Since the sensational collapse of the World’s End trial in September there have been a number of significant developments. Not only have the LOrd Advocate, Elish Angiolini, and Lord Justice General, LOrd Hamilton, crossed each other off their respective Christmas card lists, but there are murmurs that the double jeopardy rule may be scrapped, while previous convictions could soon be revealed during a trial. Steven Raeburn speaks to leading legal figures to find out more.

Distraction is the most important skill of the pickpocket. Deft sleight of hand that draws the eye to the pretty, pretty lights conceals the robbery taking place under your nose.
It is happening with alarming frequency in Scottish Justice; the sideshow of which fingerprint experts were correct, distracted from the appalling culture of denial that allowed the SCRO and the police to ruin Shirley Mckie’s career. The High Court is getting very exercised about what documents may or may not have been disclosed to Al Megrahi’s defence team, while no one seems to be sufficiently bothered to investigate how that airliner came to be destroyed over Lockerbie. And the press spent a great deal of time enjoying the sideshow of the exchange of letters between Lord Hamilton and Elish Angiolini after the Lord Advocate’s statement to Parliament.
Wasn’t it fun, as the two top law officers drew quills at twenty paces? A distraction which seemed to prevent all concerned from focusing on the very real possibility that the basic concept of ‘innocent until proven guilty’ is in danger of being swept away, part of an overzealous pogrom to counter the appalling failure of the Crown in the Angus Sinclair case.
Like Shirley McKie, like Lockerbie, despite obvious facts indicating the contrary, no one is willing to admit to a mistake. Instead, it is proposed that fundamental philosophical principles, upon which our law is built, should be broken, twisted and made to fit into the round hole left by the inconvenient falsehood that as neither the Crown Office, the Lord Advocate, the Advocate Depute, the Procurator Fiscal Service nor the judiciary have made any kind of mistake, it must therefore be the law itself that is wrong. The ancient principle of presumed innocence should go; if the Crown bungle a trial, change the law to give them another try. If we operated a functioning democracy -as opposed to a de facto aristocracy- we would vote out any such proposals, or storm the barricades to make certain ourselves. No. Look at the pretty lights instead. The two Lords are fighting. Very amusing.
It began on 13th September, after the World’s End trial yielded no case to answer. First Minister Alex Salmond said ministers were considering scrapping the principle that an accused should only be tried once for a crime. Cathy Jamieson was quoted in support, speaking of a “growing mood” to do so. On the 16th of September it was reported that the Scottish government planned to consult on whether to allow details of previous convictions to be disclosed prior to trial, removing the presumption of innocence at a stroke by default. “It would be remiss not to look at this,” Kenny MacAskill was quoted as saying that day. He was immediately supported by the Victims of Crime Trust and the Scottish Police Federation, and Labour MSP Margaret Curran. The day before, the Sunday Herald joined the chorus, editorialising that “the time has come to bring double jeopardy up to date and to re-evaluate when and in what circumstances it can be used.” What next, round up the usual suspects?
The Firm caught up with the Justice Minister and challenged him to reassure the profession that the pillars of our law would not be demolished because of the vexed outcome of one case. Kenny MacAskill agrees that the ethos and integrity of the legal system must be maintained; it is fundamental, he told us. But that does not preclude change on a profound scale to established principles.
“Law doesn’t live apart. It reflects the society, the community and the world in which we live,” he said.
“Some things remain fundamental; the ethos and the integrity; law is not in isolation. It reflects the needs and wants of our community. Changes happen in a modern society and we need to see changes in our criminal justice system. Law is about the rules and regulations for our people, retaining key inalienable rights, but at the end of the day it has to reflect some of the social changes that occur.”
Retaining key inalienable rights. But which?
Donald Findlay, QC told The Firm he is very concerned at the emergent clamour to demolish the foundations of the criminal justice system as a result of the World’s End fiasco: “I do not think you knee-jerk react to something. If we assume for example that the Worlds End case failed because there was a catastrophic balls-up on the part of the Crown, what difference does it make? None. What you don’t do is say the way to deal with this is to change the law. That should never be allowed to happen,” he said.
“By all means change the law. But it ought to be done on the basis of principle and for sound reason, not as a reaction to particular event. Never; not under any circumstances. At the present time the principle of a criminal case is that you are presumed by the law to be innocent until you are proved guilty beyond reasonable doubt.
“The other fundamental principle in serious cases is that you are tried by a jury of your peers on the evidence, but only on the evidence. Which is why in this country, unlike America for instance, you don’t have the lawyers and the prosecution arguing the case out on television beforehand or during the trial. The jury should only view it on the evidence.
“If you disclose previous convictions, then you are inevitably disclosing them for a purpose. What is the purpose? There can only be one purpose; which is to show that this man or woman did something similar before, therefore that must make it more likely that they have done it now, and I find that an untenable proposition. That flies in the face of the presumption of innocence. You are taking away the fundamental principle that the jury should only convict on the evidence which is before them.”
