After 800 years, ‘double jeopardy’ ends – suspects can face second trial

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Key changes to a centuries old principle of Scots law which prevents a person being tried twice for the same offence come into force today.  The changes mean that suspects previously acquitted of crimes can now be retried.

The double jeopardy principle dates back more than 800 years, but questions have been raised in recent years about whether it needed to be modernised for the 21st Century.

Justice secretary Kenny MacAskill asked for a review of the double jeopardy principle in 2007 following the judge at the “World’s End” murders trial upholding a defence motion of ‘insufficient evidence’ – clearing convicted murderer Angus Sinclair of killing Helen Scott and Christine Eadie.

Following a consultation with Scotland’s legal profession, the public, victims and their families last year, formal steps were taken by Ministers to make the legislative changes required and a Bill was passed unanimously by the Scottish Parliament earlier this year.

The rule will not be removed – double jeopardy is a fundamental principle of Scots law which provides essential protection against the state repeatedly pursuing an individual for the same act.  However, from today, exceptions will now apply.

The key elements of the Double Jeopardy(Scotland) Act are:

  • Restating and clarifying the ancient law on double jeopardy, removing the anomalies and uncertainties identified by the Scottish Law Commission in its 2009 Report on double jeopardy
  • Allowing a second trial in very serious cases where, after an acquittal, compelling new evidence emerges to substantially strengthen the case against the accused
  • Allowing a second trial where the original trial was ‘tainted’, e.g. by intimidation
  • Allowing a second trial where, after an acquittal, evidence becomes available that the acquitted person has admitted committing the offence
  • To permit the prosecution of a person on a more serious charge where the victim has died after the original trial
  • Any changes to the double jeopardy law will be retrospective and apply to old cases

Helen Scott’s father, Morain Scott, 81, responding to the change in law said: “I would like to see justice for the girls, for my daughter and for Christine. My hopes have been up so often before that I just try and keep a level head about this.”

Mr Scott added: “A lot of people talk about closure but you never get closure. It was so long ago – you think about would she have been married, would she have had children. That has gone completely now.”

According to the Crown Office, Solicitor General for Scotland Lesley Thomson will decide which cases could be retried.  Although no specific cases have yet been confirmed, among those likely to be tried again will include the “World’s End” case.

Another case which could be under consideration for retrial is the 1992 murder of Amanda Duffy.  Suspect Francis Auld was charged with Amanda Duffy’s murder but controversially walked free after the jury returned a not-proven verdict.

A Crown Office spokeswoman said: “It is too early to say which cases would be considered, nor would we speculate on how any particular cases will be dealt with under the change to the law of double jeopardy in Scotland.”

The new law change could also see a retrial ordered where the original trial was considered to have been tainted, or a suspect has since admitted the offence.

Mr MacAskill said:

“The principle of double jeopardy dates back over 800 years, but we now live in a very different world. The law needed to be modernised to ensure that it is fit for the 21st century and I am delighted this day has come.

“This is a victory for common sense. In this day and age, people shouldn’t be able to walk free from court and subsequently boast with impunity about their guilt. If new evidence emerges which shows the original ruling was fundamentally flawed, it should be possible to have a second trial. And trials which are tainted by threats or corruption should be re-run.

“Prosecutors should not have their hands tied, and these legislative changes will ensure that in such cases there will be no escape from justice.

“We have acted swiftly in the interests of Scottish justice, victims and their families and this is a historic day for Scots law.”