Angus Sinclair Case

– in the Scottish Parliament at 2:15 pm on 13 September 2007.

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Photo of Alex Fergusson Alex Fergusson None 2:15, 13 September 2007

The next item of business is a statement by Elish Angiolini on the case of Angus Sinclair. The Lord Advocate will take questions at the end of her statement and there should therefore be no interventions.

The Lord Advocate (Elish Angiolini):

Presiding Officer, I am grateful to you for allowing me to address Parliament on this important issue. Some of the details of what I have to say are necessarily highly distressing and of a sexual and violent nature.

On 16 October 1977, the bodies of Christine Eadie and Helen Scott, both of whom were only 17, were found in East Lothian, a few miles apart. They had been bound, gagged, beaten, raped and strangled. As members are aware, on Monday of this week, Angus Sinclair was acquitted of their murders. That result was devastating for their families who, after 30 years, had hoped for answers to their questions about the dreadful events of October 1977. The outcome was also deeply disappointing for the police and prosecution teams who worked on the case. I can, however, advise Parliament that Alan Mackay, the advocate depute, is now safe and well with his family.

Following those tragic deaths, there ensued a long and extensive murder investigation, stretching over many years, led by Lothian and Borders Police. Despite the rigour and determination of that investigation, no suspects were traced at that stage. However, the investigation was never closed, and work continued to find the perpetrator of the crimes. Lothian and Borders Police followed very carefully the advances in forensic science, particularly in the field of DNA, and their unrelenting dedication in that area ultimately led them to identify Angus Sinclair as a suspect in the murders of Christine Eadie and Helen Scott.

In 2004, all of the evidence that had been ingathered by the police in the course of the investigations carried out up to that point was carefully analysed by a senior member of Crown counsel. An initial view was reached that a case had been formed against Angus Sinclair in relation to the murder of both women. A view had also been taken that, had Angus Sinclair's brother-in-law, Gordon Hamilton, been alive, he too would have been a suspect in relation to both of the murders.

There then followed a further, very thorough and lengthy investigation, conducted by Lothian and Borders Police, who by this time were working in close liaison with the Crown Office and Procurator Fiscal Service, with particular input from Crown counsel. At the conclusion of that investigation, towards the end of 2005, all of the evidence available was considered in extensive detail by Crown counsel. At the beginning of 2006, the law officers and Crown counsel reached the view that there was sufficient evidence to indict Angus Sinclair for the murders of Christine Eadie and Helen Scott. That decision was not taken lightly; it was reached after a very careful assessment of all the available evidence by prosecutors at the highest level with many years' experience. Crown counsel believed that there was sufficient evidence upon which Angus Sinclair could be convicted of both murders.

In passing, I have noted that some commentators have suggested that the decision to prosecute was political. There is no question of the decision to prosecute being a political one. I find that suggestion absurd and utterly without foundation. If the view had been taken that there was insufficient evidence to support the charges, there would not have been a prosecution. That, of course, is why there has been no prosecution for some of the other so-called operation trinity murders, which I will refer to later this afternoon.

Following the decision to proceed with the case, the prosecution team who had been preparing the case came under the control of the then area procurator fiscal, Frank Mulholland QC, who is of course now the Solicitor General, seated beside me. An enormous amount of work was carried out by that team to ensure that the case was properly prepared for trial. The team included an experienced principal procurator fiscal depute and a former chief inspector, who joined the team to provide precognition support. An advocate with considerable experience in prosecution work, Gordon Balfour, was also appointed to the case, and worked with the prosecution team from its very early stages, as a Crown junior.

All the available evidence was considered in detail by the team. Witnesses were interviewed, productions were examined and the legal issues repeatedly analysed. That was done alongside members of Lothian and Borders Police and, in particular, the dedicated police support team for the families of Christine Eadie and Helen Scott, whose continuing work and support at all stages of the investigation was invaluable.

I am satisfied that the prosecution team had the necessary ability, experience and dedication to ensure that the case against Angus Sinclair was fully prepared for trial. Senior advocate depute Alan Mackay was selected to prosecute the case in October 2006. I was happy with that decision at the time, and I remain so now. Alan Mackay is a highly regarded and extremely able advocate depute, who has shown great dedication to the prosecution service over the past four and a half years. He joined the ranks of Crown counsel in April 2003 and was appointed as a senior advocate depute in January 2005.

