What impact will changes to the ancient law of double jeopardy have in Scotland?

The Stephen Lawrence case has for several reasons proved to be a watershed moment in the UK – it exposed a dark side of British society while highlighting inadequacies within the criminal justice system.

Much has been made of how changes to the legal framework were pivotal in securing the convictions of Gary Dobson and David Norris, from advancements in forensic science to the overhaul of historic pieces of law.

The list of lessons to be learned by the Metropolitan Police and Crown Prosecution Service as a result of the case is painfully long, but it is hoped authorities north of the border and indeed further afield will also pay heed.

One of the key stumbling blocks prosecutors in the Lawrence case had faced previously was the centuries-old double jeopardy rule, which prevented a suspect being tried a second time for a crime.

However, this changed in England and Wales in 2005, partly due to the Lawrence case, and it was stipulated that where prosecutors could show new and compelling evidence had emerged, a retrial could be ordered. As Dobson had stood trial previously, this paved the way for the new case.

Scotland recently followed suit and since November exceptions to the double jeopardy rule have been permitted. The key elements of the Double Jeopardy (Scotland) Act allow a second trial in serious cases, after an acquittal, where new evidence has emerged or where an original trial may have been ‘tainted’ and it has also been enforced retrospectively, meaning old cases are included.

Solicitor General Lesley Thomson is understood to have been compiling a list of acquitted suspects who could now face new prosecutions.

Justice Secretary Kenny MacAskill asked for a review of the double jeopardy principle in 2007 after convicted murderer Angus Sinclair was cleared of killing Helen Scott and Christine Eadie. The teenagers were last seen leaving the World’s End pub in Edinburgh in 1977.

Since the Lawrence verdicts almost two weeks ago, the most high-profile Scottish case to be mentioned is the murder of Asian waiter Surjit Singh Chhokar, who was attacked more than 13 years ago in Lanarkshire.

Dubbed ‘Scotland’s Stephen Lawrence’, the Chhokar case held some similarities to the murder and subsequent investigation that happened in south London in 1993. It sparked controversy after the failure of prosecutors to bring a conviction for the killing, despite the arrests of three men and two subsequent trials.

A racial motive behind the attack had also been incorrectly ruled out by police.

Three men eventually stood trial over Surjit Singh Chhokar’s murder – Ronnie Coulter, his nephew Andrew Coulter and David Montgomery. Ronnie Coulter stood trial first, alone, and blamed the other two men. He was found not guilty of murder but was convicted of assault. Two years later, Andrew Coulter and Montgomery were put on trial and blamed Ronnie Coulter and were found not guilty.

Two official inquiries ordered in the aftermath made allegations of ‘institutional racism’ and the then Lord Advocate, Colin Boyd QC, said that the Chhokar family had been failed by the police and prosecution services.

Now the family want current Lord Advocate Frank Mulholland to reinvestigate the murder.

The Chhokar family lawyer Aamer Anwar said: “There has been a denial of justice. Not once, but twice. Why does no one want to do anything about his murder anymore?” Labour MSP Graeme Pearson, a former assistant chief constable at Strathclyde and a senior officer in the Chhokar murder inquiry, called for the case to be re-opened and described it as “unfinished business”.

He said: “In the Lawrence case, new evidence was deduced as a result of DNA analysis – so one would assume that there would be a coldcase review in the Chhokar inquiry, and if the criteria for prosecuting again are agreed and delivered, it would be an ideal case for a retrial.

SNP MSP and Justice Committee member Humza Yousaf said: “The SNP’s reform of double jeopardy laws means it is now possible for a retrial in the case of Surjit Singh Chhokar, and the Stephen Lawrence case shows the impact new evidence and new technology can have in delivering justice. “Justice is still to be delivered for Surjit Singh Chhokar and I would urge the Crown Office to revisit the case.”

But David McLetchie, the Scottish Conservatives’ justice spokesman, warned: “Whilst it is understandable that people might like to look again at a case, in light of what happened in the Stephen Lawrence case, we should be very careful about drawing comparisons between the two cases. The circumstances are significantly different.” The exact impact changes to double jeopardy will have on potential retrials in Scotland is unclear.

