Report on Double Jeopardy

This Report relates to the principle of double jeopardy and whether there should be exceptions to it.

The Commission considers the scope and implications of the rule in some detail in this report.

Double jeopardy can broadly be defined as preventing someone from being tried twice for the same offence. "A Discussion Paper number 141" (ISBN 9780108882319) on double jeopardy was published in January 2009 from which followed a three month consultation process.

The Commission concludes that the present common law is unclear, and recommends that the rule against double jeopardy should be clearly stated in statute.

Also recommended is that there should be a 'core' rule, prohibiting a second trial for the same offence as that of which a person has already been convicted, for an alternative offence of which the accused might have been convicted on the original indictment or complaint, or for an aggravated form of the original charge.

In addition, it is recommended that there should be a broader principle, enforceable by the courts, against multiple trials in relation to the same acts. Further, that it should continue to be possible to prosecute someone for murder or culpable homicide where he has previously been convicted, prior to the death of the victim, of assault; but that it should no longer be possible to do so where the outcome of the first trial was acquittal.

The Commission also recommends that the same rule should apply to statutory offences of causing death (such as causing death by dangerous driving).

Also recommended is that an acquittal or conviction in a foreign jurisdiction should in principle bar proceedings in Scotland in respect of the same acts, but that the Scottish court should be able to disregard such foreign proceedings where it concludes that it would be in the interests of justice to do so.

In conclusion, the Commission states that the rule against double jeopardy should only apply where there has been a proper trial, and that it should be possible to retry an acquitted person where the first trial was shown to be tainted.