During his time as an advocate depute, Alan Mackay has been involved in many difficult and important cases. In 2004, he successfully prosecuted Michael McArthur for the appalling murder of Amy Anderson despite McArthur's attempt to cover up the killing by dismembering the victim's body, giving false statements to the police and falsely implicating her boyfriend in the crime. In 2005, he steered the prosecution to convictions against two masked gunmen who attempted to murder a rival in a drugs turf war in north Edinburgh. In 2007, he prosecuted Thomas McAlpine, a 15-year-old boy who was charged with murdering his grandmother by stabbing her to death. He has also carried out significant amounts of legally demanding work before the appeal court.

In short, Alan Mackay has made an outstanding contribution to the prosecution of crime in this country, and I very much hope that he will continue to do so. The prosecution of a case of this nature is an enormous challenge, and there is a heavy weight of responsibility on the advocate depute. It is clear that Alan Mackay was hugely disappointed by the way in which events developed as the trial drew to a close, but I believe that that was simply evidence of his commitment to the case.

The trial commenced in Edinburgh High Court on 27 August 2007. The advocate depute was supported in court by Gordon Balfour, an advocate who, as I mentioned, had been working with the prosecution team for some time and had supported the Crown in many difficult and long trials in the past. Given the current Solicitor General's detailed knowledge of the case from the time he spent leading the prosecution team preparing the case, he remained in close touch with Crown counsel and the team until the trial's conclusion and was available to discuss the case with the advocate depute if required. All necessary support was available to Alan Mackay at all times.

The trial concluded on Monday 10 September 2007, when the judge upheld the defence submission that there was no case to answer and acquitted the accused. The defence argued that there was insufficient evidence upon which to ask a jury to convict Angus Sinclair, and the judge, Lord Clarke, agreed with that proposition.

The decision at that stage was one for the judge and the judge alone. That is our system of law and, as the law stands, the judge's decision is final and we all have to respect that. Although, in other situations, the Crown in Scotland may appeal the decision of a judge, it has no right of appeal against a decision made in those circumstances.

Although I would not normally think it appropriate as Lord Advocate to comment following such a judgment, given the extent of the misunderstandings about the case and the Crown's approach, I feel that I have to set the record straight about the Crown's understanding of the case and the evidence that was made available to the court.

I am of the clear opinion that the evidence that was made available to the court was sufficient to be put before the jury to allow it the opportunity to decide on the case against Angus Sinclair. Let me set out the Crown case presented to the court.

Christine Eadie and Helen Scott were last seen alive together on 15 October 1977 outside the World's End pub in Edinburgh. A witness, Mr Rafferty, saw them together at around 11 pm that evening, walking away from the pub with two men. Neither of them returned home that evening and neither of them was seen alive again.

On 16 October 1977 at around 2 pm, the body of Christine Eadie was found and, at around 6 pm the same day, the body of Helen Scott was discovered. The bodies were approximately four miles apart and 14 miles from the World's End pub.

The body of Christine Eadie was found at Gosford sands. She was lying at the high water mark on her back and she was completely naked. Her legs were outstretched and slightly apart. There was a gag in her mouth, which was later confirmed to be a pair of pants. They were held in place by a bra, tied round her head. Part of a pair of tights formed a ligature round her neck, and her hands were tied behind her back, also by part of a pair of tights.

Helen Scott's body was found in a field off the Huntington to Coates road, about 25yd from the entrance. She was lying face down and her hands were tied together behind her back with a belt. She was naked from the waist down, and her pants were lying, rolled up, to the left of her head. A pair of tights and a belt belonging to Christine Eadie had been used to form a ligature around her neck. She was still wearing her coat.

All the bindings or ligatures were applied while the two young women were still alive.

