Tag Archives: Crown Office

Deaths behind bars.

My curiosity was prodded into life by an article in the Guardian last autumn about the number of prisoners in England and Wales who had committed suicide in the preceding 20 months. 130 men and 4 women had taken their own lives.

The narrative that appeared to be endorsed not only by prisoner pressure groups but also by governors and official watchdogs was that individuals struggling with mental health problems or were otherwise vulnerable were being missed by overstretched and undertrained prison staff.

I wondered what the comparable story might be in Scotland. The Scottish Prison Service publishes a list of “deaths in prison custody” on its website.That offered one step forward but another back on the way to getting a clear picture.

Anyone accessing the site can discover the name, age, ethnicity, date of birth and date of death of the 20 or more individuals who have died each year.

Limiting myself to a round 10 year period, since 2005-6 until January 30th this year the numbers are 214 men and 8 women who have died while ostensibly in SPS care.

I’ll come back to ‘ostensibly’.

But how many of those were suicides and does the proportion compare favourably or otherwise with the England and Wales toll? I can’t say.

There is a column in each spreadsheet headed Cause of Death but 75 of those 222 deaths are listed as Not Yet Determined. Clearly it takes time for the formalities to be completed even though the facts of some of them have been widely reported in the media. But according to the SPS spreadsheets there are still 3 of the 20 deaths in 2007-8 that have not yet been determined; another 2 of the 17 deaths in 2008-9; and another 3 of the 19 in 2009-10.

In total 29 deaths have remained Not Yet Determined in the years prior to 2012-13. 12 of the 18 deaths in 2012-13 remain to be determined – getting on for three years.

I can at this point give one comparable figure. In England and Wales all the prison deaths have been determined, in their term, ‘classified’, up to March 2010. Only 5 of the 383 deaths in the two years up to March 2012 remain unclassified. That’s a much smaller proportion than we seem to have achieved.

In passing, one of the truly shocking details that leap off the SPS pages is the number of prisoners – mostly men – dying of natural causes in their 20s, 30s and 40s. Another is the proportion of prisoners whose death has been ‘determined’ as suicide who were ‘awaiting trial’. Maybe they’d have been convicted. Maybe not.

It’s time to return to that ‘ostensibly’ qualification.

The Sudden Deaths and Fatal Accidents Inquiry (Scotland) Act of 1976 charges the Crown Office with the responsibility for investigating certain categories of death, principally deaths in the course of work or where there may be serious public concern following a sudden, suspicious or unexplained death.

The Act allows the Lord Advocate a certain amount of discretion in assessing that degree of “serious public concern”. An FAI has to be held in public and successive Lords Advocate have been challenged on their decisions against holding an FAI. It can’t be an easy task.

The third class of death specified in the Act as the trigger for an FAI is when the deceased is in “lawful custody”.

I was naive enough to think that was pretty tightly worded. But when I enquired at the Crown Office about those three ‘not yet determineds’ from 2007 it turned out that, “without going into detail”, two of them may have been serving a sentence but may not have been in legal custody at the time.

Speaking hypothetically, if a convicted person had been, say, on home leave or day release or even escaped and therefore not under the supervision of a prison officer then she or he could not be deemed to be in lawful custody.

Hypothetically that is why two of the 2007 cases never led to an FAI. And the Crown Office is mystified why the third 2007 case is still listed as not yet determined because an FAI was held and concluded in 2007. The sheriff’s findings are on the Scottish Court Service website.

So is it just a glitch within the SPS that they are recording as not yet determined 7 year old cases that have in reality been long concluded as far as the Crown Office is concerned?

I asked the SPS press office if they could explain from their side. I also asked if the SPS had a figure to match the England and Wales doleful statistic for the number of prisoner suicides per 1,000 prisoners. And I asked how the SPS finds out the cause of death if there is no FAI? And how does the SPS find out the result of an FAI? And how many FAIs they had in their diary for the next couple of months.

I assumed these would be items at the press officer’s fingertips but it turned out otherwise. I have no reason to doubt the explanation that these were questions never previously put and therefore, I was advised, they had been sent on my behalf the long way round through the Freedom of Information process. Answers, therefore, much later.

The job of the Crown Office is to hold the FAI, not to tell anyone about the sheriff’s decision even though they know it. It’s for the Scottish Court Service to publish judgments. And it appears neither of them have to keep the SPS in the loop.

But does it really matter if each of the agencies is doing its own job as well as possible? Well, it matters to those involved – both the family of the deceased as well as those charged with their care as well as their custody. It matters to the prison staff who had to cut down or mop up or retrieve the remains of the deceased.

And it matters to the rest of us where issues are identified in the management of prisoners that they are addressed and any recommendations are implemented.

