The World's End (again)...

I've composed a post before on the relationship, if any, which the Double Jeopardy (Scotland) Bill might have with the World's End case. Given its regular reappearance on our tribunes lips and on Holyrood's official report, it is worth reiterating the point, in detail.  What follows will be written in rather heartless legalese. I know some folk find this sort of a prose a manifestly insufficient way of writing about the appalling nature of the case, coolly neglecting the suffering of those involved, their acute feelings of injustice suffered and hopes dashed. I have significant sympathy with that view and nothing which follows should be taken to imply that the legalities exhaust all that one can say about this case. They doubtlessly do not. They are, however, what a blogger with a legal background might most helpfully set out before you, better to understand the issues involved and practical outcomes made possible by reforming Scotland's double jeopardy rules.

As you will recall, Angus Sinclair's murder trial in the High Court of Justiciary collapsed when the accused's lawyers convinced Lord Clarke that an insufficiency of evidence had been lead to convict him of murdering Helen Scott and Christine Eadie in 1977.  There was, Lord Clarke decided, no case in law for the accused to answer. No statutory mechanism existed for the Crown to appeal against this determination. Sinclair returned to prison, where he is serving a life sentence for the murder of Mary Gallagher in 1978. Given regular public references to the case in the context of the Double Jeopardy reform,  you could be forgiven for thinking that Sinclair would be amongst the first to be re-indicted under any new legislation, if the Crown had it within their powers.  Just this week, in Holyrood, former SNP transport minister Stewart Stevenson said:

"For me—and, I suspect, for other members—one of the most chilling speeches that has been made to the Parliament was the speech by the Lord Advocate on the World’s End murder case. It was a lengthy speech that left the chamber as quiet as I have ever heard it. There was no fidgeting—there was a stillness among us as we heard the Lord Advocate lay out matters before us in a judicial manner to which we are not used. Those who listened to that statement—some members found it sufficiently disturbing not to stay for the whole of it—will understand the issue that is before us."

Under pressure from Baillie Bill Aitken, he subsequently qualified his remarks by adding:

Baillie Bill Aitken: "I have difficulty in seeing how the World’s End case—Sinclair v Her Majesty’s Advocate—could be reprosecuted under those terms. However, that is an argument for another day."

Stewart Stevenson: "It would be useful if I said that I actually agree with the member. I just think that when members were confronted with the sort of detailed material that is presented to the courts, as people who are, thankfully, not normally in a court, that was a substantial wake-up call to us about the real world. Thankfully, most of our community, including members, are relatively isolated from that."

I mentioned Richard Baker's remarks to similar effect earlier in the week. He claimed inter alia that...

"In the previous debate, a number of us mentioned the collapse of the trial for the World’s End murders, and there can be no doubt that the change in the law is important for the families of Helen Scott and Christine Eadie..."

One reason we know that retrospectivity matters to their families is because Morain Scott, Helen's father, wrote to the Justice Committee. He said:

"I feel I am a victim of crime as my daughter Helen was brutally murdered in 1977 and it was 30 years later before a person was charged and tried for the crime. The trial was supposed to last approximately six weeks but collapsed under two weeks on 10 September 2007.

I feel there was crucial evidence which the jury did not have the opportunity to hear and the case should have at least been left for a jury verdict.

I am sure there are other families who feel the same as me and I am only seeking justice for my daughter which I feel I have not had as yet.

Retrospectivity could be the only answer to all this."

As the law currently stands, there is no possibility for retrial. Hope, there is none.  Clearly, the retrospective application of any exceptions to the general rule about accused persons having tholed their assize is vital to those families seeking their sense of personal justice fulfilled. It is a necessary precondition, but critically, not a sufficient one. If the case against Angus Sinclair was to be reopened, reasons would have to be found from the statutory framework Holyrood is presently devising. Section 2 of the Double Jeopardy (Scotland) Bill, as introduced, provides that acquittals can be tainted and re-opened where the acquitted person or some other person were subsequently convicted of an offence against the course of justice in connection with the case, or where the High Court judges can be convinced on balance of probability that the accused or some other person has committed such an offence. Given the absence of such a conviction and the general factual background, there seems no reason to believe the World's End case families could derive assistance from this section.