Professor John Mason, a pathologist, gave evidence at the trial about the injuries that were found on both girls at post mortem examination. Christine Eadie was found with congestion and haemorrhages in her eyes, indicative of strangulation, and an area of pallor consistent with a strap or use of a gag of some sort across her mouth. She was also found to have bruising of her chin, consistent with being struck with a blunt instrument or striking something blunt, and marks and abrasions on her neck, consistent with strangulation with a ligature and the abrasions being, for example, fingernails. Professor Mason believed that that could indicate an attempt to prevent the strangulation taking place and that an external injury to the lip could also be from trying to stop the ligature. She was also found with internal mouth injuries, which were considered likely to have been caused by something being forced into her mouth, and well-defined ligature marks on her wrists, consistent with the hands being tied together. Professor Mason stated that a recent bruise over the front of both upper thighs and an abrasion over the lower front of the right knee were consistent with fingers or a thumb being used to push her thighs apart. The cause of Christine Eadie's death was certified as asphyxia due to strangulation with a ligature and by gagging of the mouth.

When Helen Scott was examined, she was found to have a black eye on the left side of her head and a bruise to the outer side of that eye, which was thought to have been caused by a blunt object such as a fist; an injury to the front of her ear and behind the ear, which was thought likely to have been made by the sole and heel of a shoe with some force; marks on her neck consistent with manual strangulation; an injury to the left of her chin, also consistent with ligature strangulation; abrasions on her arms indicating general violence towards her; and bleeding in the vaginal area associated with a tear and bruising to the left part of the hymen—Professor Mason gave evidence to the effect that this indicated penetration of some sort, which could be penile. The cause of Helen Scott's death was certified as asphyxia consequential upon strangulation.

Transport was used to convey Helen Scott and Christine Eadie from the World's End pub to East Lothian, where their bodies were found. Given the remoteness of the location, there was an inference that a vehicle must also have been used by the culprits to leave the sites at which the bodies were found.

Angus Sinclair was known to have links in the Edinburgh area and in 1977—the time of the murders—he owned a Toyota Hiace caravanette. He used that vehicle when he went on overnight or weekend trips with his brother-in-law, Gordon Hamilton.

By the time Sinclair was identified as a suspect in the case, the caravanette had been destroyed. However, samples of the upholstery that would have been used in that vehicle were obtained. Forensic scientists examined and compared fibres from that upholstery with fibres taken from Helen Scott's coat. This analysis provided strong scientific evidence that her coat had been in contact with fabric of the type that would have been used in the caravanette.

Helen Scott's coat was new—she bought it the week of her murder. The coat was of such material that fibres adhering to it would shed rapidly if the coat was being worn. There was, therefore, an inference that could be drawn that Helen Scott's coat, and therefore Helen Scott, had been in Angus Sinclair's vehicle close to the time of the murder.

Vaginal and anal swabs were taken from Christine Eadie. Semen was found on those swabs. A partial DNA profile was obtained from both the anal and the vaginal swabs, which matched that of Angus Sinclair. A full DNA profile was obtained from the swabs, which matched the profile of Hamilton. These findings were consistent with both Angus Sinclair and Gordon Hamilton having had sexual intercourse with Christine Eadie.

Vaginal swabs were also taken from Helen Scott. A partial DNA profile was obtained from these swabs, which matched that of Angus Sinclair. A DNA profile matching that of Gordon Hamilton was also found.

Two stains found on the back inner lining of the coat that Helen Scott was wearing at the time of her murder were examined. These were found to be a combination of semen and vaginal secretions. The DNA profile from the semen indicated that the probability of the semen stain on Helen Scott's coat originating from someone other than Sinclair was one in a billion.

Forensic evidence suggested that the stain had been caused by drainage from Helen Scott's vagina following sexual intercourse. This was because of the location of the stain on the coat and because the stain was found to contain epithelial cells from Helen Scott—epithelial cells being cells from within the vagina or an orifice such as the anus or from within the mouth.

All of this was consistent with both Angus Sinclair and Gordon Hamilton having had sexual intercourse with Helen Scott. The evidence was also consistent with Helen Scott not having put her pants back on after that sexual intercourse. The drainage stain was found on her coat and no semen whatsoever was found on her pants. Given the positioning of the drainage stain and the lack of any such stain on her pants, there was an inference that following the intercourse she had been naked from the waist down but with her coat still on. When her body was found, it was in precisely the same unusual form of partial undress. There was therefore an inference that Angus Sinclair had sexual intercourse with Helen Scott not long before her death.