While each of the agencies involved in the process is doing its job it does appear unnecessarily difficult to piece the fragments together to form a complete picture, the essential precursor of transparency and analysis.

So much of our current political discourse seems to depend on a tiresome questioning of the integrity of those who hold a different opinion or the motives of those who work within a system that is imperfect. The man rather than the ball. It wastes a great deal of energy and fuels a political culture of defensiveness that helps no-one.

I see no reason to question motives or integrity but I discover they do prisoner deaths very differently in England. It’s not perfect as the Guardian article makes clear but there is less likelihood that individual cases are left in the shadows.

Since 2004 The Prisons and Probations Ombudsman (PPO) has investigated all deaths in prisons, probation approved premises, immigration detention facilities and secure training centres. No if or buts.

It is informed immediately of all deaths and its staff have a deadline of 26 weeks to compile a draft report on the circumstances of each which goes both to the relevant coroner ahead of an inquest AND to the next of kin.

The Ombudsman’s website states that “the purpose of these investigations is to understand what happened, to correct injustices and to identify learning for the organisations whose actions we oversee so that the PPO makes a significant contribution to safer, fairer custody and offender supervision.”

As in Scotland, the report will not be published until any criminal investigation or proceedings are complete and until, in England and Wales, a Coroner’s Inquest has been concluded. However, when those proceedings are complete every Ombudsman’s report is published on its website. There is only one place to look.

Not only that but in England and Wales a range of other organisations including Inquest, the Howard League and Prison Reform Trust, are immediately advised of a death in one of these forms of custody. They are not always popular commentators as recent public tussles with the current Attorney General demonstrate but they are acknowledged within the system rather than guessing from without.

Inquest provides support for families affected by a prison death and has a forum of specialist lawyers who can provide representation at a Coroner’s Inquest if required.

In Scotland a fourth player appears in the form of the Scottish Legal Aid Board which holds the purse strings for funding representation for families of the deceased at an FAI or for challenging a decision not to hold one.

There appears to be a better triangulation of transparency south of the border.

Lord Cullen completed a report on reforming the FAI system in Scotland in 2009. Amongst his recommendations was an extension of the categories circumstances of deaths where an FAI would be mandatory to more closely follow the Egland and Wales approach.

Responding to some of Lord Cullen’s observations the Crown Office overhauled its own approach to FAIs, creating a specialist Scottish Fatalities Investigation Unit in 2013. The Crown Office spokesman explains the Unit has helped speed up its own procedures and while still aiming for further improvement is unlikely to be more than a couple of years behind the death except in exceptional cases.

The Scottish Government has introduced a Fatal Accident Inquiries Bill into its legislative programme for the current session though it hasn’t got to Stage 1 of its parliamentary progress yet. The Bill though builds on the Cullen recommendations and for the first time takes a tentative step towards requiring those to whom sheriffs direct recommendations at the conclusion of the inquiry to  ”respond”. That’s not the same as holding them to account if they fail to implement recommendations but it is a start.

The bill also looks to ease the bottleneck created by the shortage of court space to allow FAIs to take place in other premises.

There is unlikely to be much opposition in principle to any of the proposals in the Bill but it does not really address the fragmented system that underpins current decision making and reporting of FAIs in general or prisoner deaths in particular.

South of the Border they saw more than a decade ago the value to the public interest of building an independent eye into the process. We still seem to have a national allergy to that sort of scrutiny.

In the meatime, by the time this article is published Louise Park will have attended the final submissions to the sheriff in the FAI following the death of her brother, Thomas David Cameron, who threw himself from the fourth floor gallery of Barlinnie on the 27th March 2013.

Louise has no complaints about the Crown Office – “The fiscal was brilliiant with us the whole time” – but does feel the prison service lawyers and NHS staff lawyers had more time to prepare than her solicitor did while awaiting a SLAB decision. Perhaps she is overestimating the preparation time the other lawyers really did have.

But most of all she wants to know how her brother who was receiving medication for depression and pain came to be quartered on the 4th floor. “He wasn’t the first and hasn’t been the last to throw himself from the top floor. He was in for a serious assault and I don’t expect there’s much sympathy for him but he was my brother.”

Trial Without End

This was published first in the January 2015 issue of The Scottish Review http://www.scottishreview.net/index.html. SR is an independent online journal on life and events in Scotland. Please follow the link. SR takes its journalism seriously but without self advertisement. The simple questions are usually the best.

The financial accounting is trickling in for the protracted process of bringing Angus Sinclair to justice for his part in the rape and murder of Helen Scott and Christine Eadie – the 1977 World’s End murders.

SLAB, the Scottish Legal Aid Board, has accounted to the last penny for its expenditure in funding Sinclair’s defence at the first World’s End trial in 2007 – £ 530,932.24 – and then on his unsuccessful attempts last year to repel the Crown’s application to the High Court of Appeal to bring a new trial in terms of the new Double Jeopardy Act (2011) – £104,732.87.

