Thursday, 27 September 2012

Double jeopardy and Lockerbie

[What follows is taken from a profile in today’s edition of The Scotsman of Lesley Thomson, Solicitor General for Scotland:]

The Scottish Government’s Double Jeopardy Act 2011 means prosecutors can try people twice if significant new evidence came to light. One case is expected to reach court by the end of 2012, but the Crown Office will not say which.

“What happened in November last year was the launch of the cold case unit and the homicide database,” says Thomson. “That was partly for cold cases but also with an eye towards what was happening in regards to double jeopardy. That was always going to contain double jeopardy as well. At that time, working with police, it was decided to prioritise a group of cases without naming them.”

However, some cases being re-examined are known. The Crown Office has confirmed it has asked police to reinvestigate the murders of Surjit Singh Chhokar, Amanda Duffy and World’s End victims Christine Eadie and Helen Scott.

The Lockerbie investigation has also been linked to double jeopardy, although Ms Thomson will not be drawn on this as it is a live investigation.

If the Crown seeks to bring charges against ­Al-Amin Khalifa Fhimah it will need to do so under double jeopardy, because he has already faced one trial where he was found not guilty and acquitted of 270 counts of murder in the Pan Am Flight 103 bombing.

However, if the Crown Office goes after other ­individuals, who have not previously faced prosecution for the terrorist atrocity, they will not need to rely on double jeopardy.

What Thomson is keen to stress, however, is that the Crown Office saw double jeopardy coming and had been preparing for the legislation which was introduced in November last year.

“There was already work being done about how we go about an old investigation,” she says. “There was a lot of thinking about how we would run that in parallel with current investigations.”

[As I remarked in an earlier post on this blog: “I would be astounded if prosecutors sought to re-indict Lamin Fhimah.  The Crown Office is just as aware as the rest of us are that the astonishing thing about the Zeist trial was not the acquittal of Fhimah but the conviction of Abdelbaset Megrahi.  Any 'new evidence' that has emerged since 2001 points clearly towards the innocence of the accused Libyans rather than their guilt, as the Scottish Criminal Cases Review Commission amongst others has pointed out.”]


  1. For me the repeal of double jeopardy is worse than the show trial conviction of al-Megrahi.

    Al-Megrahi was scapegoated to avoid holding a public enquiry into Lockerbie, but it was a miscarriage of justice that can be reversed.

    But the repeal of double jeopardy is the removal of a fundamental cornerstone of our justice system intended to protect against a police state.

    In other words the former is a tactical defeat for justice, but the latter is a strategic attack on the integrity of the system itself.

    How soon before Magna Carta and Habeas Corpus suffer the same fate?

    That’s why for me the truth about Lockerbie is part of a wider struggle to restore democracy and honest government to Britain and Scotland.

  2. Neither Magna Carta nor the writ of habeas corpus form, or have ever formed, any part of the law of Scotland.

  3. And come to that, what has happened has been the repeal of the prohibition on double jeopardy. In other words, double jeopardy is now possible within the legal system.

    I don't like it, but it hasn't been tested in court yet. If they confine themselves to cases where there is very clear evidence an acquitted person is actually guilty, it may be OK. If they start hounding people repeatedly just because they're sore losers, this will remind us why the safeguard was introduced in the first place.

  4. Hi Dave
    Don't understand you on this one!

    If the crime is serious, and absolutely conclusive evidence is discovered after the trial, would you really want the criminal to walk free?

    Needless to say, we should build substantial protection of the potentially re-accused into the system.

    a. it must be a very serious crime.
    b. the evidence must really be conclusive. A structure could be set up here to decide if this was the case before a trial could be set (e.g. that N independent judges would have to agree, without dissent).

    Also, compensation should be massive - an order of magnitude higher than for first-time matters - if
    - he was arrested, but the case never reached court anyway.
    - a conviction failed after all.

    But have somebody walking around, guilty beyond reasonable doubt, because the evidence came too late?

    Absolutely not.

    - - -

    "The Lockerbie investigation has also been linked to double jeopardy...Fhimah..."

    Just the usual spin. Crown & Co would never dream about stirring up in the Lockerbie matters.

  5. Miscarriages of justice often occur and are remedied.

    The big political cases take longer, but they happen because good rules are broken for political expediency.

    The removal of double jeopardy is different because you are removing a good rule and replacing it with a bad rule.

    This becomes a premeditated breaking of the rules before the event.

    I can understand SM not wanting the guilty to walk free, but sacrificing a vital safeguard against a police state threatens us all.

  6. Double jeopardy, far from being removed, has been reintroduced. For goodness sake understand the terminology you're using, if nothing else.

    Whether that will lead to the abuses that caused it to be prohibited in the first place, many hundreds of years ago, remains to be seen.

  7. SM, replacing a vital safeguard with new safeguards may work, but the Test Case proves otherwise.

    The removal of double jeopardy followed the recommendations of the McPherson Report and was done to secure the political objective of convicting the alleged murderer/s of Stephen Lawrence.

    The new safeguards included the need to show compelling new evidence.

    And yet this ‘compelling’ evidence was the detection of a micro-spot of Lawrence’s blood and a micro-fibre from his jumper on the suspects clothing.

    The defence team did not question the forensics.

    They could have questioned whether Lawrence’s DNA could have been extracted from an old micro-blood spot, particularly as DNA can only be extracted from red, not white blood cells.

    And they could have questioned whether a micro-fibre could have definitely come from Lawrence’s jumper when many jumpers are made of the same material.

    They did question whether the jury could be sure beyond reasonable doubt, that there had been no cross-contamination after the suspects and victims clothing had been stored in the same room for many years.

    The only other ‘evidence’ was a surveillance tape showing the suspects making racist comments, but which contained no admissions of guilt.

    I do not know the make-up of the jury, but I suspect they felt on trial too and returned a guilty verdict to avoid being accused of racism themselves?

    In other words the political racist, ‘anti-racist’ objective for removing the safeguard ensured the new safeguards failed too.

  8. "Test case" - in England. Magna Carta, habeas corpus....

    Dave, remember the rest of us are in Scotland.

  9. Yes your right, double jeopardy has been reintroduced and the former vital safeguard removed, thanks Rolfe!

    And yes, the Test Case was in England, but as the Lockerbie test case shows, the Scottish system can fail too!

    Although both legal systems are governed by Crown Officials who swear loyalty to the Queen!

    An alternative to the reintroduction of double jeopardy could be to convict using the perjury rule?