Tag Archives: Scottish justice

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.