That inference is supported by the use of Helen Scott's pants as a gag. In circumstances where it could be inferred that her pants were not put back on following sexual intercourse, the jury would have been entitled to conclude that whoever undressed Helen Scott to have sexual intercourse with her was also responsible for placing the pants into her mouth as a gag.

The Crown case was a circumstantial one; it required inferences to be drawn from the evidence that was made available. Those inferences were that the same persons killed both of the young women; that they were transported from the World's End pub to East Lothian in a vehicle of some sort; that Helen Scott had been in Angus Sinclair's caravanette close to the time of the murder; that Angus Sinclair and Gordon Hamilton had sexual intercourse amounting to rape with Christine Eadie after which she was found bound, gagged, beaten and naked; that Angus Sinclair and Gordon Hamilton had sexual intercourse amounting to rape with Helen Scott after which she too was found bound, gagged, beaten and in a state of partial undress; that Helen Scott had not put her pants on after sexual intercourse; that the murders of both girls were sexually motivated, both having been gagged with pairs of pants, tied up using items of underwear and the bodies left naked or partially naked with evidence of sexual contact with two men; that the sexual activity took place at a time close to the time of the murders; and that the two men who were involved in the sexual activity committed the murders. In my view, that evidence, which was provided by the Crown, established a circumstantial case against Angus Sinclair.

I would like to say something about the nature of a circumstantial case. It is not every case that has direct evidence to implicate an accused. In many serious crimes there will, for obvious reasons, be no eyewitnesses. However, the case can often be built up by establishing a set of facts that, taken together, point to the guilt of the accused. This was such a case.

It is in the very nature of circumstantial evidence that it may be open to more than one interpretation and that it is precisely the role of the jury to decide which interpretation to adopt. It is not necessary that each piece of evidence that the Crown leads should point exclusively to the guilt of the accused. There may be other interpretations of those facts, but what is important is whether the several circumstances taken together as a whole can support the inference of guilt. It was the Crown's position that the evidence in this case allowed such an inference to be drawn.

It has been suggested that the case was not prosecuted properly and that mistakes were made that led to essential evidence not being placed before the court. On the basis of the information that I have been given, I reject that suggestion.

It is for the advocate depute who conducts a trial to decide what evidence should be presented and, if particular evidence is to be presented, at what stage in the trial it should be introduced. Criminal trials are fluid and dynamic. It is impossible to predict exactly how evidence will come out during a trial, regardless of the preparation that has gone before. When a trial has commenced, the only person who can make an informed decision on the evidence that should be led is the prosecutor in court—that is, the advocate depute. Regardless of any views that others may hold, let me be absolutely clear that I will never interfere with an advocate depute's discretion on matters of that nature.

I do, however, wish to deal with certain comments that have been made about the evidence that was not presented to the court. That evidence was obtained after detailed forensic examination and was low copy number DNA at a low probability, providing a partial match to the DNA profile of Angus Sinclair. That DNA evidence was found on items of underwear that had been worn by Christine Eadie and Helen Scott—the same items that had been used as ligatures or bindings by the perpetrators of the murders. The DNA that was found was cellular. It was not extracted from bodily fluids such as blood or semen. Furthermore, it was only in trace amounts. The finding of trace amounts of cellular DNA, even if it is found inside knots, is consistent with touching or handling, so it could have shown only that Sinclair might have come into contact with the underwear of Christine Eadie and Helen Scott. Of course, stronger DNA evidence of contact had already been presented to the court.

Furthermore, the technique that was used was very sensitive, and results from examination of the ligatures disclosed that there had been contamination from other sources. That undermined the significance of the partial trace profile, which matched that of Sinclair. I quote from the scientist involved:

"it follows therefore that the relevance of these results requires careful consideration in the context of this case given the sensitivity of the techniques employed and the possibility that the DNA detected is unconnected with the offence under investigation."

The advocate depute gave careful thought as to whether the evidence should be led. He weighed up the limited benefit of the material against the potential difficulties. The evidence was not straightforward. It was likely to be technical and complex and it did not carry the same weight as some of the DNA evidence that was already before the court, on which he was relying to establish the link between Sinclair and both young women's deaths.

