (Scotland) Act 2011
	Scottish Parliament
Long title	An Act of the Scottish Parliament to make provision as to the circumstances in which a person convicted or acquitted of an offence may be prosecuted anew; and for connected purposes.
Citation	2011 asp 16
Introduced by	Kenny MacAskill, Cabinet Secretary for Justice
Territorial extent	Scotland
Dates
Royal assent	27 April 2011
Commencement	28 November 2011
Status: Current legislation
Text of statute as originally enacted

Last updated November 10, 2019

The Double Jeopardy (Scotland) Act 2011 is an Act of the Scottish Parliament which received Royal Assent on 27 April 2011.^[1] and came into force on 28 November 2011.^[2] The Act creates a statutory basis for the rule against trying a person twice for the same crime (known as double jeopardy). The Act also creates three narrow exceptions to this rule.

An Act of the Scottish Parliament is primary legislation made by the Scottish Parliament. The power to create Acts was conferred to the Parliament by section 28 of the Scotland Act 1998 following the successful 1997 referendum on devolution.

Double jeopardy is a procedural defence that prevents an accused person from being tried again on the same charges following a valid acquittal or conviction. As described by the U.S. Supreme Court in its unanimous decision concerning Ball v. United States 163 U.S. 662 (1896), one of its earliest cases dealing with double jeopardy, "the prohibition is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial."

Following the acquittal of Angus Sinclair for the World's End Murders in 2007, on 20 November 2007 the then Cabinet Secretary for Justice Kenny MacAskill MSP instructed the Scottish Law Commission to consider the law relating to several issues arising from the trial and make recommendations for reform. One of these issues was "the principle of double jeopardy, and whether there should be exceptions to it"^[3]

The World's End Murders is the colloquial name given to the murder of two girls, Christine Eadie, 17, and Helen Scott, 17, in Edinburgh, in October 1977. The case is so named because both victims were last seen alive leaving The World's End pub in Edinburgh's Old Town. The only person to stand trial accused of the murders, Angus Sinclair, was acquitted in 2007 in controversial circumstances. Following the amendment of the law of double jeopardy, which would have prevented his retrial, Sinclair was re-tried in October 2014 and convicted of both murders on 14 November 2014. He was sentenced to life imprisonment with a minimum term of 37 years, the longest sentence by a Scottish court, meaning he would have been 106 years old when he was eligible for a potential release on parole. He died at HM Prison Glenochil aged 73, on 11 March 2019. Coincidentally, he died on the same day the BBC's Crimewatch Roadshow programme profiled the murders.

Cabinet Secretary for Justice portfolio in the Scottish Government

The Cabinet Secretary for Justice, commonly referred to as the Justice Secretary, is a position in the Scottish Government Cabinet. The Cabinet Secretary has overall responsibility for law and order in Scotland. The Cabinet Secretary is assisted by the Minister for Community Safety and Legal Affairs.

Kenneth "Kenny" Wright MacAskill is a Scottish National Party (SNP) politician who is a former Member of the Scottish Parliament (MSP) 1999−2016 and former Cabinet Secretary for Justice 2007−2014. He was MSP for the first four sessions of the Parliament, representing the Lothians region 1999−2007, then the constituency of Edinburgh East and Musselburgh 2007–11 and Edinburgh Eastern constituency 2011−16.

In December 2009 the Scottish Law Commission published its report on the principle of double jeopardy. The commission recommended that the principle be retained in Scottish Law and also "The general rule against double jeopardy should be reformed and restated in statute".^[3] The commission further recommended that exceptions to the rule be created in three circumstances:^[3]

Where the acquittal is tainted by offences against the course of justice such as (but not limited to) bribery, perverting the course of justice and subornation of perjury. The commission concluded that perjury in itself should not be suitable grounds to order a retrial.
Where the previously acquitted has made a credible admission of guilt.
Where new evidence which was not and could not with ordinary diligence have been available at the trial has been found. The commission recommended that this only be permitted where the new evidence "substantially strengthens the case against the accused" and that if a reasonable jury had heard the evidence at the trial that this would have made it highly likely that the accused be convicted.