Section 3 allows acquittals to be quashed where the acquitted person makes a confession the panel of the High Court finds to be "credible" on a balance of probabilities (s3(4)(a)); that "that the admission was not known, and could not with the exercise of reasonable diligence have become known, to the prosecutor by the time of the acquittal in respect of the original offence" (s3(4)(b)); that evidence exists to corroborate such a confession; and finally, that the judges determine it is in the interests of justice to set aside the acquittal. So what for the World's End Case? To my mind, this is actually the section which is most likely to adduce new evidence capable of justifying a new trial. And when one reflects that all this requires is for Sinclair to credibly avow his guilt, you get a real sense of the unlikelihood we're talking about.

Section 4 contains the Bill's general new evidence exception. Although there is some controversy about the list of crimes to be included, there is no doubt that murder will be on every list as the most serious of all serious criminal wrongs. Section 4(5) makes clear that the Crown can only apply to the High Court to set aside an acquittal once. And not just any new evidence will do. The Crown must persuade the Court that the  novel evidence leaves "the case against the accused strengthened substantially" (s4(6)(a)); that this "new evidence was not available, and could not with the exercise of reasonable diligence have been made available, at the trial in respect of the original offence (s(4)(6)(b)); that given this evidence and that which was led at that trial, it seems to them "highly likely that a reasonable jury properly instructed would have convicted the person" (s(4)(6)(c)). Finally judges must determine, in all the circumstances, whether it is in the interests of justice (s(4)(6)(d)) to quash the acquittal. While it is not impossible that such new evidence materialises inculpating Angus Sinclair for the murders of Helen Scott and Christine Eadie, given the length of time which has transpired, this seems exceedingly unlikely. All the more unlikely, since we must remember that thirty years passed between the commission of the offences and Sinclair's abortive prosecution for committing them.  This was already a species of "cold case", made familiar by television drama.  With these provisions in mind, return to Morain Scott's letter to the Justice Committee, quoted above.  He argues that the Crown neglected to put evidence before the jury. However, the very fact that he knows what this evidence might be strongly implies that it was available when Sinclair was first prosecuted, and thus, is not "new" for the purposes of this section.

On my analysis, while this Bill may hold out some hope for the Scott and Eadie families, it is a faint, faint hope and it is quite wrong to imply otherwise, as I take Richard Baker regularly to be implying otherwise. This has been pointed out to him on a number of occasions by his fellow parliamentarians, yet he continues to make potentially exceedingly misleading comments about this Bill's capacity to salve past ills and injustice.  Alternatively, if you were making it your main business to have Sinclair re-prosecuted, I'm at a loss to see why Baker hasn't proposed to include a retrospective provision in the Bill that would allow the Crown to apply to the High Court to set aside a judge's decision on passed no case to answer motions and order a re-prosecution.  Although this doubtlessly raises issues under the European Convention, we have previously observed how decidedly blasé some in Holyrood can be about Convention compatibility, particularly in the early deliberative stages on legislation. It is one thing to strive with nerve and sinew to bring an outcome practically about, whether or not, in the final vote, you prove frustrated by the law or a lack of a parliamentary majority. It is quite another to play fake representative heroics with the wounds of others, and raise unreasonable hopes when hopes are faint.

Why the World's End murders are unlikely to be retried...

Further to this morning's post on the first draft of the Double Jeopardy (Scotland) Bill, introduced to Holyrood yesterday, I wanted to strongly emphasise one point about the proposals, so no further confusion is possible. Alex Salmond confirmed the Bill's inclusion in the SNP's Programme for Government, announced in the chamber on the 8th  of September this year. This dowdier, Eck-centric version of Westminster's ermined and sequinned flummery in the Queen Speech was followed by a parliamentary debate on the issues raised. Opposition politicians made a number of references to the proposed reform of the old rules on tholing your assize. Unfortunately, many of these contributions perpetuated a dangerous and singly unfair misunderstanding about what the Bill will do, in particular its relationship to the World's End Murders case of 2007. In a parliamentary debate on double jeopardy on the 24th March 2010, Labour justice spokesman Richard Baker opined:

"We all remember the trauma that was caused by the collapse of the trial for the World's End murders, to which Mike Pringle referred. Indeed, we all remember the Lord Advocate's statement to Parliament on the matter. If the law is not changed retrospectively, the hopes of the families of Helen Scott and Christine Eadie will have no chance of being realised..."

