6 February 2011

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.


  1. The fundamental point in the case of HMA Advocate v Angus Sinclair was that the Advocate Depute had closed the Crown case. Thus, the statutory submission was made against a body of evidence that the Crown erroneously considered sufficient in law.

    There may indeed hasve been other evidence that the jury did not hear, but that was not as a result of some sneaky trick by the defence to have the case thrown out, but as a result of a tactical decision by the prosecutor not to lead it. In the furore subsequent to the acquittal, this point (namely that other evidence may have existed but not been led) was lost.

    In the event that some of the wilder proposals about how the abolition of double jeopardy might work ever found their way onto the statute book, then every tactical decision in every trial could be the subject of review, and there would be no finality, the jury's verdict merely being an intermediate stepping stone.

    There is a practical difficulty, though not an insurmountable one, in allowing the Crown a right of appeal against the upholding of a Section 97 submission. The jury would have to be kept on hold during the appellate proceedings (the outcome of which could not be made known to them), before being required to return to court and resume hearing evidence or submissions; I have grave doubts over the propriety of starting a new trial before a fresh jury.

    Whatever emerges after the Act is in force, it is likely that there will be very few cases in which devastating new evidence comes to light after acquittal. Even where a witness decides to change their story, experience in "fresh evidence" defence appeals shows how rarely that tactic succeeds.

  2. Thanks for that, VoR.

    Very clearly put, particularly in relation to the Sinclair case. Needless to say, I wasn't attempting to imply that it was a piece of defence jiggerypokery. I'm conscious that this blog's audience is primarily interested in politics and the vast majority of folk don't have a legal background. Striking the balance in how things are written and what details to include and exclude can be challenging.

    On the possibility of a mid-or-post proceeding Crown appeals against a "no case to answer" finding - for my own part I'm not necessarily saying we should adopt such a measure - particularly one of a retrospective stripe, justifying a new trial. It just strikes me as curious, given all the references to HM Advocate v. Sinclair in the context of double jeopardy reform, that no single soul from amongst our tribunes has even proposed the obvious measures which might stand a more reasonable chance of seeing him re-prosecuted.

  3. Off topic Lallands, but could you answer a question? And not bill me?


    Is this freeman thingy applicable in Scots Law?

    Just curious, it's not that I don't want to pay my cooncil tax or anything...

  4. Conan,

    This is the first I've heard of the notion. With caveats that I haven't looked into it in any detail, prima facie it has every appearance of being an argument that stands a snowball's chance in hell of being upheld in the final analysis. You won't be able to slip your civic obligations so nimbly or so neatly, I'm afraid.

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