An interesting picture emerges of the rule against "double jeopardy" from the Scottish Law Commission's discussion paper on the subject, published yesterday.
The subject came under scrutiny following the trial for the "World's End" murders, when a "no case to answer" submission was upheld by the trial judge in controversial circumstances. There was a widespread feeling that justice had not been seen to be done, to put it no higher, and that the double jeopardy rule ("tholed assize" is the traditional Scots term), which prevents a further trial following an acquittal, was ripe for review in appropriate cases.
The Commission's typically thorough study (88 pages plus appendices: see http://www.scotlawcom.gov.uk/html/discussion_papers.html) ultimately gives fairly short shrift to the suggestion that the rule has outlived its usefulness. "In our view, the rule against double jeopardy is essential tothe rule of law", it comments at para 5.44. "The prosecution cannot be allowed to say 'Heads I win, tails we play again'. While there may be arguments for exceptions to the rule... the core of the rule - that the verdicts of criminal courts should generally be final - is an essential part of our legal system."
Not only that: it adds that to abolish the rule would put the UK in breach of the International Covenant on Civil and Political Rights, article 14(7) of which obliges us to recognise such a rule.
A further short paragraph (7.4) points out that whatever exceptions might be permitted, since it seems likely that all the evidence deriving from advances in science was already in the hands of the Crown, nothing short of a complete abolition of the rule would permit a retrial.
If there is to be the prospect of review of similar decisions in future, therefore, it will have to be permitted within the proceedings in question.
There is more to the rule than that, and the discussion paper contains an interesting survey of anomalies that can arise from the infinite circumstances of life and the different legal labels that may attach to the same facts. A restatement of the law would be desirable to resolve these. But abolition of a fundamental rule because of its application in a single case would not.
- Talking of fundamental rules, did you notice that the chief police officers (ACPOS) have called for the possibility of serious criminal charges being heard by one or a panel of judges, with no jury, in potentially lengthy or complex cases? That can be debated in itself, but the cases to be selected for such treatment would be "discussed with ministers". Whatever happened to the independence of the prosecution service? The police really should know better.