“Legal history” in the Making: HM Advocate v Sinclair and the Double Jeopardy (Scotland) Act 2011

Document Cited authorities (7) Cited in Related
Author
DOI10.3366/elr.2015.0303
Published date01 September 2015
Date01 September 2015
Pages403-408
<p>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.<xref ref-type="fn" rid="fn1"><sup>1</sup> </xref><fn id="fn1"><label>1</label> <p>Or for a different offence arising out of the same facts. The principle is now set out in <span class="vid_spn">s 1 of the Double Jeopardy (Scotland) Act 2011</span> but was previously recognised under the common law: see J Chalmers and F Leverick, <italic>Criminal Defences and Pleas in Bar of Trial</italic> (2006) ch 15.</p> </fn> Various rationales have been advanced for the principle.<xref ref-type="fn" rid="fn2"><sup>2</sup> </xref><fn id="fn2"><label>2</label> <p>Summarised by the Scottish Law Commission in its Discussion Paper on <italic>Double Jeopardy</italic> (Scot Law Com DP No 141, 2009) paras 2.19–2.37 (henceforth “Discussion Paper”). See also I Dennis, “Rethinking double jeopardy: justice and finality in criminal process” [2000] Crim LR 933; P Roberts, “Justice for all: two bad arguments (and several good suggestions) for resisting double jeopardy reform” (2002) 6 IJEP 197.</p> </fn> Permitting re-prosecution might increase the risk of wrongful conviction,<xref ref-type="fn" rid="fn3"><sup>3</sup> </xref><fn id="fn3"><label>3</label> <p>Discussion Paper, paras 2.19–2.20.</p> </fn> encourage complacency in the initial investigation,<xref ref-type="fn" rid="fn4"><sup>4</sup> </xref><fn id="fn4"><label>4</label> <p>Ibid, paras 2.21–2.23.</p> </fn> or cause distress to the accused who has to go through a second trial.<xref ref-type="fn" rid="fn5"><sup>5</sup> </xref><fn id="fn5"><label>5</label> <p>Ibid, paras 2.24–2.29.</p> </fn> The most convincing arguments, however, are based on the value of finality in the criminal process. A strict double jeopardy rule ensures that acquitted persons can get on with their lives without having to live in perpetual fear of re-prosecution, jury verdicts cannot be accepted or rejected at will by the state, and the financial cost of multiple trials is avoided.<xref ref-type="fn" rid="fn6"><sup>6</sup> </xref><fn id="fn6"><label>6</label> <p>Ibid, paras 2.30–2.37.</p> </fn></p> <p>The <a href="https://vlex.co.uk/vid/double-jeopardy-scotland-act-808395953">Double Jeopardy (Scotland) Act 2011</a><xref ref-type="fn" rid="fn7"><sup>7</sup> </xref><fn id="fn7"><label>7</label> <p>Henceforth “<a href="https://vlex.co.uk/vid/double-jeopardy-scotland-act-808395953">the 2011 Act</a>”.</p> </fn> introduced three limited exceptions to the rule,<xref ref-type="fn" rid="fn8"><sup>8</sup> </xref><fn id="fn8"><label>8</label> <p>Scotland is not the only Common Law jurisdiction to have introduced exceptions. See England and Wales (<a href="https://vlex.co.uk/vid/criminal-justice-act-2003-808156109">Criminal Justice Act 2003</a> 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).</p> </fn> namely where the acquittal was tainted because a person committed an offence against the course of justice in relation to the original proceedings (section 2); where the acquitted person subsequently admits to committing the original offence (section 3); and where there is new evidence that the acquitted person committed the original offence (section 4).<xref ref-type="fn" rid="fn9"><sup>9</sup> </xref><fn id="fn9"><label>9</label> <p>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 <italic>Double Jeopardy</italic> (Scot Law Com No 218, 2009) para 4.43 (henceforth “Report”).</p> </fn> Sections 2 and 3 apply regardless of the seriousness of the offence; section 4 applies only where the original prosecution was on indictment in the High Court.<xref ref-type="fn" rid="fn10"><sup>10</sup> </xref><fn id="fn10"><label>10</label> <p>S 4(1).</p> </fn></p> <italic>HM ADVOCATE V SINCLAIR</italic>

HM Advocate v Sinclair 11

[2014] HCJAC 131.

is the first case to be re-prosecuted under the 2011 Act. Aside from its symbolic significance, it is important because it sheds some light on how section 4 of the Act will be interpreted. Angus Sinclair was initially prosecuted in 2007 for his alleged role in the rape and murder of two women in 1977. It was alleged that he had acted in concert with his brother-in-law, Gordon Hamilton, who died in 1996 and was never prosecuted. Sinclair was acquitted following a successful no case to answer submission.12

Para 1.

 The trial judge held that there was insufficient evidence in law to support the contention that Sinclair's contact with the two women involved violence or that the sexual contact that took place was non-consensual.13

Para 29.

 The Crown had, at the time, no right of appeal against that decision.14

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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