Scotland’s Shadow Justice Minister Bill Aitken MSP finds himself in agreement with portions of Findlay’s argument, agreeing with that any change should follow careful consideration, rather than as a response to a single event. Overall though, as a long term proponent for reform of the recurrent trial principle, he believes the law must evolve.
“Scotland has the best legal system in the world, and bears more than favourable comparison with any other jurisdiction, but we cannot have anything preserved in amber. Clearly Scots law has to move with the times, although I would resist change for he sake of change. There have been many Acts of the Scottish Parliament over the last eight years which have been totally unnecessary and cosmetic. But there are some things that do need to change, and I think there is a general and genuine recognition of that. In the criminal law, double jeopardy is one of them, because of a change in society where DNA evidence is now more readily available than it was ten years ago or even five years ago. We have to move with the times, and as society has changed we have to change also.”
Despite his acceptance that the law must adapt, Aitken asserts Findlay’s point that a spontaneous reaction to suit the popular mood must be ruled out at this time: “It is perfectly correct that there should not be a knee jerk reaction. I called for an end to double jeopardy, but not as a result of the recent World’s End case. I am on record of having done this over a period of several years. I would like to think a growing number in the parliament will resist change for the sake of change.”
A second criminal trial is permissible in Scots law if the conviction itself is successfully appealed, so the so called “double jeopardy” scenario is a misnomer, borrowed from US popular parlance.
“Many people have been tried twice for the same crime. A second trial is not unusual,“ Donald Findlay observes. “What, of course, doesn’t exist is a second trial, if the first one fails. If you allow a second trial, there can be no justification for the Crown appealing if they don’t like the verdict.” It is precisely this which has been floated as an option due to the ’bad’ result of the Word’s End trial, which was only brought in 2007 -some thirty years after the fact- due to the evolution of DNA techniques which enabled the Crown to assemble a case. The argument advanced by Salmond et al appears to be that this and other such developments justify new trials in older cases, where a guilty verdict was not reached. The basic proposal has some complex ramifications that render its practical application problematic, to say the least. Findlay explains.
“What is ‘new’ ? Is it something which was not and could not have been made available at the time of the original trial? A development with technology might fit that bill. Let us assume it is a new piece of technology – what is the limit of this? Is it one year, three years, five years, twenty years? Ad infinitum,” Findlay’s argument, based on the simplest principle of jurisprudence, is that the rules of natural justice should allow a man found not guilty to live freely. The ‘subsequent trial’ argument states that he would in effect never relax, looking over his shoulder the rest of his life in case new technology allows the Crown to bring him to trial again. It is an argument that has been solidly rejected through the evolution of Scots law. However, there will always be a minority who support draconian law, presumably in the belief that they themselves will never be its victim.
“Let us assume that someone might have been guilty, but the prosecution failed. The public would say he should never be allowed to relax,” Findlay says. “But if you don’t put a limit on it, say five years later some of the original witnesses may be dead or have moved and you can’t get them all back. What do you do about the fact that all the original witnesses who were put through the original trial were all cross examined, and now know what the defence is, and in a sense have had a dress rehearsal at it?”
Thus, the entire workings of a fair trial begin to crumble once Pandora’s Box has been opened.
This is a lesson from history that has been learned and relearned many times by governments, legal systems and even dictators time and time again. But not yet by ours. Morality cannot be compromised without destroying those who compromise it. It is simply a matter of time before the rot overcomes the machinery. It is not politics that is being practised at Holyrood on a daily basis; that is only the mechanism. It is principles of morality and ethics that are up for grabs in each debate and exchange. Chipping away at long accepted moral principles of presumption of innocence and right to a fair trial is the acceptance of tyranny by increments, and the road towards Orwellian or even Kafkaesque justice. To say it couldn’t happen here is laughably naïve. Jean Charles de Menezes was shot seven times in the face by our Government in a busy city in broad daylight for nothing, and guess what, no one is to blame for that either. One further example of the culture of denial and infallibility that is spreading through the Scottish legal and judicial establishment, which it appears has now become the most important principle around which all others must fit, regardless of what fundaments must be demolished to accommodate it. Shattering Scots law and breaking ‘bad’ rules to fit hard cases that are poorly prosecuted is simply the latest proposed Scottish manifestation.
Law Society President Richard Henderson believes that the current debate is potentially threatening what he called the core values of the profession, and he believes that these are inextricably linked to wider, universal values of fairness.
“You have to look at core values in a number of different ways. There are core values of the profession, and the core values of our justice system. When you look at that you begin to talk about rights and human rights,” he said.
“I think that you begin to talk in terms of the character of people who provide legal services. You need to be able to have absolute trust, you need confidence in the competence of those involved in delivering those legal services. Those are the kind of core values that lie of the heart of the legal profession. How you continue to ensure that those are at the root of provision of legal service is what the debate is about.”
If the structure, institutions and personnel of the legal system need to be swept away to preserve the core values of judicial philosophy in the practice of law, so be it. Better that, than the other way round.