The situation would have been very different if the partial DNA profile of Angus Sinclair had been found on rope or wire or some other external item that had been used as a ligature or binding. Evidence of that nature would be very powerful and likely to be compelling for a jury, but that was not the case: the items in question were underwear of the victims, which he was highly likely to have come into contact with and touched in the course of sexual contact, which had already been established.

Although there has been much critical comment about the decision not to present that evidence, it is my view that the decision on that point was entirely one for the advocate depute to make. I am satisfied that the advocate depute took a reasoned decision on this particular piece of evidence and that the decision was one that fell properly within his discretion as the advocate depute presenting the case.

I would also like to make clear that the Solicitor General and I are of the view that even if the advocate depute had chosen to lead the evidence in relation to the DNA on the ligatures, given the way in which the judge approached the case it is unlikely to have persuaded him to repel the defence submission. The judge considered that there was evidence of sexual contact between Angus Sinclair, Christine Eadie and Helen Scott, but he took the view that no further inferences could be drawn from that evidence. In his view, the evidence of sexual contact was neutral as to whether Sinclair was involved in using violence or force against the girls and neutral as to whether Sinclair was present when the actions of violence and force took place. Given the judge's approach to the very limited inferences which he considered could be drawn, it is difficult to see how the presence of the DNA on the tights and bra, which could have been expected to come from Sinclair around the time of sexual contact, could logically have altered the judge's decision in any way.

It has been suggested that only 20 per cent of the evidence available to the advocate depute was presented at the trial. Invariably in cases of this size and complexity, some witnesses and items of evidence are not referred to at trial, depending on the way in which the case progresses. It is a fundamental misunderstanding of the case to suggest that less evidence than necessary was presented to the court. A significant amount of evidence was agreed either prior to or during the trial, which can happen only if the evidence is listed on the indictment in the first place. Furthermore, some evidence was listed to ensure that any challenges to the evidence from the defence could be met, if required, and to ensure that there was further evidence available to prove the Crown case if any particular piece of evidence did not come out as expected. That is perfectly normal procedure, as the defence is under no duty to give any notification to the Crown of the way in which it intends to approach the trial. In deciding what evidence to lead, the advocate depute must also consider the quality and value of the evidence.

Many comments have been made about the way in which the Crown handled the case against Angus Sinclair as a whole, and several articles in the media have suggested that Sinclair should have been prosecuted for a total of six murders, not only those of Christine Eadie and Helen Scott. Again, that is simply not correct.

While the investigation into the murders of Christine Eadie and Helen Scott was on-going, Strathclyde Police was carrying out its own investigations into the murder of four young women, all of whom were last seen alive in Glasgow in 1977 and thought to have been murdered between 11 June and 3 December 1977. Like Lothian and Borders Police, Strathclyde Police put an enormous amount of time and effort into the investigation of those murders in an attempt to trace the person or persons responsible. The investigation into all of those and other murders has come to be known as operation trinity. I wish to record my appreciation for the extraordinary efforts that the police put into investigating those cases.

As the investigations progressed, some significant similarities between the four murders being investigated by Strathclyde Police and the murders of Christine Eadie and Helen Scott began to emerge. The possibility of arguing that the same person committed all the crimes was considered, using the apparent proof of identification of Sinclair as being responsible for the murders of Christine Eadie and Helen Scott to identify him as the perpetrator of the other four murders.

There is a rule in Scots law that when there is sufficient evidence to implicate an accused in one crime, and when the circumstantial evidence demonstrates beyond a reasonable doubt that it was the same person who committed another crime, the jury can convict the accused of both crimes. That is sometimes referred to as the Howden principle, as the rule derives from the case of Howden v Her Majesty's Advocate. It is in fact sometimes referred to as a signature, because it is not a case simply of establishing that the two crimes are similar in type or in the manner and circumstances of their being committed. The essential question is whether the similarities are sufficiently unique to establish the identification of the accused as the perpetrator of both crimes. Are the similarities so great that the accused effectively left his signature when he committed each of the crimes?

There will rarely be such clear similarities in different crimes as to allow prosecutors to use the principle. As members will appreciate, it is even more difficult to prove a murder charge of a historical nature when there is no direct evidence of any sort against an accused person. Crown counsel at the most senior level studied at length all of the evidence ingathered by both Lothian and Borders Police and Strathclyde Police to determine whether the cases could be linked using the Howden principle. Ultimately, the view was taken that they could not be.

