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DOUBLE JEOPARDY (SCOTLAND) ACT 2011

Acts of the Scottish Parliament

Version 28/11/2011

2011 asp 16

Default Geographical Extent: S


  • Double jeopardy
  • Exceptions to rule against double jeopardy
  • Exceptions to rule against double jeopardy: common provisions
  • Plea in bar of trial
  • Other subsequent prosecutions
  • Disclosure of information
  • General
  • Version 28/11/2011
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  • Version 28/04/2011

Introductory Text

Double Jeopardy (Scotland) Act 2011

2011 asp 16

The Bill for this Act of the Scottish Parliament was passed by the Parliament on 22nd March 2011 and received Royal Assent on 27 April 2011

An Act of the Scottish Parliament to make provision as to the circumstances in which a person convicted or acquitted of an offence may be prosecuted anew; and for connected purposes.

Double jeopardy


1 Rule against double jeopardy

(1) It is not competent to charge a person who, whether on indictment or complaint (the “original indictment or complaint”) , has been convicted or acquitted of an offence (the “original offence”) with—

(a) the original offence,
(b) any other offence of which it would have been competent to convict the person on the original indictment or complaint, or
(c) an offence which—
(i) arises out of the same, or largely the same, acts or omissions as gave rise to the original indictment or complaint, and
(ii) is an aggravated way of committing the original offence.
(2) Subsection (1) is subject to sections 2, 3 and 4 and is without prejudice to sections 107E(3) (prosecutor's appeal against acquittal: authorisation of new prosecution) , 118(1) (c) (disposal of appeals) , 119 (provision where High Court authorises new prosecution) , 183(1) (d) (stated case: disposal of appeal) and 185 (authorisation of new prosecution) of the 1995 Act.

(3) In this Act, references to a person being “convicted” of an offence are references to—

(a) the person being found guilty of the offence,
(b) the prosecutor accepting the person's plea of guilty to the offence, or
(c) the court making an order under section 246(3) of the 1995 Act discharging the person absolutely in relation to the offence,
and related expressions are to be construed accordingly.
(4) For the purposes of subsection (3) —

(a) section 247(1) (conviction of person placed on probation or absolutely discharged deemed not to be a conviction) of the 1995 Act does not apply, and
(b) it is immaterial whether or not sentence is passed.
Annotations:

Commencement Information

I1 S. 1 in force at 28.11.2011 by S.S.I. 2011/365, art. 3


Exceptions to rule against double jeopardy


2 Tainted acquittals

(1) A person who, whether on indictment or complaint (the “original indictment or complaint”) , has been acquitted of an offence (the “original offence”) may, provided that the condition mentioned in subsection (2) is satisfied, be charged with, and prosecuted anew for—

(a) the original offence,
(b) any other offence of which it would have been competent to convict the person on the original indictment or complaint,
(c) an offence which—
(i) arises out of the same, or largely the same, acts or omissions as gave rise to the original indictment or complaint, and
(ii) is an aggravated way of committing the original offence.
(2) The condition is that the High Court has, on the application of the Lord Advocate—

(a) set aside the acquittal, and
(b) granted authority to bring a new prosecution.
(3) The court may not set aside the acquittal unless it—

(a) is satisfied that the acquitted person or some other person has (or the acquitted person and some other person have) been convicted of an offence against the course of justice in connection with the proceedings on the original indictment or complaint, or
(b) concludes on a balance of probabilities that the acquitted person or some other person has (or the acquitted person and some other person have) committed such an offence against the course of justice.
(4) Where the offence against the course of justice consisted of or included interference with a juror or with the trial judge, the court must set aside the acquittal if it—

(a) is unable to conclude that the interference had no effect on the outcome of the proceedings on the original indictment or complaint, and
(b) is satisfied that it is in the interests of justice to do so.
(5) But the acquittal is not to be set aside if, in the course of the trial, the interference (being interference with a juror and not with the trial judge) became known to the trial judge, who then allowed the trial to proceed to its conclusion.

