Where is the Double Jeopardy outrage?

Hours before dissolving itself, the Scottish Parliament passed the Double Jeopardy (Scotland) Bill and the bill is currently awaiting royal assent. The Scotsman summarises the bill as allowing "exemptions to the centuries-old principle that no-one should be tried twice for the same crime." I am shocked that not only has there been no form of public outrage, there seems to be support for it. The Daily Record notes that Scots Law has provided protection against double jeopardy for over 800 years but they then go on to support getting rid of that protection saying how great it will be to retry some people 30 years later. Even the Law Society of Scotland supports the bill.

West's Encyclopedia of American Law lists five principles which underpin double jeopardy:

• preventing the government from employing its superior resources to wear down and erroneously convict innocent persons;
• protecting individuals from the financial, emotional, and social consequences of successive prosecutions;
• preserving the finality and integrity of criminal proceedings, which would be compromised were the state allowed to arbitrarily ignore unsatisfactory outcomes;
• restricting prosecutorial discretion over the charging process; and
• eliminating judicial discretion to impose cumulative punishments not authorized by the legislature

A government's ability to require anyone to answer to the court and to submit to its judgement is one of its greatest powers. Without protection against double jeopardy, this power would go largely unchecked. This power is entirely one sided. The state would have the power to decide how often to charge an individual and could do so until it received the verdict it wants. The individual has no choice. He must continue to defend himself until he loses. The individual will never win and the state will never lose.

The judicial system is based on finality. Once the court has decided a matter of fact, it is not reconsidered, res judicata. The integrity of the judiciary demands this.

Prosecutors have the responsible to use their powers with great care and only after consideration. Ei incumbit probatio qui dicit, non qui negat, the burden of proof rests on who asserts, not on who denies. It is the responsibility of the prosecutors to decide when the evident is great enough that the State will bring charges against an individual. By prohibiting double jeopardy, the prosecutor makes sure his case is sound and is forced to not make premature accusations. Without this, the quality of the judiciary will suffer. Knowing that you could possible have a second chance at trying someone completely changes the dynamics surrounding criminal procession.

What makes the Double Jeopardy (Scotland) Bill worse is that it applies ex post facto. This is coupled with a vague general "new evidence" exception so that anyone acquitted of a crime in Scotland ever now faces the uncertainty of their acquittal and faces the worrying prospects of a second trial.

One of the hallmarks of an advanced civilization is a fair and just legal system. These recent developments cause me to question if Scotland has this.

I have supported the SNP in the past on this blog, but this is clearly a huge error of judgement on their behalf.