The board has so far paid out £56,591.76 towards the defence costs in the retrial at Livingston High Court last November though the final reckoning is unlikely to to be less than in the first, 2007, trial. The legal team has four months to submit its invoices for fees and outlays. In passing, it is generally overlooked that these overall figures include VAT. The chancellor gets his cut.

The Crown Office, being responsible for all prosecutions in Scotland, does not generally publish a separate balance sheet on individual cases. It is clear though that no expense was spared in several years of preparation of the retrial. That covered not only the gathering of new evidence, reviewing of previous evidence, commissioning new experts and precognoscing old and identifying new witnesses to ensure there would be no nasty surprises in the trial itself.

There was also an enormous effort applied to making the evidence as comprehensible to its target audience – the 15 individuals in the jury box – as possible. There were animated representations of the bodies of Helen Scott and Christine Eadie that showed their injuries through several planes and through 360 degrees. The animations were effective representations of the injuries but also spared the jury and the families of the deceased from prolonged exposure in the courtroom to photographs of the two young women. Morain Scott, father of Helen, spoke with humbling dignity and modesty at the conclusion of the trial as he acknowledged the difficulty for him of sitting through yet another rehearsal of the last moments of his daughter but that it was his commitment to her and to his late wife that he would see it through to the end.

The financial accounting apart, this was a trial that the Crown could not afford to lose. The murders had taken place before the invention of DNA profiling in 1987. Professor (now Sir) Alec Jeffreys always saw the potential of DNA ‘fingerprinting’ as a means of proving innocence. The media preferred to focus on its potential for establishing guilt.

As in most developments in forensic science the early days of DNA analysis seem crude and limited in retrospect. Large, undegraded samples were required. The dangers of contamination were painfully learned. But it was the development of the science that allowed police and prosection to return from time to time to the unsolved World’s End case.

Eventually, Angus Sinclair and his brother in law, Gordon Hamilton, were identified through DNA profiling as suspects and that permitted in turn a traditional police investigation that appeared to establish their role as the last men to see Helen and Christine alive.

By this time, Hamilton was deceased. The Crown obviously was aware that Sinclair had already been convicted of previous murders and a succession of sex offences. In 2001 he had been convicted of the murder and sexual assault of 17-year-old Mary Gallagher in November 1978 – just over a year after the World’s End murders. There were several characteristics, particularly the use of a ligature round the neck, that were common to all three deceased young women. Sinclair was put on trial in August 2007. There were no admissions and no eye witness testimony. The Crown case, led by Alan Mackay QC, would rely on the scientific evidence that connected Sinclair to Scott and Eadie and the accumulation of circumstantial evidence against him.

Sinclair lodged his special defences that any sexual activity between him and the young women was consensual and that if there had been violence it must have been inflicted by Gordon Hamilton.

At the conclusion of the Crown evidence, Sinclair’s defence QC, Edgar Prais, stood up to make a ‘no case to answer’ submission to the trial judge, Lord Clarke. Prais argued that the Crown had failed to present any evidence that connected Sinclair with any crime against Scott and Eadie. Lord Clarke retired to consider his decision over the weekend and on the following Monday morning accepted Prais’s submission. Sinclair walked free – or at least he would have were he not already serving a life sentence in Peterhead.

All hell was let loose. The lord advocate, Elish Angiolini, publicly disagreed with Lord Clarke’s decision and insisted that there had been enough evidence to put to the jury. The Lord President, Lord Hamilton, criticised her for challenging the independence of the judiciary. There was an exchange of letters. The lord advocate declined to back off. In fact she was ‘invited’ by the presiding officer of the Scottish Parliament to explain what had happened. In what an MSP who was present described to me last week as ‘a seriously ill-judged presentation of evidential detail’ to a horrified full chamber, the lord advocate managed to blame the judge, the media and the law for the problems. But not the Crown Office. She was ‘disappointed’ that the trial had collapsed.

Rereading the official record it stands out that she completely blanked the only direct question, asked by Margo MacDonald, that the Crown had failed to lead evidence about what was found inside the ligatures that might have persuaded Lord Clarke that there was a case to answer.

The lord advocate insisted that decisions on what was to be led or not was a matter for the judgement of the prosecuting advocate, Alan Mackay, whom she fully supported. She demurred from suggestions put to her that the case was so important it should have been her, as lord advocate, or Frank Mulholland, as solicitor general, who led for the Crown. She insisted that pressure of work made that impossible for a law officer to take on. More than that, it was because Frank Mulholland had directed the early investigation into the case in his then capacity as area procurator fiscal that it would have been inappropriate anyway for him to conduct a prosecution based on his own investigation.

