Double Jeopardy and Ian Duguid QC
The first “Double Jeopardy” trial to ever take place in Scotland was the trial of Angus Sinclair, defended by Ian Duguid QC it was the first to be held in Scotland following the ending of the centuries-old double jeopardy rule that meant people could not be tried more than once for any offence..
A number of countries already allow exceptions to the rule that a person should not be tried twice in relation to the same offence.
Double jeopardy is a widely-held legal principal, and forms part of the European Convention on Human Rights (ECHR).
But a number of countries allow some exceptions to this general rule.
Scotland joined this group in 2011 when MSPs passed the Double Jeopardy (Scotland) Act – legislation which was first used in the World’s End murder case.
It was reported in the Times and the Telegraph today that Antonio Boparan, could face charges of causing death by dangerous driving following the death of a little girl he left brain damaged and paralysed in a horrific car accident nine years ago.
Patrick Sawyer in the Telegraph reported that Boparan – the heir to a £130 million food manufacturing fortune – was found guilty of dangerous driving in April 2008, but was released just six months into his 21 month sentence.
Boparan could have faced 14 years in prison had Cerys had died immediately following the crash, but instead he served just six months as a result of being found guilty of the lesser charge of dangerous driving.
More than 13,000 people signed a petition calling for tougher sentences which was delivered to Westminster by Cerys’s parents in July 2009.
Due to a massive campaign for change the law was changed meaning that anyone convicted of causing serious injury by dangerous driving now faces up to five years in prison, instead of the previous maximum of two.
This is what came to be known as ‘Cerys’s Law’.
Now Cerys’ family have called for police to bring new charges against Boparan of causing death by dangerous driving.
A spokesman for Boparan said in a statement: “Antonio remains deeply remorseful of his actions as a teenager nine years ago and their tragic consequences.
“No words can appropriately convey the extent of his sorrow and regret at hearing this terrible news today. He sends his heartfelt condolences to Cerys’ family at this extremely difficult time.”
Do the changes to the law strike a balance in rights?
Sinclair had been tried and acquitted in 2007 for the rape and murder of two women and subsequently acquitted when a judge ruled there was no case to answer. The case ws widely reported as the “World’e End Murder” due to the link with the women and their visit to a public house of that name in Edinburgh.
The prosecutor at the High Court in Edinburgh had failed to provide forensic evidence vital to the case before the jury.
In Glasgow more recently we watched news reports of the Glasgow Bin Lorry crash, Fatal Accident Inquiry and reporters and members of the public asked if the driver would now face criminal charges in light of some information that came to light during the course of the FAI. Legal opinion of many leading lawyers in this area would seem to concur that it is most unlikely that Harry Clark, the bin driver concerned, will face prosecution as this was not a trial, where subsequent new evidence was discovered, this was a Fatal Accident Inquiry where the Crown had already given a written and public statement to the driver that he would not be prosecuted.
It is in the public interest to ensure that dangerous criminals are brought to justice. Hence, double jeopardy legislation is limited to the most serious of cases.
There would be a never ending flow of cases if “Double Jeopardy” applied in all criminal cases as witnesses decided to pop up all over the place as old scores were settled.
Ian Duguid QC was involved in the defence of the first double jeopardy case in Scotland and has been involved in many land mark cases in the course of his esteemed career at the Scottish Bar.
An experienced and renowned Queens Counsel, Ian has gained a broad range of expertise through a varied career including several years of service with the Attorney-General’s Chambers in Hong Kong, as a standing counsel to the Ministry of Defence and as an adviser to Her Majesty’s Government on offending related matters. He has acted as both prosecution and defence counsel in the High Court and Appeal Court, in some of the country’s most notorious recent prosecutions.
Regina –v- Lam Kor wan – for the prosecution in notorious Hong Kong multiple murder case known as the “Jars Murderer”
Rosepark Nursing Home Health and Safety Prosecution
Brown v-Stott – landmark Privy Council appeal
HMA-v-Strachan & Ors –defending the only accused acquitted on the charge of conspiracy in the notorious child sexual abuse and pornography trial
HMA-v-Robert Cunningham – killing of Dundee toddler Brandon Muir
HMA-v-Daanish Zahid – the murder of Glasgow teenager Kris Donald
HMA –v- DT – homicide of 15 year old schoolboy in a school gym hall by fellow pupil
HMA –v- Robert Jennings – Helensburgh triple murder of the Sharkey family in a house fire
HMA -v- Clive Carter – murder of pharmaceutical conference delegate at the SECC
HMA –v- Said Fadal – murder of Imam’s son in Edinburgh street shooting by Somali gang
HMA –v- Aldaire Warmington – Rox jewellery store robbery in Edinburgh
HMA –v- Alice Ross – defence of oldest accused to face High Court trial in Scotland (aged 93) for causing death by dangerous driving