Double Jeopardy: Never Say Never Again

In March 2005, Sean Flynn was acquitted of the murder of his mother, Louise Tiffney. Her body had never been found. The jury returned a “not proven” verdict after a 22-day trial. Now, fourteen years later, the Crown are trying to prosecute him for her murder for a second time.

But how can you be prosecuted for the same offence a second time, having been acquitted after trial? Is there a “double jeopardy” rule in Scotland, and – if so – are there any exceptions to it?

Around ten years ago, between the third and final years of my undergraduate degree, I sent a speculative email asking for a work experience placement with the Crown Office and Procurator Fiscal Service. I knew by then that my main area of interest was criminal law, and wanted to boost my CV’s appeal to prospective criminal defence practitioners beyond simply “I work part-time in a bookies, so I have valuable experience of being physically and verbally abused”.

It worked out really well; I spent a lot of time in court “assisting” (by trying to stay out of the professionals’ way as much as I could) and ended up at the High Court watching (unknown to me at the time) a future employer defending a guy accused of attempted murder. It was a memorable case:

 

By far the best part (definitely better than the visit to the “Deaths Department”, a title that over-promised and under-delivered in the excitement stakes imo) was being shown around the “Productions Warehouse” deep in the bowels of Edinburgh Sheriff Court. This is where physical items of evidence are stored for use in upcoming trials.

You know the bit in The Matrix where Neo says that they’re going to need “Guns; lots of guns” and loads of shelves of guns appear out of nowhere? The productions warehouse was a bit like that, except Neo (me, obvs) was saying “We’re going to need guns; a couple of guns. And knives. And jewellery. And cash. And a baseball bat with nails driven through it. And a unicycle, for some reason.”

Hidden away in a back corner were a few boxes labelled “World’s End”, and the Productions Keeper (like the guy at the end of Raiders of the Lost Ark) explained that it was the evidence from the then-recent “World’s End Murders” trial – Her Majesty’s Advocate v Sinclair. The trial had ended with Angus Sinclair’s acquittal, on the basis of a legal argument of “no case to answer” on 10th September 2007 (so he was acquitted by the judge, rather than the jury).

The fallout from this high-profile trial was significant, both legally and politically. Kenny MacAskill, the Cabinet Secretary for Justice, had referred “the principle of double jeopardy, and whether there should be exceptions to it” to the Scottish Law Commission for their recommendations on whether the law should be changed. The evidence used in the trial was being kept in storage, just in case.

As of summer 2009, though, there was no way in law for Angus Sinclair’s acquittal to be challenged. Any attempt to prosecute him again for the murders of Christine Eadie and Helen Scott would inevitably be prevented by the argument that a new trial would be res judicata  – “a thing that has already been decided”. This was known as the common-law (i.e. not contained in a written piece of legislation) “double jeopardy” rule, although the phrase didn’t have any official status in Scots law at the time. With the exception of the Appeal Court authorising a “new prosecution” following a conviction being quashed on appeal, the Crown were not allowed to have a second go at prosecuting you for the same offence after a case had been decided by a judge or jury.

Significant change was forthcoming, though.  The SLC published their detailed “Report on Double Jeopardy” in December 2009, making 36 recommendations. Among these, they recommended that, while “there should continue to be a general rule against double jeopardy”, such a rule should be “reformed and restated in statute”.

Crucially, they also recommended that the Crown should be allowed to retry an acquitted person in certain specific circumstances. These recommendations were, broadly, given effect in the new Double Jeopardy (Scotland) Act 2011. Around the same time, the Criminal Justice and Licensing (Scotland) Act 2010 introduced a “Prosecutor’s right of appeal” against “no case to answer” acquittals. The success of such an appeal would depend on whether the prosecutor could convince the High Court that the acquittal was “wrong in law”.
The Rule Against Double Jeopardy

The 2011 Act applies to all convictions and acquittals, regardless of whether they happened prior to the 2011 Act coming into force or not. It starts by setting out what the “rule against double jeopardy” is.

 

So, when a case ends by acquittal or conviction (including absolute discharge, which isn’t technically a conviction), you cannot be charged with the same offence, an offence arising from the same set of facts (e.g. charging someone with assault by throwing a brick, when they’ve already been acquitted/convicted of culpable and reckless conduct by throwing the brick), or an aggravated form of the original offence (e.g. charging someone with assault to injury and permanent disfigurement by throwing a brick, when they’ve already been convicted/acquitted of a non-aggravated assault).

On that last point, it’s worth noting that section 11 provides a specific exception to this rule relating to aggravations. When A is convicted/acquitted of an offence involving physical injury to B, and B dies after the conviction/acquittal, “apparently from the injury”, then it can be competent to charge A with the murder or culpable homicide of B, or “any other offence of causing B’s death” (e.g. causing death by dangerous driving).

Curiously, s11(1)(c) and (3) allow the Crown to apply to the High Court for permission to prosecute A for murdering (etc) B, when A has already been acquitted of assaulting B. It’s hard to see how A could be guilty of a murderous attack on B when he has already been acquitted of assaulting B in the first place. In these circumstances, the Crown would have to persuade the High Court that a prosecution for murder “is in the interests of justice”. I’m not aware of this provision having been used yet, so it’d be interesting to see how the High Court approach this question, particularly if there’s no new substantive evidence (other than that of B’s death) for the Crown to rely upon.

