by Tom Wood
And there was another casualty – the reputation of the Scottish Justice System had taken a body blow. Behind the closed doors at the Crown Office this was surely recognised, and to their credit, instead of hunkering down and letting the storm blow over, the Law Officers and the Secretary for Justice in the Scottish Government, Kenny MacAskill, set about the slow and difficult process of putting matters right.
The obstacles were many. It is a strict convention that the judge and Advocate Depute Prosecutor should not be criticised after the failure of a trial. This is understandable as it serves to protect the independence of judges and prosecutors, who, it is assumed, always act in the best interests of justice and the rule of law. The motives of the judge and prosecuting Advocate Depute in the first World’s End trial were never in question – but they got it wrong. The Advocate Depute should have presented much more of the available evidence to the court, and the judge should have allowed this evidence to be presented to the jury. As it was, the failure of the case represented, in the words of one senior legal figure, ‘The greatest miscarriage of justice in Scotland for forty years.’ And because of the ‘double jeopardy’ rules embedded in Scots Law there could be no retrial. Angus Sinclair had ‘tholed his assize’, and as the law stood could not be retried for the same crime.
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Double Jeopardy
Double jeopardy, put simply, is a procedural defence that forbids a defendant from being tried again on the same or similar charges following a legitimate acquittal or conviction. The origins of the precept lie far in the past, when the death penalty could be applied for a number of crimes, not just for murder. It was seen as a defence against the arbitrary retrial of an accused until a conviction was secured. In a time before the checks and balances that now apply in the Criminal Justice System, it was a vital safeguard to those who found themselves in the dock. Established as a fundamental guarantee of fairness, by the twenty-first century the double jeopardy rule was outdated for a number of reasons. For a start, the death penalty had long since gone, and the routes for appeal against conviction had increased to ensure all convictions could be thoroughly tested.
Fundamental problems with the concept of double jeopardy were highlighted by significant developments in many branches of forensic science and investigative techniques, which have been described earlier in this book. Suffice to say, these techniques had developed yet further in the thirty years since the World’s End murders. This meant that the evidence available in the 1970s could be augmented out of all recognition by techniques such as DNA analysis, the use of lasers and the latest investigative procedures. In other words, old evidence viewed through a twenty-first-century lens could provide a mass of crucial information that could not have been known at the original trial. With serious crimes like murder and rape, such developments have had enormous consequences, and since the 1990s police forces throughout the western world have been successfully applying these new techniques to previously unsolved or cold cases. But of course in cases where defendants had already been tried and acquitted, the double jeopardy rule would forbid retrials, regardless of what new evidence might have come to light. In many jurisdictions, including England and Wales, Canada and Australia, the iniquity of this was recognised and the double jeopardy rule was repealed for serious cases where there was new and important evidence. But in Scotland, where the legal establishment tends to be conservative, the double jeopardy rule remained firmly in place, with any challenge sure to be firmly resisted by a legal profession determined to defend the foundations of the highly regarded justice system.
To change the double jeopardy rule required not only the considerable political will to enact legislation but also the support of senior legal figures in Scotland. This was no easy task, and without such a compelling case as the World’s End murders it might never have happened. Several of the key players in the original failed trial in 2007 had clearly been ill-suited to the task but now things were very different. The Justice Secretary in the Scottish Government, Kenny MacAskill, had been a lawyer by profession long before he entered politics. MacAskill had a deep knowledge and healthy respect for the legal establishment, but that did not prevent him confronting it when necessary or from taking on powerful interest groups when required. He had shown this in his determination to address Scotland’s alcohol problems even when it meant conflict with the rich and powerful alcohol industry. Now he was prepared to take on the legal establishment, and galvanised by the outcome of the 2007 World’s End trial he set about gathering political support to change the ancient double jeopardy rules.
