“Legal history” in the Making: HM Advocate v Sinclair and the Double Jeopardy (Scotland) Act 2011
Published date | 01 September 2015 |
DOI | 10.3366/elr.2015.0303 |
Date | 01 September 2015 |
Pages | 403-408 |
Author |
The longstanding principle of double jeopardy is, simply put, the rule that, once acquitted, an accused person cannot be re-prosecuted for the same offence. Or for a different offence arising out of the same facts. The principle is now set out in s 1 of the Double Jeopardy (Scotland) Act 2011 but was previously recognised under the common law: see J Chalmers and F Leverick, Summarised by the Scottish Law Commission in its Discussion Paper on Discussion Paper, paras 2.19–2.20. Ibid, paras 2.21–2.23. Ibid, paras 2.24–2.29. Ibid, paras 2.30–2.37.
The Double Jeopardy (Scotland) Act 2011 Henceforth “the 2011 Act”. Scotland is not the only Common Law jurisdiction to have introduced exceptions. See England and Wales (Criminal Justice Act 2003 part 10); Ireland (Criminal Procedure Act 2010 s 8); New Zealand (Criminal Procedure Act 2011 s 154); South Australia (Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008); Queensland (Criminal Code (Double Jeopardy) Amendment Act 2007); New South Wales (Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006); and Victoria (Criminal Procedure Act 2009 ch 7A). Compare the US and Canada where constitutional principles require the maintenance of a strict rule: US Constitution Fifth Amendment; Canadian Charter of Rights and Freedoms s 11(h). The first two exceptions were recommended by the Scottish Law Commission, but it reached no firm conclusion on whether a new evidence exception should be introduced: Report on S 4(1).
Para 1.
Para 29.
A right of appeal against a successful no case to answer submission in solemn proceedings has since been introduced (Criminal Procedure (Scotland) Act 1995 s 107A). Both this reform and the double jeopardy reforms more generally were prompted by Sinclair's original acquittal: see S Wortley, “Law reform after World's End” (2008) 12 EdinLR 293.
Once the 2011 Act came into force, the Crown lodged an application under section 4 requesting authority to re-prosecute Sinclair...
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