(6) Where the offence against the course of justice is not one mentioned in subsection (4) , the acquittal may be set aside only if the court is satisfied—

(a) on a balance of probabilities as to the matters mentioned in subsection (7) , and
(b) that it is in the interests of justice to do so.
(7) The matters referred to in subsection (6) (a) are—

(a) that the offence led to—
(i) the withholding of evidence which, had it been given, would have been capable of being regarded as credible and reliable by a reasonable jury, or
(ii) the giving of false evidence which was capable of being so regarded, and
(b) that the withholding, or as the case may be the giving, of the evidence was likely to have had a material effect on the outcome of the proceedings on the original indictment or complaint.
(8) In this section, “offence against the course of justice” means an offence of perverting, or of attempting to pervert, the course of justice (by whatever means and however the offence is described) and—

(a) includes—
(i) an offence under section 45(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 (c.39) (aiding, abetting, counselling, procuring or suborning the commission of an offence under section 44 of that Act) ,
(ii) subornation of perjury, and
(iii) bribery,
(b) does not include—
(i) perjury, or
(ii) an offence under section 44(1) of that Act (statement on oath which is false or which the person making it does not believe to be true).
Annotations:

Commencement Information

I2 S. 2 in force at 28.11.2011 by S.S.I. 2011/365, art. 3


3 Admission made or becoming known after acquittal

(1) A person who, whether on indictment or complaint (the “original indictment or complaint”) , has been acquitted of an offence (the “original offence”) may, if the conditions mentioned in subsection (3) are satisfied, be charged with, and prosecuted anew for—

(a) the original offence,
(b) an offence mentioned in subsection (2) (a “relevant offence”).
(2) A relevant offence is—

(a) an offence (other than the original offence) of which it would have been competent to convict the person on the original indictment or complaint, or
(b) an offence which—
(i) arises out of the same, or largely the same, acts or omissions as gave rise to the original indictment or complaint, and
(ii) is an aggravated way of committing the original offence.
(3) The conditions are that—

(a) after the acquittal—
(i) the person admits to committing the original offence or a relevant offence, or
(ii) such an admission made by that person before the acquittal becomes known, and
(b) the High Court, on the application of the Lord Advocate, has—
(i) set aside the acquittal, and
(ii) granted authority to bring a new prosecution.
(4) The court may set aside the acquittal only if satisfied—

(a) in the case of an admission such as is mentioned in subsection (3) (a) (ii) , that the admission was not known, and could not with the exercise of reasonable diligence have become known, to the prosecutor by the time of the acquittal in respect of the original offence,
(b) that the case against the person is strengthened substantially by the admission,
(c) that, on the admission and the evidence which was led at the trial in respect of the original offence, it is highly likely that a reasonable jury properly instructed would have convicted the person of—
(i) the original offence, or
(ii) a relevant offence, and
(d) that it is in the interests of justice to do so.
Annotations:

Commencement Information

I3 S. 3 in force at 28.11.2011 by S.S.I. 2011/365, art. 3


4 New evidence

(1) A person who, on indictment in the High Court (the “original indictment”) , has been acquitted of an offence (the “original offence”) may, if the conditions mentioned in subsection (3) are satisfied, be charged with, and prosecuted anew for—

(a) the original offence,
(b) an offence mentioned in subsection (2) (a “relevant offence”).
(2) A relevant offence is—

(a) an offence (other than the original offence) of which it would have been competent to convict the person on the original indictment, or
(b) an offence which—
(i) arises out of the same, or largely the same, acts or omissions as gave rise to the original indictment, and
(ii) is an aggravated way of committing the original offence.
(3) The conditions are that—

(a) there is new evidence that the person committed the original offence or a relevant offence, and
(b) the High Court, on the application of the Lord Advocate, has—
(i) set aside the acquittal, and
(ii) granted authority to bring a new prosecution in the High Court.
(4) For the purposes of subsection (3) (a) , evidence which was not admissible at the trial in respect of the original offence but which is admissible at the time the court considers the application under subsection (3) (b) is not new evidence.

(5) Only one application may be made under subsection (3) (b) to set aside the acquittal of an original offence.

(6) But an application may not be made to set aside the acquittal of an original offence if the person was charged with, and prosecuted anew for, that offence by virtue of this section.

(7) The court may set aside the acquittal only if satisfied that—

(a) the case against the person is strengthened substantially by the new evidence,
(b) the new evidence was not available, and could not with the exercise of reasonable diligence have been made available, at the trial in respect of the original offence,
(c) on the new evidence and the evidence which was led at that trial, it is highly likely that a reasonable jury properly instructed would have convicted the person of—
(i) the original offence, or
(ii) a relevant offence, and
(d) it is in the interests of justice to do so.
Annotations:

Commencement Information

I4 S. 4 in force at 28.11.2011 by S.S.I. 2011/365, art. 3


Exceptions to rule against double jeopardy: common provisions


5 Applications under sections 2, 3 and 4

(1) On making an application under section 2(2) , 3(3) (b) or 4(3) (b) , the Lord Advocate is to send a copy of the application to the acquitted person.