Bribery is the act of giving or receiving something of value in exchange for some kind of influence or action in return, that the recipient would otherwise not offer. Bribery is defined by Black's Law Dictionary as the offering, giving, receiving, or soliciting of any item of value to influence the actions of an official or other person in charge of a public or legal duty. Essentially, bribery is offering to do something for someone for the expressed purpose of receiving something in exchange. Gifts of money or other items of value which are otherwise available to everyone on an equivalent basis, and not for dishonest purposes, is not bribery. Offering a discount or a refund to all purchasers is a legal rebate and is not bribery. For example, it is legal for an employee of a Public Utilities Commission involved in electric rate regulation to accept a rebate on electric service that reduces their cost for electricity, when the rebate is available to other residential electric customers. Giving the rebate to influence them to look favorably on the electric utility's rate increase applications, however, would be considered bribery.

Perverting the course of justice is an offence committed when a person prevents justice from being served on him/herself or on another party. In England and Wales it is a common law offence, carrying a maximum sentence of life imprisonment. Statutory versions of the offence exist in Australia, Canada, Hong Kong, Ireland, and New Zealand. The Scottish equivalent is defeating the ends of justice, while the South African counterpart is defeating or obstructing the course of justice.

In American law, Scots law, and under the laws of some English-speaking Commonwealth nations, subornation of perjury is the crime of persuading a person to commit perjury, which is the swearing of a false oath to tell the truth in a legal proceeding, whether spoken or written.

The commission addressed the issue of retrospectivity, recommending that any exceptions to the rule of double jeopardy only apply to cases heard after any legislation created to create the exceptions is passed. This recommendation was not followed by the Scottish Government and the Double Jeopardy (Scotland) Bill introduced on 7 October 2010^[4] included provisions to apply the proposed legislation retrospectively. Almost all of the other recommendations made by the Commission made it into the bill.

The Scottish Government is the executive in Scotland for areas of public policy which are not reserved. The government was established in 1999 as the Scottish Executive under the Scotland Act 1998, which created a devolved administration for Scotland in line with the result of the 1997 referendum on Scottish devolution. Following increasing use of the name "government" in place of "executive" during the first decade of the 21st century, its name was formally changed in law to Scottish Government by the Scotland Act 2012.

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In the common law, the peremptory pleas are defensive pleas that set out special reasons for which a trial cannot proceed; they serve to bar the case entirely. Pleas in bar may be used in civil or criminal cases; they address the substantial merits of the case.

Bail is a set of pre-trial restrictions that are imposed on a suspect to ensure that they comply with the judicial process. Bail is the conditional release of a defendant with the promise to appear in court when required.

An ex post facto law is a law that retroactively changes the legal consequences of actions that were committed, or relationships that existed, before the enactment of the law. In criminal law, it may criminalize actions that were legal when committed; it may aggravate a crime by bringing it into a more severe category than it was in when it was committed; it may change the punishment prescribed for a crime, as by adding new penalties or extending sentences; or it may alter the rules of evidence in order to make conviction for a crime likelier than it would have been when the deed was committed.

In common law jurisdictions, an acquittal certifies that the accused is free from the charge of an offense, as far as the criminal law is concerned. This is so even where the prosecution is simply abandoned by the prosecution. The finality of an acquittal is dependent on the jurisdiction. In some countries, such as the United States, an acquittal operates to bar the retrial of the accused for the same offense, even if new evidence surfaces that further implicates the accused. The effect of an acquittal on criminal proceedings is the same whether it results from a jury verdict or results from the operation of some other rule that discharges the accused. In other countries, the prosecuting authority may appeal an acquittal similar to how a defendant may appeal a conviction.

The High Court of Justiciary is the supreme criminal court in Scotland. The High Court is both a trial court and a court of appeal. As a trial court, the High Court sits on circuit at Parliament House or the former Sheriff Court building in Edinburgh, or in dedicated buildings in Glasgow and Aberdeen. The High Court sometimes sits in various smaller towns in Scotland, where it uses the local sheriff court building. As an appeal court the High Court sits only in Edinburgh.

Not proven is a verdict available to a court in Scotland. Under Scots law, a criminal trial may end in one of three verdicts: one of conviction ("guilty") and two of acquittal.

R v Carroll (2002) 213 CLR 635; [2002] HCA 55 is a decision of the High Court of Australia which unanimously upheld a Queensland appellate court’s decision to stay an indictment for perjury as the indictment was found to controvert the respondent’s earlier acquittal for murder. The court held that charging Raymond John Carroll with perjuring himself in the earlier murder trial by swearing he did not kill the baby Deidre Kennedy was tantamount to claiming he had committed the murder and was thus a contravention of the principles of double jeopardy. The case caused widespread public outcry and prompted calls for double jeopardy law reform.

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The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb..." The four essential protections included are prohibitions against, for the same offense:

Scots civil procedure governs the rules of civil procedure in Scotland. It deals with the jurisdiction of the country's civil courts, namely the Court of Session and sheriff courts.