As most of you will already know, the World's End trial concerned the deaths of two seventeen year old women - Helen Scott and Christine Eadie - in 1977. The name derives from the pub in Edinburgh's Old Town where the two women were last seen alive. Some 30 years on, in 2007, Angus Sinclair was indicted for killing Eadie and Scott, yet the trial collapsed when Lord Clarke held that there was not a sufficiency of evidence to convict Sinclair. The proposed reforms to tholing your assize have regularly been linked to that case, not least by Kenny MacAskill. Indeed, Iain Gray did so again in the parliamentary debate after Salmond's speech:

"We agree with the Government that double jeopardy should end, and we will support the bill to achieve that. However, I wonder why that has taken so long; it is three years since the collapse of the World's End case, which clearly illustrated the importance of that measure."

All of these arguments are intensely problematic, not least because the World's End trial does not illustrate the importance of the legislation being proposed. Unless Sinclair subsequently confesses to the murders - or further new evidence comes forward which "substantially strengthens" the case against Sinclair, which seems highly unlikely - he will not be retried and could not be retried under the proposed legislation. It is quite, quite irresponsible, therefore, for Baker to suggest that retrospectiveness is the only thing standing in the way of a fresh re-prosecution of Sinclair for the deaths of the two women. Nobody, I think, is proposing that the Crown simply have an inexhaustible right to try, try and try again to bring home a conviction. Baker reprised the theme in the debate on the SNP government's programme, saying:

Richard Baker:

"When the Scottish Government produces proposals that we believe will help the victims of crime, we will support them notwithstanding our concerns over other aspects of its justice policy. For example, we will support the proposals to reform the laws on double jeopardy. It is intolerable when someone who is guilty of a crime walks free from court. When new evidence of their guilt is produced, there should be an opportunity to try that individual again. Parliament should support reform of the law, and with retrospective action, so that families such as those of Helen Scott and Christine Eadie—the victims of the World's End" 

For the reasons outlined above, this way of talking about the ambit of the reform has the potential to be exceedingly - unjustly - misleading, not least to the families of Scott and Eadie, with whom one can only have the fullest sympathy - and towards whom we owe ruthless honesty about the possibility that the prosecution against Sinclair be revived. The Holyrood debates weren't entirely misleading on that score. Helpfully SNP member of the parliament's Justice Committee, Nigel Don, rose to clarify just this point in the debate:

"The arguments around double jeopardy have been well rehearsed. There is a measure of agreement on the need to deal with the matter. Considerable reference has been made in the Parliament and the press to the World's End case. It is worth pointing out that the case came to an end because the judge ruled that there was insufficient evidence—double jeopardy has nothing directly to do with that. A lacuna in the legal system in that regard has already been remedied. If the World's End case is to be brought back to court, that will have to be because more evidence is found, not because there is a different ruling on the evidence that has already been put before the court. People need to be clear about that. If there is more evidence, of course, the proposed double jeopardy bill could apply to the case."

In this clarifying task, Don received some boon assistance from Holyrood's Cap'n Mainwaring, Liberal MSP Ross Finnie, who promised that:

"We will study carefully the precise proposals on double jeopardy. We recognise the points that the Scottish Law Commission made and we would hesitate if the commission's proposals were watered down. We remain puzzled about the precise connection between the outcome of the World's End trial, to which Nigel Don referred, and double jeopardy. In principle, we see the case for the reform and we accept the commission's position, but we will nevertheless want to study the proposals with care."

There is nothing responsive to the suffering of victims and their families about raising false expectations which are almost sure to be dashed. Nothing good or just or compassionate about that at all. So let there be no doubt, no dubiety. If Holyrood passes the Bill as it is drafted, they should not be permitted to convince themselves that they're categorically reopening the old files and summoning Sinclair to the dock to account for whatever role he may have had in the deaths of two young women. Whatever the truth of the matter, Eadie and Scott were brutally uprooted in the very flower of their youth. Honesty is the very least that we owe their families.