13 Jun 2010

Speech in the Scottish Parliament on Double Jeapordy 24 March 2010

When I began to reflect on the debate, I started with the instinctive view that I would not be happy with anything that gave the state the "unfettered" right, as the cabinet secretary described it, to prosecute and persecute people. It is important that we build into our system safeguards that protect the individual from abuse by the state. It is not right that the police have the right, time and again, to come after someone simply because they cannot get the case right in the first place, nor is it right for prosecutors to come back time and again because they failed, for whatever reason, to get the verdict that they thought was right.

Also after reflection, however, I concluded that it cannot be right for victims and their families to see someone who is palpably and clearly guilty get off scot free when they have, as Bill Aitken and others have suggested, admitted their guilt for whatever reason, or new evidence has emerged that demonstrates beyond all reasonable doubt that they should have been convicted of a serious offence. The balance should shift in favour of victims and their families—and, indeed, the public—so that when it can be clearly demonstrated that evidence now exists in the case of someone who, for whatever reason, was previously acquitted or found not guilty, it should be considered whether to prosecute that person again.

Such an approach cannot be unfettered, as a number of members have suggested. It would not be right simply to have every possible case brought forward. I am not sure that I wish, in this debate, to go into the full list of circumstances that would justify that. Today, we should be debating whether it is right in principle to change the present practice. Then, through the process of consultation that has been outlined by the cabinet secretary, we should give ourselves and others the opportunity to reflect and consider how best the approach can be adopted carefully. We should proceed cautiously and carefully. The last thing that we wish to do is to rush headlong into addressing an injustice in such a way that creates another one in the process. If there is new evidence to demonstrate a case beyond all reasonable doubt—through improvements in DNA techniques, for instance—it should be considered. As I said, I do not wish to go through an exhaustive list of circumstances, but I instinctively agree with Stewart Maxwell that, where serious sexual offences have been committed against children, we cannot close our ears to the cries for justice. I do not think that the Liberal Democrats' proposal to restrict the policy to very specific circumstances is the right one.

We have long-established principles in this country that the law should not be retrospective, but the case has been made that, if someone has previously been convicted, then we have changed the law and the evidence is found to be there, there is an argument for looking at it. I hope that that will be considered sensitively in the consultation process.

Publicity is a difficult issue. Trials can be tainted by publicity. The problem is that the publicity surrounding a first conviction, or rather the lack of a conviction, would almost demonstrate—if we consider the argument against the proposal—that no cases could ever be brought back before the courts. There will inevitably be publicity. Judges will have to consider that carefully, but they are experienced in doing so at present, and publicity in itself should not rule out the opportunity to hold another trial.

Robert Brown: Would Mr Henry nevertheless accept the importance of having no prejudicial publicity emerging from the consideration of a request for retrial? That could foul up the fairness of the retrial.

Hugh Henry: I agree with that point, but the same applies to the first trial. The judge must make it clear to the press and other parties that injudicious comments could prejudice a fair trial, so people should be very careful. Unfortunately, we now live in the kind of society where prurient and sensational headlines and stories appear, and, although they might well sell papers, they do not help the judicial system. The judge will have to take some responsibility for that.

Margo MacDonald: I suggest that that point is now wider than it might have been in the past. We are not talking merely about newspaper files and reproductions of past stories; we are talking about the internet, which is an unfettered opinion outlet. We must therefore consider seriously how public opinion will be influenced.

Hugh Henry: I do not doubt that that is the case, but the same applies to all trials. Such is the scope of the internet that people can read comments that have been made elsewhere about trials taking place in this country. Indeed, if we were to take the argument to its logical conclusion, the scope of the internet would allow very few trials to proceed. Care needs to be taken, and I am sure that it will be.

On the question of who should make the decision and how it should be made, I am attracted to the suggestion that the Lord Advocate should determine issues of serious significance and that a judge should make the final decision. My mind is open on the matter and I hope that more evidence on that will emerge as a result of the consultation.

I support the principles that the cabinet secretary outlined in what I thought was a measured speech. It is right that the Parliament takes steps to change something that I believe to be fundamentally wrong.