Given the pressing programme of legislation, the complexity of the task and the many other Government priorities, it says much for MacAskill’s determination that he succeeded in this major change to the law. But political will on its own would not have been enough without the active support and energy of the senior law officers of Scotland, the Lord Advocate Elish Angiolini and the Solicitor General Frank Mulholland. The offices of Lord Advocate and Solicitor General are among the most ancient and powerful in Scotland. All criminal prosecutions are raised in the name of the Lord Advocate, who is a member of government, and it is the Solicitor General who is responsible for running the business of the Crown Office Prosecution Service. Traditionally, these senior law officers were men who had come through the same public schools and universities to the same top law firms and the Faculty of Advocates, from whose small elite membership the law officers had usually come. After a term or two in office, depending on the fortunes of their political allies, the law officers invariably become High Court judges. It is astonishing just how long this system had prevailed, and how well most of the incumbents had discharged their duties. Nonetheless, it was ripe for change. Elish Angiolini and Frank Mulholland were part of that change and had come from very different backgrounds from their predecessors. Neither had come through the public school/top university/Faculty of Advocates route (although both latterly became members of the Faculty). Instead they had worked their way through the Procurator Fiscal Service to the top of their profession. Both were extremely able, fine examples of success through merit, and perhaps because they had come to the top the non-traditional way were more prepared to challenge the legal status quo.
Both Angiolini and Mulholland had been in post at the time of the 2007 trial, and while they publicly defended the outcome, along with the way the judge and Advocate Depute handled the proceedings, they undoubtedly both felt disappointed with the outcome, especially Frank Mulholland. The Solicitor General had a long involvement with the World’s End investigation, having been senior Procurator Fiscal in Edinburgh and involved in the re-investigation in 2004. A man with a keen intellect, a strong sense of justice and some of the characteristics of a street fighter, one can only imagine his feelings as he watched powerless as the trial in 2007 slipped away. But he was not to be defeated, and in the days immediately following the 2007 debacle he took steps to ensure that, if possible, matters would be set right.
In the first instance he directed that all the evidence in the World’s End case be carefully preserved and the meticulous supervision of all case productions maintained. The immaculate preservation of productions over the thirty years since the crime had been highly unusual, and was of huge significance in a prosecution case always beset by defence suggestions of evidence contamination. I’m sure my successors in Lothian and Borders Police would have preserved all the productions anyway, but the immediate order from the Solicitor General sent a powerful message. In a very unusual move Mulholland also met personally, and maintained contact with, the families of Helen and Christine. He assured them that the investigation into the deaths of their daughters was unfinished business and that if it were possible he would ensure that justice would be done.
While Justice Secretary MacAskill prepared the political ground, the law officers set about bringing about one of the biggest changes in the Scottish Legal System for over a hundred years.
Shortly after the failed 2007
trial the Scottish Law Commission was asked to examine the question of the Crown’s right to appeal against ‘no case to answer’ rulings. As a result, the Scottish Law Commission recommended that in future the Crown should have the right to appeal ‘no case to answer’ decisions in serious cases. It was a start – never again could a case with the gravity of the World’s End fail for this reason without the possibility of appeal. But this decision did not affect the double jeopardy rule. That would be a bigger challenge.
The enactment of any new statute takes time and needs considerable political support. A change in the law as controversial as the double jeopardy rule met the expected resistance from conservative sections of the legal profession, but point by point it was argued through. It’s often said that bad cases make bad laws, in other words that legislation enacted as a result of a specific case often produces flawed legislation. This might well be true, but while the World’s End case is often cited as the main reason why the double jeopardy rule was abolished, it was nonetheless a change in the law that was long overdue.