Scots criminal law relies far more heavily on common law than in England and Wales. Scottish criminal law includes offences against the person of murder, culpable homicide, rape and assault, offences against property such as theft and malicious mischief, and public order offences including mobbing and breach of the peace. Scottish criminal law can also be found in the statutes of the UK Parliament with some areas of criminal law, such as misuse of drugs and traffic offences appearing identical on both sides of the Border. Scottish criminal law can also be found in the statute books of the Scottish Parliament such as the Sexual Offences (Scotland) Act 2009 and Prostitution (Scotland) Act 2007 which only apply to Scotland. In fact, the Scots requirement of corroboration in criminal matters changes the practical prosecution of crimes derived from the same enactment. Corroboration is not required in England or in civil cases in Scotland. Scots law is one of the few legal systems that require corroboration.

United States v. Dinitz, 424 U.S. 600 (1976), was a case in which the Supreme Court of the United States determined that the U.S. Const., Amend. V protection against double jeopardy did not prevent a retrial of a defendant, who had previously requested a mistrial.

The Administration of Justice (Scotland) Act 1933 is an act of the Parliament at Westminster legislating for Scotland which introduced changes in Scottish legal procedure "following the recommendations of a Royal Commission which reported in 1927".

The Sheriff Personal Injury Court is a Scottish court with exclusive competence over claims relating to personal injury where the case is for a work-related accident claim in excess of £1,000, where the total amount claimed is in excess of £5,000, or where a sheriff in a local sheriff court remits proceedings to the Personal Injury Court. It has concurrent jurisdiction with the Court of Session for all claims in excess of £100,000, and concurrent jurisdiction with the local sheriff courts for personal injury claims within its competence.

The Balance in Criminal Law Review Group was a legal review committee established by Michael McDowell, Minister for Justice, Equality and Law Reform, in 2006. It made numerous recommendations which have been implemented in Irish criminal law.

Blueford v. Arkansas, 566 U.S. 599 (2012), was a decision of the Supreme Court of the United States that clarified the limits of the Double Jeopardy Clause. The Supreme Court held that the Double Jeopardy Clause does not bar retrial of counts that a jury had previously unanimously voted to acquit on, when a mistrial is declared after the jury deadlocked on a lesser included offense.

Burks v. United States, 437 U.S. 1 (1978), is a United States Supreme Court decision that clarified both the scope of the protection against double jeopardy provided by the Fifth Amendment to the United States Constitution and the limits of an appellate court's discretion to fashion a remedy under section 2106 of Title 28 to the United States Code. It established the constitutional rule that where an appellate court reverses a criminal conviction on the ground that the prosecution failed to present sufficient evidence to prove the defendant's guilt beyond a reasonable doubt, the Double Jeopardy Clause shields the defendant from a second prosecution for the same offense. Notwithstanding the power that appellate courts have under section 2106 to "remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances," a court that reverses a conviction for insufficiency of the evidence may not allow the lower court a choice on remand between acquitting the defendant and ordering a new trial. The "only 'just' remedy" in this situation, the Court held, is to order an acquittal.

References

↑ "Double Jeopardy (Scotland) Bill". The Scottish Parliament Website. Retrieved 22 October 2016.
↑ "Double jeopardy reforms pave way for suspect retrials". BBC News. BBC. 27 November 2011. Retrieved 22 October 2016.
1 2 3 Report on Double Jeopardy (PDF). Edinburgh: Scottish Law Commission. December 2009. p. 1. ISBN 97801 0888 2425 . Retrieved 22 October 2016.
↑ McCallum, Frazer. "SPICe Briefing - Double Jeopardy (Scotland) Bill" (PDF). The Scottish Parliament. Retrieved 22 October 2016.

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[1] "Double Jeopardy (Scotland) Bill". The Scottish Parliament Website. Retrieved 22 October 2016.

[2] "Double jeopardy reforms pave way for suspect retrials". BBC News. BBC. 27 November 2011. Retrieved 22 October 2016.

[Report_on_Double_Jeopardy-3] 1 2 3 Report on Double Jeopardy (PDF). Edinburgh: Scottish Law Commission. December 2009. p. 1. ISBN 97801 0888 2425 . Retrieved 22 October 2016.

[4] McCallum, Frazer. "SPICe Briefing - Double Jeopardy (Scotland) Bill" (PDF). The Scottish Parliament. Retrieved 22 October 2016.