I do not consider it appropriate to provide members with details of the available evidence in murder investigations that have not been brought to a conclusion and that could be the subject of future criminal proceedings, but I can say that there was no DNA evidence in relation to the four Strathclyde murders. Indeed, the key items of evidence were no longer available in three of the cases, and it was impossible to extract forensic material in the fourth case. There was no confession evidence. Despite Strathclyde Police's best efforts to establish a connection, there was no direct evidence to implicate Angus Sinclair in the murders it was investigating. As such, the Crown would have had to rely entirely on the Howden principle.

There were undoubtedly similarities between the cases, but there were also significant differences that could not be overcome, including differences in the circumstances of the individual cases and in that the murders of Christine Eadie and Helen Scott appear to have involved two men—Sinclair and Hamilton—whereas there was no evidence of two men being involved in any of the other murders. It would also have been impossible to exclude Hamilton as the sole culprit in the other murders. The position was further weakened because in one of the cases, involving the murder of Frances Barker, another man—Thomas Ross Young—had already been convicted on the strength of evidence that directly implicated him. He is seeking to challenge that conviction as a result, in part at least, of information that was provided to his legal advisers and the Scottish Criminal Cases Review Commission by the Crown Office during the investigation, but the evidence that implicates him remains. Young could not have committed the other murders because he was in prison. The differences in circumstances and the possibility of at least three men being involved in one or other of the various cases meant that the Crown would have been unable to rely on the Howden principle. On that basis, after the most painstaking analysis of all the evidence, Crown counsel reached the view that the Howden principle could not be successfully invoked on this occasion. There was a sufficiency of evidence for the charges relating to Christine Eadie and Helen Scott, which there simply was not for the other charges.

The decision to proceed with only the Christine Eadie and Helen Scott murder cases was not taken for political or personal reasons, as has been suggested in certain quarters. The decision to do so was based on an assessment of all the available evidence, and it was made by the most able and experienced members of Crown counsel. The decision did not in any way reflect on the standard of the police investigation—indeed, I pay tribute to the officers who investigated the case with extraordinary determination and considerable ingenuity. The Crown Office and Procurator Fiscal Service worked closely with Strathclyde Police and Lothian and Borders Police prior to the final decision on the matter being taken, and although Crown counsel had to take the final decision, it was taken in close liaison with the officers who were involved. The lead officers in the investigations met Crown counsel before the decision was taken so that Crown counsel could explain its detailed reasoning.

Allegations have been made that the police were unhappy with the decision and that they thought that an error had been made. I noted that the assistant chief constable of Strathclyde Police, John Malcolm, said earlier this week that the views that have been expressed in the media by an unnamed police source or police officer are not the views of Strathclyde Police, which had worked closely with the Crown Office on the investigation and had understood its decision-making process throughout.

The Crown Office and Procurator Fiscal Service has an excellent relationship with Strathclyde Police and all the other police forces in Scotland. That relationship is based on professionalism, integrity and trust. We will continue to work together closely to ensure that perpetrators of crime are, where possible, brought to justice. We have certainly not closed the file on the four murder cases that I have mentioned.

Obviously, I am very disappointed by the outcome of the case. My deepest sympathies lie with the families of Christine Eadie and Helen Scott. The Solicitor General for Scotland will meet their families next week to try to answer any questions that they have about the case and the outcome.

The Crown raised the prosecution because Crown counsel believed that there was a sufficiency of evidence against Angus Sinclair. That remains Crown counsel's view. There was never any doubt that prosecuting Angus Sinclair for the murders of Christine Eadie and Helen Scott 30 years after the event on circumstantial evidence would be extremely difficult. I am disappointed that a jury did not have an opportunity to reach a verdict in the case, but I am satisfied that the decision to raise proceedings in a difficult and anxious case was correct. I commend the efforts of the police officers and procurators fiscal who have been involved in the investigations.

There will be occasions when persons accused of a crime are acquitted. The purpose of the criminal justice system is to test independently the evidence that the public prosecutor puts forward. On occasion, judges and juries will find that they are not satisfied with the available evidence in a case, particularly when it is not straightforward.