Elish Angiolini had only been in post for less than a year. It must have been traumatic for her not only as the first woman lord advocate but also the first to be promoted through the ranks of the Crown Office and Procurator Fiscal system. With a few more years experience of the top job she might have reacted differently.

The justice secretary, Kenny MacAskill, came under great pressure and instructed the Scottish Law Commission to review the law on ‘no case to answer’ submissions; the law on double jeopardy that prevented someone from being retried for an offence for which s/he had been acquitted; and the law on the admissibility of ‘similar fact evidence’.

The Law Commission buckled to its tasks. First it recommended that the law on no case to answer submissions be changed to allow the Crown a right to appeal. That was done in the Criminal Justice and Licensing (Scotland) Act 2010. Second, it recommended amending the law on double jeopardy to allow an application to the Court of Appeal for a retrial in a limited number of the most serious crimes and where it was established that the trial had been tainted – by witness intimidation for example – or where the acquitted person had made subsequent admisions or where there was new, compelling evidence that had not been available at the first trial.

The Law Commission however recommended any change in the law should not be retrospective. Fat chance. For Kenny MacAskill this was all about World’s End. The Double Jeopardy (Scotland) Act was passed in 2011. The Commission submitted its report and recommendations on overhauling the law on similar fact evidence in 2012 but it is still on a Scottish Government shelf. The Crown applied to the Court of Appeal to retry Angus Sinclair in March last year. It was given permission. The court’s 34-page reasoning could only be published after the trial was over in November.

The Crown had to establish that there was new evidence that was not available at the original trial. It focused on a new product called Crime-lite, owned by a company called Foster+Freeman hased in Worcestershire, that had been able to discover DNA in several areas of the clothing of Scott and Eadie and the ligatures that had bound them that had not been identified by the technology available in 2007. Ian Duguid QC for the defence argued that this was not new evidence but was exactly the same type of evidence that was available but not led at the original trial. He submitted to the three appeal judges that the Crown had never explained why it had not led evidence available to it at the original trial. Neither the Crown nor the defence brought Alan Mackay QC to the court to explain his decision on what evidence to lead and what to leave.

Giving the judgement, Lady Dorrian accepted that the discoveries achieved by the Crime-lite technology represented new evidence and along with other evidence therefore cleared the threshhold required by the Double Jeopardy (Scotland) Act.

What raised a few eyebrows in the judgement was the assertion that having accepted that a new trial could take place on the basis of new evidence it would also be permissible to lead other evidence that was available at the time at the first trial but was not led. The Crown was also able to introduce further evidence gathered after the Appeal Court decision.

After deliberating for less than three hours the jury in Livingston found Sinclair guilty last 14 November. Lord Matthews sentenced him to another 37 years.

So, credit where it’s due. Frank Mulholland took on this, the first prosecution under the new double jeopardy law. He could have ducked it. It would have been noticed but he stepped up. Setting aside his previous connection as area procurator fiscal with the original investigation and despite all his other law officer tasks, he found time.

Sinclair’s defence was essentially unchanged – that he admitted having rough and uncaring sex with the young women and then had gone fishing leaving them with his brother in law. There was no guarantee that the prosecution would succeed in establishing that the mountain of circumstantial evidence would be enough to convince the jury beyond all reasonable doubt that Sinclair was lying and that more than one person had subdued, assaulted and ultimately murdered Christine and Helen.

Is Crime-lite really the magic bullet in the prosecutor’s armoury? The floors of courtrooms throughout the country are littered with the spent cases of ammunition once regarded as infallible. A forensic scientist last week worried aloud to me that many cases now turn on ‘a contest between profilers who aren’t very good at statistics and statisticians who have never done a DNA profile’. There are competing software packages claiming to be the best at analysing the statistics derived from DNA analysis. They can’t all be the best.

In the meantime, I wonder if the lord advocate is aware that he is now in the product endorsement business? The Foster+Freeman website now boasts:

Under the intense narrow-band illumination of a Crime-lite, forensic examiners were able to locate previously undetectable traces of semen and saliva. The new evidence provided a direct DNA link between the prime suspect, Angus Sinclair, and the murdered girls.… Lord advocate Frank Mulholland, the most senior law officer in Scotland, later said of the Crime-lite, ‘without Crime-lite, there would have been no trial’. So impressed was he with the technology that he recommended the light sources be introduced to all Scottish forensic labs.

In the seven years between the two World’s End trials, the law has been changed on ‘no case to answer’ submissions and on double jeopardy because there were problems. The only institution that never held its hand up was the Crown Office. Could Sinclair have been convicted in 2007? We’ll never know. But in between, in finding the balance between independence and accountability, being ‘disappointed’ wasn’t enough.