Law Commission: new criminal justice project

Earlier today, the Scottish Government announced that it has asked the Scottish Law Commission to carry out a “series of studies… aimed at ensuring an appropriate balance between the rights of the accused and the ability of the Crown to prosecute in the public interest”. The Commission has been asked to look at the following issues:

• 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

This may mark a change in the relationship between the Commission and the Scottish Government regarding criminal law reform. In the last five years, the Commission has published two major reports on criminal law (on the age of criminal responsibility in 2002 and insanity and diminished responsibility in 2004), neither of which has resulted in legislation.

By contrast, the Government has announced that there will be a Rape and Sexual Offences Bill next year even though the Commission’s report on that topic has not yet been published, and the Government seems determined to press ahead even more swiftly in this case.

The timescale proposed for the new project is unusually short: a report on judicial rulings and appeal rights is expected by the summer of next year. By comparison, the Report on Insanity and Diminished Responsibility was published in July 2004 after a reference from the Scottish Ministers in September 2001, while the Report on Age of Criminal Responsibility was published in January 2002 following a reference in October 2000.

A mere matter of months (bear in mind that the Commission still has not finalised its report on rape and sexual offences) would be a remarkably tight timescale for a discussion paper, let alone a full report, assuming that is what the Government’s statement means. If Professor Maher, whose term of office expires in August 2008, was hoping for a period of some respite after completing the lengthy and complex rape and sexual offences report, it seems he likely to be disappointed.

If a full report is intended, then it is difficult to see how this can be achieved while maintaining the Commission’s normal full and careful approach to law reform. The previous Executive tried to do law reform quickly via its Expert Group on Corporate Homicide (which met a grand total of five times in as many months before reporting). The report produced by that Group, which was nowhere close to an adequate basis for legislation, should be a warning to anyone who believes that high-quality law reform can be carried out swiftly.

In that case, the surprising decision that corporate homicide was really, after all, a reserved matter allowed the Executive to play a get out of jail free card and piggyback onto proposed English legislation rather than wrestle with the problems left by the Expert Group’s unsatisfactory report. The Commission, of course, is a very different body and may be better able to adjust its workings and resources accordingly - but if not, there will be no such card available this time round.

Update (22/11): Readers may be interested in a post added today to Scots Law News, which makes a similar, but more detailed, point about the timescale proposed for this project.