It isn't exactly a seasonal dish, but ought this blogger to brace himself for a vast slice of humble pie?
During the Double Jeopardy (Scotland) Act 2011's passage through Holyrood, several parliamentarians, and articles in the press, implied that the legislation would result in the reindictment of Angus Sinclair, accused of committing the so-called World's End murders of the seventeen year old Helen Scott and Christine Eadie in 1977. As you will likely recall, Sinclair's murder trial collapsed in 2007 after Lord Clarke held that the evidence presented to the jury was insufficient in law, to sustain any conviction. Throughout the process of introducing these legal reforms, I was pretty sceptical about the likelihood that the specific changes which Holyrood enacted to the rules on tholing your assize would see the World's End case retried, despite the political pressure from various quarters to do so.
Today, however, the Crown Office have announced that they have applied to the High Court of Justiciary to have Sinclair's acquittal set aside, and the opportunity to re-indict him for killing Eadie and Scott. This is the first application made by the Lord Advocate since the 2011 Act came into force. The application will be decided by at least three judges of the High Court, and their decision is final and not subject to any appeal. So what will the Crown have to argue, if they are going to be granted authority to retry Sinclair?
There are three main exceptions to the general rule that you cannot be tried twice for the same offence in Scotland. Firstly, your acquittal can be set aside if the trial was "tainted" - for example by someone threatening or bribing, or attempting to threaten or to bribe judge or jury or witnesses. As far as I'm aware, there is no suggestion that the Crown is making an application under this section. The second exception is where the person admits their guilt after having been acquitted. There are some qualifications to granting reprosecutions under this heading, however. The Court can only set aside the acquittal if four - prima facie rather stringent - tests are met:
- That the admission of guilt "was not known, and could not with the exercise of reasonable diligence have become known, to the prosecutor" by the time of the original acquittal.
- The "case against the person is strengthened substantially by the admission".
- That "the admission and the evidence which was led at the trial in respect of the original offence, it is highly likely that a reasonable jury properly instructed would have convicted the person"; and
- That "it is in the interests of justice to do so".
Imagining myself invested with judicial grandeur, wig and gown, I struggle to imagine the circumstances where almost any credible evidence of a post-acquittal admission of guilt would not be regarded by the Court as substantially strengthening a case and heightening the likelihood of conviction. Unless, I suppose, the case was fearfully, uncharacteristically weak to begin with. Again, it is worth emphasising that the Crown announcement today contains no information on which of these grounds they are proceeding, but a prison confession would be one possibility.
The final ground to set aside an acquittal is that "new evidence" materialises in the meanwhile. This ground is only available where the original trial was on indictment in the High Court. Practically speaking, this means that acquittals pronounced in the Sheriff Court, whether by judge alone, or sheriff and jury, can't be overturned on the basis of "new evidence", pertinent or persuasive as it might be. Critically, however, not just any additional evidence will do to knock an acquittal flat. In echo of the strictures we saw around subsequent admissions of guilt, the Court may only set aside the acquittal if it is satisfied that:
- The "case against the person is strengthened substantially by the new evidence";
- The new evidence "was not available, and could not with the exercise of reasonable diligence have been made available" at the first trial.
- On the new evidence and the evidence which was led at that trial, it is highly likely that a reasonable jury properly instructed would have convicted the person.
- And lastly, that "it is in the interests of justice to do so".
A few general observations about these qualifications. Firstly, it remains to be seen how expansively or restrictively the High Court will interpret these provisions, but the phrases which I've highlighted above at least gesture towards the Court taking a fairly strict line on what sort of new evidence might justify quashing an acquittal. It certainly should not be taken for granted, for example, that the Court will agree with prosecutors' assessments of the significance and novelty of any new evidence which they wish to adduce. We might be able to agree, for instance, that additional evidence might strengthen an Advocate Depute's case, but it's a matter of judgement and context, rather than strict rule, what a "substantially strengthened" case might look like. Or for that matter, whether supplementing the prosecutor's case with the new evidence would make it "highly" likely, rather than simply more likely, that the jury would find the charges proven against the acquitted person. You might well think, however, that any additional material would have to be pretty darned incriminating, or at least, capable of an incriminatory reading.
In particular, notice too that under the Act, the new evidence must not have been available at the time of the original trial. The evidence would not, for example, be "new" if it was available but simply not lead before the jury by prosecutors. Similarly, want of diligence in ferreting out evidence on the part of the prosecutors and the police cannot be rewarded by a fresh prosecution, though the question of what sort of investigative techniques a "reasonably diligent" copper might employ is obviously open to interpretation at the margins. Our legislators, minds full of "cold cases" from the telly, and advances in forensic technologies, were probably thinking about evidence which it was scientifically impossible to obtain in the past, but are now the common currency of law enforcement.
This paradigm doesn't seem to fit neatly with the facts of Sinclair's acquittal. While the murders of Eadie and Scott occurred in 1977, Sinclair's first trial did not take place until thirty years later. It will be for the Lord Advocate to substantiate, between 2007 and 2012, rather than 1977 and 2007, that some additional significant evidence has come to light warranting the reactivation of criminal proceedings against Sinclair. While it is easy to envisage big changes in the investigative techniques available between the 1970s and the early 2000s, it is a bit trickier to see what radical technological innovations may have occurred over the last half decade, generating evidence where evidence formerly was unavailable.
I've no insight whatever into the substance of the Crown's case, and it may well be that they have uncovered credible evidence of a confession, or new evidence within or outwith the natty fields of forensic science. No doubt we'll hear in greater detail, when the application is presented in open court some time in the new year. On the basis of what the Double Jeopardy (Scotland) Act says, however, there are still plenty of reasons to ca' canny at this stage about the High Court granting authority to the Crown for a second World End's trial to proceed.