On 21 November 2007 Kenny MacAskill, the Justice Secretary, announced that the Scottish Law Commission had been asked by the Scottish Government to review a number of areas of criminal law (http://www.scotland.gov.uk/News/Releases/2007/11/21103557). This is heralded by the Scotsman as “The biggest review of Scots law for more than a generation” (http://news.scotsman.com/scotland.cfm?id=1835092007).
The reference to the Commission is stated to have the aim of “ensuring an appropriate balance between the rights of the accused and the ability of the Crown to prosecute in the public interest.” And the Commission is to look at the following topics:
Judicial rulings that can bring a solemn case to an end without the verdict of a jury, and rights of appeal against such The principle of double jeopardy, and whether there should be exceptions to it Admissibility of evidence of bad character or of previous convictions, and of similar fact evidence The Moorov doctrine
In announcing the review Mr MacAskill stated:
“Fairness for both the victim and the accused is at the heart of any good justice system. But so too is public confidence. Questions around Crown appeal rights, double jeopardy and previous convictions, though not new, were raised again after the trial for the World's End murders in September. Good government is about listening to those public and political concerns with a cool head. We made clear that we would reflect seriously and thoroughly on the balance between the rights of the accused and the ability of the Crown to prosecute in the public interest.
“That's why I believe we need the expertise of the Scottish Law Commission, with their strong track record of independent analysis and reform of Scots Law, to take on this work. I have asked the Commission to consider all the questions in their broad context and in relation to the law of criminal procedure and evidence in general.
“It is no threat to our justice system to reappraise historic principles such as double jeopardy. It is to ensure that our law remains fit for purpose in the modern age.
“This is a big and complex task. As with all potential changes to the law this will not, and indeed should not, happen overnight. However, I am keen that we see the benefits of the Commission's thinking as it develops. I have asked the Commission to press ahead with this work, especially on judicial rulings and double jeopardy, which I would hope to incorporate into appropriate legislation at an early opportunity.”
As Mr MacAskill makes clear, the reference follows from the acquittal in the World’s End murder case (nos 679, 681, 684, and 685). The most politically controversial aspect of that case - the decision of Lord Clarke to uphold a no case to answer plea – is the subject of the first topic for reform. As the Lord Advocate noted in her statement to the Scottish Parliament on 13 September 2007, “While in other situations the Crown in Scotland may appeal the decision of a judge, the Crown has no right of appeal against a decision made in these circumstances” (No 679). The Commission has been asked to report on this issue by the summer of 2008.
Such a timescale is tight given the usual Commission practice in law reform projects (see http://www.scotlawcom.gov.uk/html/flow_chart.html), where a preliminary investigation of the topic is followed by research and policy formulation (including comparative research), the preparation and publication of a discussion paper, a consultation period (typically of a minimum of 12 weeks), an analysis of consultation responses, followed by the formulation of final policy, preparation of draft legislation, and the final submission and publication of a report. Even where the Commission receives a reference a timescale of under a year is difficult to satisfy. For example, the last two criminal law references received by the Scottish Law Commission were on insanity and diminished responsibility where a report was published in July 2004 (No 371) after a reference from the Scottish Ministers in September 2001, on the age of criminal responsibility where a report was published in January 2002 following a reference in October 2000 (No 148).
The only comparable timescale in recent years for a law reform project was the Report on Poindings and Warrant Sales (Scot Law Com no 177) published in April 2000 following a reference on 2nd September 1999, and a discussion paper published on 30 November 1999. Completion of this project was Professor Gerry Maher QC’s first task as a Scottish Law Commissioner, and as lead commissioner on criminal law projects it seems that - as his term of office expires in August 2008 (http://www.journalonline.co.uk/news/1001633.aspx) – his final projects will involve similar time pressures.
There is though a risk in carrying out law reform in such time pressured politically sensitive circumstances. First, the Commission – in considering legal policy – may not reach a result in accordance with political (and public) expectations. For example, the Commission’s report on poindings (while ultimately proving the foundation for much of the Debt Arrangement and Attachment (Scotland) Act 2002) was initially disregarded by the Scottish Parliament following the passage of the Abolition of Poindings and Warrant Sales Act 2000 (no 90) where the Commission’s recommendations did not accord with the then prevailing political view. Secondly, as James Chalmers notes, in a valuable blog commentary on Mr MacAskill’s statement at http://criminalletters.blogspot.com/2007/11/law-commission-new-criminal-justice.html, the history of rapidly formulated criminal law reform is not a happy one, where policy and legislation formulated in haste may not be fit for purpose.
Following completion of the work on appeals where a no case to answer plea has been upheld the Commission have been asked to report on the double jeopardy principle “as early as practicable” in 2009, with the other topics to follow in due course.