By summer 2011 Elish Angiolini had stepped down as Lord Advocate and Frank Mulholland had replaced her. The same year, all obstructions overcome, the Double Jeopardy (Scotland) Act 2011 was passed into law by the Scottish Parliament with cross-party support, bringing Scotland into line with most other developed legal systems. Very significantly, it was retrospective legislation. Enacting retrospective legislation is unusual but in the case of the World’s End it was of course essential given that the murders were committed decades before. But it wasn’t going to be easy. Section 4 of the new legislation states that
A person who, on indictment in the High Court (the original indictment) has been acquitted of an offence (the original offence) may, if the conditions mentioned in Sub Section (3) are satisfied, be charged with, and prosecuted anew for – the original offence or another relevant offence.
Importantly, the criterion laid out in Sub Section (3) was explicit – a retrial would only be considered by the High Court if
There is new evidence that the person committed the original offence or similar offence, and that the Crown had been granted authority to bring a new prosecution by the High Court.
In another section it is made clear that the High Court may set aside the acquittal only if satisfied that the case against the accused is strengthened substantially by new evidence.
It was a tough standard to meet. In the World’s End case the demand for new material meant that the mass of evidence not presented in the 2007 trial did not qualify. We believed it was important material and were bitterly disappointed that it had not been presented in 2007, but it had been available for that trial and therefore it was not new in 2011. We had to find yet more.
The Scottish Government, Kenny MacAskill the Justice Secretary, and above all the law officers, particularly the Lord Advocate Frank Mulholland, had moved mountains to change the law. It was now the job of detectives and forensic scientists to find new and compelling evidence.
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New and Compelling Evidence
During the re-investigation of the World’s End case in 2004 we had gathered a mass of evidence which clearly pointed to Angus Sinclair and his brother-in-law Gordon Hamilton as being responsible for the deaths of Helen Scott and Christine Eadie. We also had circumstantial evidence to link Sinclair to the deaths of at least three other young women murdered in the 1970s, but the complete absence of forensic evidence meant these cases went no further. We were hugely disappointed that Sinclair would never be called to account for all his crimes, but we were confident that at least we had a strong case with the murders of Helen and Christine. But during the trial in 2007, we watched in horror as much of our evidence was not used by the Crown or heard by the jury.
As well as the strong DNA evidence linking Sinclair and Hamilton to the girls, we also had compelling evidence that pointed to the nature of the contact between Sinclair and Hamilton and their victims – evidence that would have refuted Sinclair’s absurd defence of consensual sex and instead pointed to the direct involvement of Sinclair and Hamilton in the violent murders. We felt that all the evidence painted a complete picture – one which any reasonable jury would have seen as unequivocal. In the event, during the trial they never got the chance to see the whole evidential picture or even to make a decision based on the sparse evidence they did see.
Among the evidence not used by the Crown was critical low-copy number DNA from the articles of the girls’ clothing that had been used to bind and strangle them. As already mentioned, low-copy number DNA is at best indicative rather than conclusive. There was insufficient material found in the post mortem samples taken from the girls to positively identify a match to Sinclair and Hamilton. Consequently, low-copy number DNA evidence was of less direct value, but still important as background or contextual evidence. On the tights that had been used to strangle Helen, scientists identified particles of DNA from Helen herself, from Hamilton and from Sinclair. The strongest match of course was from Helen – they were the tights she had been wearing the night she was killed. The next strongest match was to Hamilton, with traces of a DNA profile matching Sinclair’s making up the remainder. But whereas Helen’s DNA profile was complete, Hamilton’s and Sinclair’s were partial.
On Christine’s tights, used as ligatures to bind her, low-copy evidence was even stronger. Once again the DNA of three people – Christine, Hamilton and Sinclair – was found. Again Christine’s profile was by far the strongest – the tights were hers – and again there were significant traces of DNA particles with matches to Hamilton’s and Sinclair’s profiles. No other DNA alleles were found on either pair of tights – refuting Sinclair’s defence that after having had consensual sex with him and Hamilton, the girls were murdered by someone else.
In 2007 low-copy number DNA evidence would not have been enough to convict Sinclair on its own, but it would have helped complete the picture for the jury, since it is extremely unlikely that Hamilton’s and Sinclair’s DNA would have got on to the ligatures other than by their tying them at the time Helen and Christine were murdered.
