Scotland Gets Rid of Double Jeopardy

I recently pointed out a devolution case from the UK Supreme Court dealing with a criminal suspect’s right to waive counsel in Scotland. Well, the ‘fun’ is not over yet…

As the BBC reports here, Scotland has done away with the concept of double jeopardy. According to the article, the Double Jeopardy (Scotland) Act was passed in March and is designed to allow acquitted criminal defendants to be re-tried if the original verdict was “fundamentally flawed.”

The Act has various provisions that allow for re-trial, including but not limited to “tainted acquittals,” instances where “[a]dmissions . . . become known after acquittal,” and situations where new evidence is garnered. Two things immediately strike me about the Act. First, there will almost surely be a challenge to it based on the European Convention on Human Rights (ECHR), which will make its way to the UK Supreme Court. Now, I am not nearly familiar enough with the particulars of the ECHR to make any comment on the substantive merits of such a challenge.

Second, and more to the point, this act would seem to toss aside the basic premise of res judicata. It is a fundamental principle that things should not be fully litigated more than once.  After a court has handed down a final judgment in a matter, that matter should be foreclosed from further adjudication. Nor is this unique to criminal law – it is in full force with civil litigation as well.

Ah, but what about a defendant seeking a new trial, you ask? You might point to the US example of a prisoner collaterally attacking his conviction under AEDPA with every hope that he can have a new trial. Doesn’t such a process harm my argument?

The answer will depend upon how you balance the societal importance of imprisoning criminals against the individual interest in liberty. If you believe that it is better to let ninety-nine guilty men go free than imprison one innocent man then I don’t think there is any problem with foreclosing re-trial to the prosecutor but leaving it open to the defendant. The logic is simple enough: if a jury found a man innocent, we’ll take their word on it. If a jury found a man guilty, we’ll leave that man with options for showing said incarceration was unjust. As you can see, the focus is on sanctifying personal freedom.

On the other hand…

If the concern is about society safety and individual freedom is less important, then I suppose what Scotland is doing is perfectly acceptable. If our concern centers not on liberty but on how much danger a man truly poses to society, then why shouldn’t both sides be allowed re-trial? Why should an adversarial system get in the way of truth?

All of this is to say that the correctness or incorrectness of Scotland’s new legislation ultimately turns on a very philosophical question. For me, and I suspect for many others as well, the answer is that Scotland has passed legislation that is an affront to human rights. Time will tell if the courts agree.

-Zachary Cloud

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