(2) The acquitted person is entitled to appear or to be represented at any hearing of the application.

(3) For the purposes of hearing and determining the application, three of the Lords Commissioners of Justiciary are a quorum of the High Court (the application being determined by majority vote of those sitting).

(4) The court may appoint counsel to act as amicus curiae at the hearing in question.

(5) The decision of the court on the application is final.

(6) Subsection (3) is without prejudice to any power of those sitting to remit the application to a differently constituted sitting of the court (as for example to the whole court sitting together).

Annotations:

Commencement Information

I5 S. 5 in force at 28.11.2011 by S.S.I. 2011/365, art. 3


6 Further provision about prosecutions by virtue of sections 2, 3 and 4

(1) This section applies to a new prosecution brought by virtue of section 2, 3 or 4.

(2) The new prosecution may be brought despite the fact that any time limit for the commencement of proceedings in such a prosecution, other than the time limit mentioned in subsection (3) , has elapsed.

(3) Proceedings in the new prosecution are to be commenced within 2 months after the date on which authority to bring the prosecution was granted.

(4) For the purposes of subsection (3) , proceedings are deemed to be commenced—

(a) in a case where a warrant to apprehend the accused person is granted—
(i) on the date on which it is executed, or
(ii) if it is executed without unreasonable delay, on the date on which it was granted, and
(b) in any other case, on the date on which the accused person is cited.
(5) Where the 2 months mentioned in subsection (3) elapse and no new prosecution has been brought, the decision under section 2, 3 or 4 setting aside the acquittal has the effect, for all purposes, of an acquittal.

(6) On granting authority under section 2, 3 or 4 to bring a new prosecution, the High Court may, after giving the parties an opportunity of being heard, order the detention of the accused person in custody or admit that person to bail.

(7) The provisions of the 1995 Act mentioned in subsection (8) below apply to an accused person who is detained under subsection (6) as they apply to an accused person detained by virtue of being committed until liberated in due course of law.

(8) Those provisions are—

(a) in solemn proceedings, section 65(4) (aa) and (b) and (4A) to (9) (prevention of delay in solemn proceedings) , and
(b) in summary proceedings, section 147 (prevention of delay in summary proceedings).
(9) In proceedings in a new prosecution it is competent for either party to lead evidence which it was competent for that party to lead in the proceedings on the original indictment or complaint (the “earlier proceedings”).

(10) But the prosecutor must identify in the indictment or complaint in the new prosecution any matters as respects which the prosecutor intends to lead evidence by virtue of subsection (9) which would not have been competent but for that subsection.

(11) Where, in a new prosecution, the accused is convicted of an offence, no sentence may be passed in relation to the offence which could not have been passed under the earlier proceedings.

Annotations:

Commencement Information

I6 S. 6 in force at 28.11.2011 by S.S.I. 2011/365, art. 3


Plea in bar of trial


7 Plea in bar of trial that accused has been tried before

(1) This section applies where a person is charged with an offence—

(a) whether on indictment or complaint,
(b) other than by virtue of—
(i) section 2, 3, 4, 11 or 12, or
(ii) section 107E(3) (prosecutor's appeal against acquittal: authorisation of new prosecution) , 118(1) (c) (disposal of appeals) , 119 (provision where High Court authorises new prosecution) , 183(1) (d) (stated case: disposal of appeal) or 185 (authorisation of new prosecution) of the 1995 Act.
(2) The person may aver, as a plea in bar of trial, that the offence arises out of the same, or largely the same, acts or omissions as have already given rise to the person being tried for, and convicted or acquitted of, an offence.

(3) The court must sustain the plea if satisfied on a balance of probabilities as to the truth of the person's averment.

(4) But the court may repel the plea despite being so satisfied if it—

(a) is persuaded by the prosecutor that there is some special reason why the case should proceed to trial, and
(b) determines that it is in the interests of justice to do so.
(5) Subsection (4) is subject to sections 8, 9 and 10.

Annotations:

Commencement Information

I7 S. 7 in force at 28.11.2011 by S.S.I. 2011/365, art. 3


8 Plea in bar of trial for murder: new evidence and admissions

(1) This section applies where—

(a) a person is charged with murder,
(b) the person avers, as a plea in bar of trial under section 7(2) , that the charge arises out of the same, or largely the same, acts or omissions as have already given rise to the person, whether on indictment or complaint (the “original indictment or complaint”) , being tried for, and convicted or acquitted of, an offence other than murder, and
(c) the prosecutor asserts, as a special reason why the case should proceed to trial, one of the matters mentioned in subsection (2).
(2) Those matters are that, since the trial on the original indictment or complaint (the “original trial”) —

(a) there is new evidence that the person committed the murder charged,
(b) the person has admitted to committing the murder charged,
(c) such an admission made before the conviction or acquittal at the original trial has become known.
(3) For the purposes of subsection (2) (a) , evidence which was not admissible at the original trial but which is admissible at the time the court considers the plea is not new evidence.