In a provision that stretches the definition of the idiom “silver lining”, if A is convicted of B’s murder (etc) in accordance with s11(2), s11(5) entitles A to apply to have any earlier conviction for (e.g.) a non-fatal assault to be quashed. Peter Mandelson levels of spin required to sell “Well, you’ve been convicted of murder, but at least you won’t have to worry about that conviction for assault any more, eh” to your client in the cells.

Anyway, back to the proper exceptions to the double jeopardy rule. Sections 2-4 of the 2011 Act deal with these. There are three exceptions given: “tainted acquittals”, “admissions made or becoming known after acquittal” and “new evidence”.

 

Exceptions to the rule #1: “tainted acquittals”

This can be summarised like this: we can have another go at prosecuting you if you were acquitted because you (or someone else) nobbled the trial process somehow.

Section 2 of the 2011 Act refers repeatedly to “an offence against the course of justice”, which is defined in s2(8) as “perverting, or attempting to pervert, in the course of justice (by whatever means…)”. It specifically includes bribery and inducing (“subornation of”) perjury (e.g. by forcing a witness to lie on oath via threats), but does not include the act of perjury itself. In other words, it is not enough for the Crown to say “The accused lied on oath when giving evidence, and he would not have been acquitted if he had told the truth”.

If there is evidence of judge/jury tampering, then the High Court can set aside the acquittal if it is “unable to conclude that the interference had no effect on the outcome of the proceedings on the original indictment or complaint”, and “in the interests of justice to do so”. It cannot do so if interference with a juror become known to the trial judge in the course of the trial, who then allowed the trial to conclude. This is because the trial judge is trusted to take necessary steps to ensure the integrity of the trial (and therefore, the acquittal).

If the nobbling relates to witness tampering, s2(7) provides that an acquittal can only be set aside if the jury were prevented from hearing evidence “capable of being regarded as credible and reliable”, or heard “false evidence” as a result. Presumably, this would require evidence to be led in the High Court (potentially via a sworn statement – an affidavit – or the witness in question speaking to what happened).

 

Exceptions to the rule #2 – admissions

For various reasons (guilt / alcohol / idiocy / belief that your best pal can keep a secret, without appreciating that there r 2 many sneks these days hun inbox me xx etc), folk absolutely love confessing to crimes they’ve committed. Section 3 of the 2011 Act deals with “admissions made or becoming known after acquittal”.

If you have been acquitted of an offence, you can be re-prosecuted for the original offence (or a different one arising from the same facts and circumstances as the original offence, or an aggravated version of the original offence) if:

• You admit committing the original offence (or a “relevant offence”, which covers the two “or” examples in the above paragraph) at any point after acquittal, or
• It comes to light that, before acquittal, you made such an admission

In both scenarios, the High Court has to be satisfied that the case against the person is “strengthened substantially by the admission”, that a reasonable jury would have been “highly likely” to convict as a result, and that it is in the interests of justice to allow a second prosecution.

In the latter scenario, the High Court also has to be satisfied that the Crown did not know (and could not reasonably have found out) about the admission by the time you were originally acquitted.

So, it is a bad idea to respond to the jury’s verdict of not guilty/not proven by jumping up in the dock and shouting “Ha, I did in fact stab the complainer, and you rubes fell for the elaborate tapestry of lies that I weaved for you!” (or equivalent)

In 2016, the Crown attempted to use this section to re-prosecute Francis Auld for the murder of Amanda Duffy, but the application was refused. You can read the decision here – the “admissions” in question begin at paragraph 17.

 

Exceptions to the rule #3 – “new evidence”

Section 4 of the 2011 Act deals with situations in which the Crown seeks to have an acquittal set aside because of the emergence of “new evidence”.

s4(3) and (7)(b) define “new evidence” as “evidence that the person committed the original offence or a relevant offence…[which] was not available, and could not with the exercise of reasonable diligence have been made available, at the [original] trial”. It is important to note that this does not include evidence that was available at the time, but which was not used during the trial “for tactical or other reasons” [HMA v Sinclair, 2014, see below].

Similar to the admissions exception above, new evidence has to “substantially” strengthen the case against the previously acquitted person, to the point at which a reasonable jury would be “highly likely” to convict them. It also has to be in the interests of justice to allow a second prosecution. Interestingly, s4(5) only allows one “new evidence” application to be made to set aside an acquittal, so the Crown have to be confident that no further significant new evidence will arise in future. 

The most famous example of the “new evidence” exception being used is the case of the World’s End Murders. In 2014, the Crown applied to have Angus Sinclair’s acquittal set aside on the basis of new evidence that had come to light as a result of significant developments in forensic science since Sinclair’s 2007 trial. 

Spoiler alert: the application was granted. The court was satisfied that the new evidence was “only available because of the new and more sophisticated scientific techniques which have become available since the trial“. Given the seriousness of the charges, and the impact of the new evidence, it was in the interests of justice to set aside the acquittal and authorise a new prosecution.

Angus Sinclair was convicted of murder on 14th November 2014, and, according to the press at the time of writing, is “close to death” in prison. Good thing they kept hold of those boxes in the Productions Warehouse, eh.

Sean Flynn, who I mentioned back at the start of this post, is facing a potential retrial on the basis of new evidence – the discovery of Louise Tiffney’s body, which presumably has led to forensic evidence becoming available.

It remains to be seen whether the Crown will be granted their second attempt at prosecuting him.