Double jeopardy

[Project now completed]

Patrick Layden QC

Team members
Alastair Smith, Project Manager
Laurence Diver, Legal Assistant

On 20 November 2007, the Scottish Ministers invited the Commission -

"To consider the law relating to:

  • Judicial rulings that can bring a solemn case to an end without the verdict of a jury, and rights of appeal against such;
  • The principle of double jeopardy, and whether there should be exceptions to it;
  • Admissibility of evidence of bad character or of previous convictions, and of similar fact evidence; and
  • The Moorov doctrine."

Double jeopardy is the second topic to be considered under this reference. The principle of double jeopardy refers to the rule which prevents a person who has once been tried of an offence from again being tried for the same offence. We invited comments on our initial proposals for reform in our Discussion Paper on Double Jeopardy (DP 141), published in January 2009.

We have now published final recommendations in our Report on Double Jeopardy (Scot Law Com No 218) which proposes the statutory restatement and reform of the rule that a person may not be tried more than once for the same offence. A news release is also available.

The Scottish Government gave their initial response to the Report in March 2010.

Scots law has long recognised a rule against multiple trials for the same offence. However, the precise scope of this rule was unclear. We recommend that the rule against multiple trials for the same offence should be set out clearly in statute. We also recommend that this clear rule against multiple trials for the same offence should be supplemented by a broader rule against multiple trials arising out of the same, or substantially the same, acts of the accused.

We recommend that despite these rules, it should be possible to retry an acquitted person where it can be shown that the trial which resulted in acquittal was tainted by an offence against the course of justice, such as the bribery or intimidation of witnesses or jurors. It should also be possible for an acquitted person to be retried where, following the acquittal, that person credibly admits to having committed the offence to which the acquittal relates.

The Report considers the question of whether an exception should be made to the rule against double jeopardy in a case in which an acquittal is followed by the discovery of significant new evidence of guilt. The Commission regarded the arguments on this question to be finely balanced, and the Report makes no recommendation as to whether or not such an exception should be introduced. The Report does, however, contain a number of proposals relating to the appropriate scope of a new evidence exception, should the Scottish Parliament decide that such an exception should be introduced. We recommend that any such exception should be restricted to the most serious offences - murder and rape - but that the Scottish Ministers should be empowered, with the approval of the Parliament, to alter the list of offences to which the exception might relate. We recommend that any such exception should apply only where the new evidence is highly significant. We also recommend that any such exception should apply only prospectively, to those crimes for which the first trial takes place after the introduction of the exception.

The Double Jeopardy (Scotland) Act 2011 (asp 16) implements the Report.

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Page archive date: 2 December 2009