We had another strong piece of supporting evidence provided by an expert on knots. The study of knots is one of those fascinating but obscure branches of forensic examination, but in my career the opinions of experts in knot-tying have proved immensely useful on a number of occasions. The materials that are used and the symmetry with which knots are tied are both significant.
From the very start detectives and scientists had seen the knots tied in the ligatures used to bind Helen and Christine as important – so much so that for many years they were carefully preserved, untouched until new technology proved how important they were in terms of low-copy number DNA. But there was something else just as interesting about the knots. Knots on the garments used to bind and strangle Christine were reef knots, whilst granny knots were used in Helen’s case. This was important because, being creatures of habit, we usually tie knots in the same way. It is highly unlikely that one person, during the frenzy of a rape and murder, would have used different knots on each victim. Once again this clearly pointed to the involvement of two men. Not until we discovered that Sinclair had been employed making fishing nets during his early years in prison did the significance of this strike us – reef knots are commonly used in making commercial fishing nets. Tying reef knots would have been second nature for him. It was another piece of evidence that was not powerful enough on its own to convict him, but taken with other strong strands of evidence, it would have helped complete the overall picture for the jury.
And there was one last piece of very sad evidence that the jury did not hear. Helen’s boyfriend had been going out with her for three years, since school days. They were close but had never had sex. During our investigation we had come to realise that Helen and Christine were little more than children, a fact that was poignantly underlined by her boyfriend when he said that Helen had been a virgin on the night she died. The suggestion by Sinc
lair that she had consensual sex with two men she had met a few hours before her death was as ludicrous as it was repugnant. The simple evidence of Helen’s heartbroken teenage boyfriend would certainly have made an impact on the jury, had they been allowed to hear it.
We had other forensic evidence showing fibres found on the girls’ clothing as being identical to the upholstery of the Toyota owned by Sinclair in 1977. We even had some eyewitness identification of Sinclair from outside the World’s End pub in October 1977, but again none of this evidence featured in the 2007 trial.
But that was all in the past – it was compelling evidence, at least in our eyes, but it was not new. It had all been available for the 2007 trial so it could not be used as a reason for a retrial under the new double jeopardy legislation. We needed to find yet more fresh and compelling evidence. Fortunately developments in forensic science were coming thick and fast. And in the police some old champions were still in place. Some new ones, too young to have been involved in the original case, were also keen to play a part in the investigation. The World’s End was never an ordinary investigation: so horrifying were the deaths of Helen and Christine that generations of police officers, myself included, saw ourselves as having a personal obligation to settle an unpaid debt. This had been true over the years and it was just as true when the final team of investigators joined the long line of officers who had been involved in the case over three decades. We were all absolutely determined to deliver justice for Helen, Christine and their devastated families.
Foremost among the investigators was Allan Jones, by 2011 a Detective Superintendent in charge of major crime investigation in Lothian and Borders. Allan had been involved in the case from his earliest service as a police cadet, and as he rose through the ranks he played an active part and was involved in many of the developments as they unfolded over the years. In the late 1990s he led the first DNA screening exercise into the enquiry, involved the National Crime Faculty in their first review in 2001 and then led the consequential DNA elimination swabbing exercise. Allan was one of the senior officers who pushed hardest for the involvement of the English Forensic Science Service, convincing me that the cost, time and political obstacles would be worthwhile. This led to the first identification of the DNA profiles on the items used to strangle the girls which we later matched to Hamilton. Finally it was Allan, by this time a Detective Inspector, with his boss Detective Superintendent Ian Thomas, who persuaded me to agree the funding to take forward the year-long familial DNA swabbing that eventually identified Sinclair. During the 2004 investigation Allan, then a Detective Chief Inspector, had responsibility for the overarching forensic strategy – an obvious choice given his superb grasp of the case’s forensic aspect.