Richard Baker MSP

Speech in the Scottish Parliament

24 March 2010

I hope that this debate will be the start of a process in the Parliament that will result in significant modernisation of the law on double jeopardy. I am confident that such a move will receive broad support throughout the chamber. I very much agree with what the cabinet secretary said in his opening remarks.

There may well be debate about the detail and parameters of the change, but it is right that we seek to forge a consensus for change on this important matter of justice. Although this reform of the law might directly affect only relatively few people, as the cabinet secretary pointed out, we all know that there are people in this country—victims of crime and their families—who believe that they have not received justice for very great wrongs that have been committed against them and their loved ones, and that there will be compelling evidence that they have thus far been denied justice.

There can be no more sickening sight than that of a killer walking from a Scottish court free from punishment for the crime. We have to accept that that has happened in Scotland. If we can properly rectify such an injustice, we should do so.

We must thank the Scottish Law Commission for its deliberations: there can be no doubt that in considering the case for reform of this 800-year-old part of Scots law it took on a significant task.

However, it is disappointing that although the commission accepted the case for retrials in instances of confession and tainted trials, it made no recommendation to allow retrials in cases for which there is new evidence. It suggested a legislative framework, should Parliament ultimately choose to go down that route—I hope that it shall—but that framework does not allow for retrospective application. The commission did not accept that there is evidence that there are current situations in which this change of law would lead to retrials if new evidence were to be made available. I find that to be an odd conclusion—one which I believe will be proved to be incorrect.

However, I am pleased that the Scottish Government has taken a different view and has embarked on the process. I inform Parliament that, rather unusually, we will support the Scottish Government motion unamended. It is right that the motion does not restrict the areas in which changing the law on double jeopardy may apply after the consultation, as the Liberal Democrat amendment proposes, particularly given how early it is in the process.

The change in the law in England and Wales, which has been in place for some five years now, applies to a wider range of crimes than murder and rape, as the cabinet secretary and Stewart Maxwell pointed out. That range includes manslaughter, kidnapping, armed robbery and serious drugs crimes. We think that the matter needs to be considered seriously. Of course, there will be the opportunity to consider it during the consultation process. Bill Aitken has done the right thing by withdrawing his amendment, which will now allow for the principle of retrospection to be maintained in the motion. However, I acknowledge the important issue that has he raised, which is that we must ensure that legislation on this is developed as soon as is practically possible. It is right that he brought that matter to the attention of the Parliament, because it needs to be dealt with carefully. We would support stand-alone legislation after a consultation. It is also right to say that the matter has been debated in the Parliament for some time. Of course, the Scottish Law Commission invested considerable time in preparing its own report.

It is right that retrospective implementation is mentioned explicitly in the motion, in particular to inform the consultation process. Given the access that prosecutors now have to new techniques and technologies, such as DNA evidence, that can show proof of criminality even in cases that are many years old, it is right that the proposed new law should have a retrospective impact. We all remember the trauma that was caused by the collapse of the trial for the World's End murders, to which Mike Pringle referred. Indeed, we all remember the Lord Advocate's statement to Parliament on the matter. If the law is not changed retrospectively, the hopes of the families of Helen Scott and Christine Eadie will have no chance of being realised.

I have heard it argued that double jeopardy is an important principle that should be maintained, because accused persons who have been acquitted should have the right not to have the prospect of a retrial hanging over them. I agree that changes to such an important principle must be dealt with very carefully and with appropriate safeguards. However, adhering too closely to that principle would not take account of the rights of victims and their families to achieve justice for horrors that have been committed against them if they have been failed by court processes. I hope that the consultation process ensures that the views of families and victims are properly taken on board.

Robert Brown: Richard Baker has phrased the matter in an interesting way. The issue, surely, is not the horrors that have been committed against individuals—although those are, no doubt, what lies behind the concern—but the alleged horrors. On such allegations, the need for the criminal trial to find the truth is the important issue that we should keep in front of us.

Richard Baker: Many people are confident that the outcome of the criminal trial that I mentioned will be that the allegations will be proved, but I take Robert Brown's general point.

I accept that parameters and safeguards are needed. I do not argue that people should be tried again and again for the same crime, but I am assured that the need for safeguards will rightly be an important feature of the consultation. The legislation that was passed for England and Wales includes the safeguard that the Court of Appeal must agree to quash the original acquittal. The Cabinet Secretary for Justice has pointed to further safeguards, which we can imagine will be put in place in any legislation that might introduced in Scotland.

The Scottish Law Commission report points out that the change in the law south of the border has not resulted in a raft of new convictions. Of the six applications for retrial that have been determined, three have failed. For me, far from being an argument against making the proposed change, that shows that the legislation in England and Wales is being applied carefully and proportionately and is working. Given that the legislation has been in place for some five years now, we surely have nothing to fear from such a change in the law. I hope, and am confident, that ministers will look at the experience in England and Wales when coming to a final view on whether the law should change in Scotland.

I do not pretend that retrospective application would affect a huge number of cases in Scotland, but I believe that it would apply to some important cases, in which families have been devastated because in their fights, justice in the name of their loved ones has not been realised.

The proposed change in the law should not be taken lightly. We will need to consider carefully how exactly the law should be changed—that is what the consultation process will be about—but there must be a change. As well as providing an important reform of the law for the future, the change should ensure that, wherever possible, we can right past wrongs to ensure that those who should have received justice finally do so.

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