(4) For the purposes of determining whether to sustain or repel the plea, three of the Lords Commissioners of Justiciary are a quorum of the High Court (the plea being determined by majority vote of those sitting).

(5) Where the special reason relates to the matter mentioned in subsection (2) (a) , the court may repel the plea only if satisfied that—

(a) the case against the person is strengthened substantially by the new evidence,
(b) the new evidence was not available, and could not with the exercise of reasonable diligence have been made available, at the original trial,
(c) on the new evidence and the evidence which was led at that trial it is highly likely that a reasonable jury properly instructed would have convicted the person of the murder had it been charged, and
(d) it is in the interests of justice to do so.
(6) Where the special reason relates to the matter mentioned in subsection (2) (b) or (c) , the court may repel the plea only if satisfied—

(a) in the case of an admission such as is mentioned in subsection (2) (c) , that the admission was not known, and could not with the exercise of reasonable diligence have become known, to the prosecutor by the time of the conviction or acquittal at the original trial,
(b) that the case against the person is strengthened substantially by the admission,
(c) that, on the admission and the evidence which was led at the original trial, it is highly likely that a reasonable jury properly instructed would have convicted the person of murder, and
(d) that it is in the interests of justice to do so.
(7) Section 5 (other than subsections (1) and (3) ) applies to a case to which this section applies as it applies to an application under section 4(3) (b) , with the modifications that—

(a) the reference in subsection (2) of that section to the acquitted person is to be read as a reference to the person charged, and
(b) the reference in subsection (6) of that section to subsection (3) is to be read as a reference to subsection (4) of this section.
Annotations:

Commencement Information

I8 S. 8 in force at 28.11.2011 by S.S.I. 2011/365, art. 3


9 Plea in bar of trial: nullity of previous trial

(1) This section applies where—

(a) a person avers, as a plea in bar of trial under section 7(2) , that the charge arises out of the same, or largely the same, acts or omissions as have already given rise to the person, whether on indictment or complaint (the “original indictment or complaint”) , being tried for, and convicted or acquitted of, an offence, and
(b) the prosecutor asserts, as a special reason why the case should proceed to trial, that the trial on the original indictment or complaint (the “original trial”) was a nullity.
(2) Where the proceedings are before—

(a) the sheriff, or
(b) a justice of the peace court,
the sheriff or justice of the peace court must remit the case to the High Court.
(3) Where the proceedings are—

(a) before the High Court, or
(b) are remitted to that court under subsection (2) ,
the court must determine whether to sustain or repel the plea.
(4) The High Court may repel the plea only if satisfied that—

(a) the original trial was a nullity,
(b) the existence of that trial was not known to the prosecutor before the commencement of the proceedings in which the plea is made, and
(c) it is in the interests of justice to do so.
Annotations:

Commencement Information

I9 S. 9 in force at 28.11.2011 by S.S.I. 2011/365, art. 3


10 Plea in bar of trial: previous foreign proceedings

(1) This section applies where the previous trial averred under section 7(2) took place outwith the United Kingdom.

(2) In determining under section 7(4) (b) whether it is in the interests of justice for the case to proceed to trial, the court is in particular to have regard to—

(a) whether the purpose of bringing the person to trial in the foreign country appears to have been to assist the person to evade justice,
(b) whether the proceedings in the foreign country appear to have been conducted—
(i) independently and impartially, and
(ii) in a manner consistent with dealing justly with the person,
(c) whether such sentence (or other disposal) as was or might have been imposed in the foreign country for the offence of the kind of which the person has been convicted or acquitted is commensurate with any that might be imposed for an offence of that kind in Scotland, and
(d) the extent to which the acts or omissions can be considered to have occurred in, respectively—
(i) Scotland,
(ii) the foreign country.
(3) But the court may not repel the plea if permitting the case to proceed to trial would be inconsistent with the obligations of the United Kingdom under Article 54 of the Schengen Convention.

(4) In subsection (3) , the “Schengen Convention” means the Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985.

Annotations:

Commencement Information

I10 S. 10 in force at 28.11.2011 by S.S.I. 2011/365, art. 3