James Chalmers, a senior lecturer and director of postgraduate studies at Edinburgh University’s school of law, said: “I don’t think it will be that significant at all with regards to the numbers of cases. There is nothing to indicate there is a huge stack of cases waiting to be heard in Scotland.

“The impetus for the change to double jeopardy in Scotland seems to have been the World’s End case, but it is a strange case to form this basis in a way because nobody else seems to think there is going to be new evidence emerging in that case.” Peter Duff, professor of criminal justice and director of research at Aberdeen University’s law school, says that although there may not be a large number of cases emerge for retrial, any that do will be high profile.

He said: “One of the ironies and contrary to what the public thinks is this change to double jeopardy makes no difference whatsoever to the World’s End case and it is almost inconceivable there could be another prosecution in that case because nothing has changed since the aborted trial.

“The Chhoker case, as far as I know, there is nothing new yet but if anything does emerge it would have to be fairly significant. The Crown isn’t entitled to say, ‘we made a mess of it first time around, can we have another go?’ The test is defined specifically to prevent that and they (the Crown) has to show there is some kind of new evidence available that would have made a difference had it been available at the previous trial.” He added: “The indications from England is the number of cases which emerge is very small, it’s about one or two a year so on a prorata basis here you would be getting one or two every five years. There might be a little bit of a surge at the beginning because of backdated cases, but it won’t be a huge number.

“The essential argument against this change to double jeopardy is a longstanding rule which was designed to prevent, particularly in a political sense back in the 17th century, the state from repeatedly harassing someone by prosecuting them. It was initially designed very much to protect what we would now call civil liberties or human rights. I think times have changed and the barrier for being able to launch retrials are so exceptional that it is going to happen rarely.” Solicitor Advocate John Scott QC said there is potential for a number of problems to stem from the double jeopardy changes.

He said: “The Lawrence case is a good example for those who say there should be a possibility of further trial if there is new evidence.

“But I still have concerns about the way the legislation was framed in Scotland and about how wide it is and I’m not sure we’ve got the legislation quite right. There are a number of risks in having the possibility of retrials in these circumstances. It seems the presumption of innocence gets very close to a presumption of guilt.

“Unfortunately I think also that the basis in which we make assessments in these cases is extremely partial and it comes largely from what the police tell us. It shares characteristics with some of the classic miscarriages of justice where the police make up their minds fairly early and don’t deflect from that or don’t allow themselves to be deflected from that.

“I am also uncomfortable at the idea of effectively having conditional and provisional acquittals in very serious cases. No one can ever be told they have been acquitted and they don’t need to worry about it any more.

“Although I think the cases that come up for retrial under the change to double jeopardy will be small in number, I am not convinced the legislation was framed in the proper way.” Paul Roberts, professor of criminal jurisprudence at Nottingham University, said: “The verdict in the Lawrence case itself is rightly viewed as a welcome (if belated) victory for justice, but as precedent for the future it should be treated with caution. In our legal systems, acquittals are generally regarded as final, and this remains the strong presumption both in Scotland and in England and Wales even after recent reforms affecting the ancient prohibition against double jeopardy.

“The preconditions for quashing an acquittal in England are strict and rarely satisfied in practice. There must be new evidence, amounting to compelling proof of guilt and, a good explanation as to why the evidence wasn’t produced in the earlier proceedings.

“The Lawrence case passed this exacting test because it relied on new developments in DNA profiling technology that were simply not available in the earlier proceedings. It is also worth remembering that the Lawrence suspects were not acquitted by a jury; the case was thrown out by the trial judge on the basis that there was insufficient evidence to proceed.” He added: “There may well be meritorious cases in Scotland which can satisfy a ‘compelling new evidence’ exception, but if English experience is anything to go by, they will be few and far between. This is exactly as it should be, if we still believe in the presumption of innocence and the right to trial by jury, which does not mean the right to be tried by jury over and over again until the jury convicts.”