Double Jeopardy (Scotland) Act 2011

This page contains details of the Government's reform of the law on double jeopardy - the law which prevents a person being tried twice for the same offence.

The Double Jeopardy (Scotland) Act 2011

The Double Jeopardy (Scotland) Act came into force on 28 November 2011.  The Act clarifies in statute the principle of double jeopardy - that a person should not be prosecuted for the same offence twice. However, the Act also allows for a number of exceptions to this principle, including where the original trial was "tainted" (section 2 of the Act), where an admission to the offence by an acquitted person subsequently comes to light (section 3 of the Act), and where new evidence emerges (section 4 of the Act).

New prosecutions under the Act

Decisions to take forward any new prosecutions under the Act are entirely a matter for the Crown Office Procurator Fiscal Service (COPFS). COPFS makes prosecution decisions entirely independently of Scottish Ministers and the Scottish Government.

Background

On 20 November 2007 the Cabinet Secretary for Justice, Kenny MacAskill MSP, asked the Scottish Law Commission (SLC) to consider the principle of double jeopardy, whether there should be exceptions to it and to make any appropriate recommendations for reform.  This referral to the SLC also included two other subjects.  Firstly, Crown Appeals.  Secondly, on the Moorov doctrine, admissibility of evidence of bad character or of previous convictions, and on similar fact evidence.

The SLC published its Report on Double Jeopardy in December 2009 having previously published a Discussion Paper and conducted its own consultation exercise in early 2009. SLC papers are available online at the Commission's website.

Parliamentary consideration of changes to the law

On 8 September 2010, the First Minister announced the Government's intention to introduce a Bill to reform the law on double jeopardy. The Double Jeopardy (Scotland) Bill was introduced to Parliament on 07 October 2010 and was passed by Parliament on 22 March 2011.

You can view the history of the Bill's passage through Parliament, including the Bill's accompanying documents.

Government consultation

Prior to introducing the Bill to the Scottish Parliament, the Government launched a consultation exercise based upon the SLC's proposals in March 2010. The consultation paper focused on the question of whether there should be an exception to the rule against double jeopardy in cases where important new evidence has emerged following the original trial. The paper is available in the consultation section of the Government's website.

Responses to the consultation paper

Responses were received from (please note that not all of the respondents have consented to publication of their responses):

Individuals

John O'Connor

Kevin Scott

Morain Scott

Academics

James Chalmers

Alec Spencer

Findlay Stark

Organisations

Sheriffs' Association

Scottish Police Federation

Association of Chief Police Officers in Scotland

Justice for Victims

Law Society of Scotland

Glasgow Bar Association

Victim Support Scotland

Faculty of Advocates

Royal Society of Edinburgh