I am delighted to have seen that the Lallands Peat Worrier has written about the problems the possible new prosecution of Mr Sinclair will face in relation to the above notorious case. As always, he makes his points succinctly and clearly (qualities which from time to time fail me). I will therefore not bother with the 5,000 words I was planning, but instead would commend LPW’s article to you.
His post starts:-
“Only a numpty would fail to discern the semantic difference. Contrast the phrase: “we are investigating the possibility of a retrial” and “a retrial will definitely happen”. The first formulation certainly suggests serious-minded application – a searching search rather than a dawdling, half-hearted intention to review an acquittal – but for the Scotsman to headline yesterday’s developments in this morning’s paper as “World’s End murders accused set for retrial” is appallingly irresponsible.”
Put shortly, I agree with his points regarding the hurdles the case faces in connection with getting over the hurdles of overturning the acquittal.
It is interesting that, even though the Scottish Law Commission recommended abolotion of the “double jeopardy” rule, they did not suggest making the change of retrospecyive effect.
However the SNP Executive decided to ignore that recommendation, and to make the legislation retrospective. There are major legal issues about retrospective legislation in criminal matters, and as is often the situation it appeared that that provision was brought in specifically to deal with one particular case.
It is rare in my experience that legislation introduced with one case directly as its target achieves its purpose – after all, the new law applies to all cases, not just the cause celebre du jour.
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Back in the days when commenting on issues of the day involved sending a letter to a newspaper, I did so in relation to this case.
My letter, published in the Herald on 13th September 2007, was in response to Ian Bell’s piece the previous day. Titled “When a legal system loses public respect” Mr Bell made a number of points about how, to the outside observer, the decision of Lord Clarke seemed perverse.
He ended by saying:-
“The authority of any legal system depends on the respect it commands. This does not mean that every decision has to be popular. It does mean that decisions should be comprehensible. Sinclair’s guilt for the murders of Christine Eadie and Helen Scott has not been proven. What you or I happen to believe is, like it or not, of no account. Just as important, however, is the fact that vast doubts still hang over Sinclair’s innocence. The old formula does not apply.
Confidence in the courts and the Crown Office has been undermined badly. Neither institution is entitled to behave as though the fact is of no account in its august proceedings. The public, whom justice serves, has been insulted. What might we do about that?”
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My letter read as follows:-
“Ian Bell wants an explanation for the failure to convict Angus Sinclair of the World’s End murders. The Lord Advocate will come to parliament to put forward the Crown Office’s position.
However, it is the not the role of the prosecutor to lead every single piece of evidence recovered in an investigation. Decisions are made in courts every day about which witnesses should give evidence and what lines of inquiry should be put before the court.
The Lord Advocate will, presumably, offer her comments on this, and the wider issues identified by The Herald regarding the decision not to bring other cases before the court at the same time.
However, as far as Mr Bell’s criticisms of Lord Clarke are concerned, these are entirely unfair. The “no case to answer” submission is the defence’s chance to say: “Even if all the prosecution says is true, there is not enough evidence to establish guilt.” Such a submission can only be made when the prosecution closes its case. It is wrong to accuse Lord Clarke of cutting short the trial. He could only consider the evidence put before him – he could not intervene during the prosecution case to say: “Enough is enough.” He did not do so.
If the judge considers that there is insufficient evidence, then he would fail in his duty to let the matter go to the jury. In law, if there is insufficient evidence to convict a person, there cannot be a conviction.
Mr Bell asks why the judge has not explained himself. Your own website printed a transcript of Lord Clarke’s decision. As Lord Clarke concluded: “As far as the murders themselves are concerned, there was no forensic evidence linking the accused to the items apparently used to kill the girls, for example ligatures. Again, I am not satisfied that the evidence relied upon by the Crown can overcome that absence of such crucial evidence in providing a basis for an inference beyond reasonable doubt that the accused was implicated in the killing of the victims.
“It goes without saying that we are not in the realm of suspicion. The question for the court is rather, is there a sufficiency of evidence in law to entitle the jury safely to infer beyond reasonable doubt that the accused was guilty of all or any of the crimes libelled.
“I have considered that for the reasons given that there is no such sufficiency.” If evidence does exist which would have satisfied the judge, why was it not brought forward?
Mr Bell would like, it seems, to give the prosecution the chance to bring the case again, learning the lessons of the failed prosecution. How many chances should the state, with all its investigative power and resources, have to establish guilt in a criminal trial? The law says only one. Where is the justification for this being changed?
Despite Mr Bell’s comments, it is not the role of the jury to establish the innocence of the accused. It seems surprising that Mr Bell should suggest a shift in the burden of proof in criminal cases.
The police will rarely say after an acquittal that it was the correct verdict. In this case, as in many previous causes celebres, the implication is that there was lots of “good evidence” which was not brought or which could not be brought before the court. There are rules of evidence to determine what evidence can, fairly, come before a trial. If evidence fails to meet these standards, it cannot be brought. These rules of evidence have grown up over many years and for good reasons.
The old saying – “Hard cases make bad law” – comes to mind. Here a man with a string of serious convictions has “got off”. Now we know his record, the assumption is that he must have been guilty and, therefore, someone, whether the prosecutor or the judge, has got it wrong. Would there have been the same outcry if the accused had been a man of unsullied character, with no criminal convictions, or would we now have an outcry about why an innocent man was put through this ordeal, when the prosecution evidence could not get over the first hurdle?
To leap, based on this one case, to the conclusion that the public has been insulted by the court not convicting Mr Sinclair on these charges is unfair and itself in denial of the facts.”
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The following day the respected and learned Advocate Brian Fitzpatrick responded to my letter.
Mr Fitzpatrick commented :-
“We all should be concerned that the moral authority of our legal system in the eyes of the public should not be undermined by the distortion of the protections of our criminal justice system. It is just a coincidence that the man accused of these offences is in custody for other serious offences but otherwise he would have walked free from court.”
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As the new proceedings in respect of Mr Sinclair move forward, we will get the chance to see how keen the High Court will be to overturn acquittals based on “new evidence”.
In the corresponding provisions for appeals against conviction based on “new evidence” it is fair to say that a strict interpretation is applied by the court. It takes a very good explanation to persuade the High Court to consider alleged “new evidence” in those circumstances, let alone overturn a conviction on those grounds.
The Lord Advocate has chosen a very difficult case, it would appear, as a test of the legislation. I suspect there will be much written about the process yet.
Random Thoughts Re Scots Law by Paul McConville 