In my opinion, it would be wrong for the Crown Office and Procurator Fiscal Service not to raise prosecutions because it fears an acquittal and the inevitable criticism that would follow. If there is a sufficiency of evidence and it is in the public interest to prosecute, there must be a presumption in favour of prosecution, regardless of the fact that the case will be difficult and there is a possibility of an acquittal. I would not wish to lead an organisation that shirked the responsibility of taking such difficult decisions.

Decisions on whether to prosecute in any case must involve the exercise of prosecutorial expertise, judgment and discretion. The natural tension between the accountability of the public prosecutor and the vital independence of the prosecutor can make the prosecutor's life difficult.

The ability to resist political whim, pressure group or other public clamour on what or who should be prosecuted is vital. Equally important is the need to cast aside the pressure from the public's desire that someone, anyone, be charged for a heinous crime. Instead, prosecution must truly reflect the public interest in a considered, clinical and independent fashion. It is the prosecutor who is able to look dispassionately at all the available evidence and assess what can be made of it. Armchair commentators, however eminent, are just that.

In my experience, the process of prosecution decision making rarely receives unqualified, unanimous acclaim. Prosecution to please may be a quick fix. It may gain superficial popularity. But it would surrender the very foundations of that which supports a sound system of justice. That necessary independence should not, however, be used as an excuse for a lack of accountability.

In the past few days, we have gathered the information for this statement to explain the Crown's position and address the many queries that have been raised. There will, of course, be a thorough review over the next few months of the prosecution of the case. Any important lessons that we can learn will be taken forward.

It is essential that prosecutors at all levels are able to work without fear of an acquittal. The job is increasingly difficult. It must not be made more difficult because of fear that, when an accused person is acquitted by a judge or a jury, the prosecutor will be considered to have failed in their duty. If the role of the prosecutor is to remain independent, prosecutors must be confident that they can carry out their work without fear or favour.

As the Lord Advocate, I am happy to be held to account for the actions of the Crown Office and Procurator Fiscal Service—and for the prosecution of this case.

Photo of Alex Fergusson Alex Fergusson None

As I intimated earlier, the Lord Advocate will take questions on issues that were raised in her statement. I intend to allow until around 15:55 for questions, after which we will move to the next item of business.

Photo of Margaret Curran Margaret Curran Labour

I thank the Lord Advocate for coming to the chamber. She will be aware of the widespread concern throughout Scotland that these vile crimes have gone unpunished and that justice has not been done. My first concern is for the families of Helen Scott and Christine Eadie, who have suffered unimaginable torment over the past 30 years. I believe that the criminal justice system has let them down. I hope that the Lord Advocate appreciates the need for Parliament to scrutinise what went wrong in this case and to come forward with proposals to ensure that victims and their families are not let down in this way again.

Will the Lord Advocate provide details of when, and which, law officers were in contact with the advocate depute in the preparation and conduct of the trial? She made clear in her statement that the decision not to lead the DNA evidence was taken by the advocate depute alone. I ask her to confirm that. My understanding from what she said is that that was the appropriate decision. However, in such a complex and technical case, surely it would have been helpful for the advocate depute to have consulted one of the law officers.

Given that the trial ended on the decision of a judge and not a jury, does the Lord Advocate agree that there should be a right of appeal? Does she intend to make recommendations to the Cabinet on legislative and other changes to the criminal justice system? When her review is concluded, will she issue a full written report and return to the Parliament to explain the lessons that have been learned, so that we can address such issues in future.

The Lord Advocate:

Of course, although it can only pale in comparison to the pain that the families of Helen Scott and Christine Eadie must be feeling, no one could feel anything but the most extreme pain at the conclusion of the case—certainly not the prosecutor who devoted 18 months of his life to the conduct of the case.

On the question of the law officers' involvement in the case, as area procurator fiscal, Frank Mulholland supervised the preparation and investigation of the case before he was appointed as Solicitor General for Scotland. Since then, because of his previous role, he has continued to provide support to the advocate depute in the case up until and, indeed, during the trial.

On the question whether the Crown counsel consulted a law officer on the decision not to lead the DNA evidence, there was no such consultation nor, as I said in my statement, would I expect there to be. I appoint advocate deputes because I have absolute confidence in their judgment. They must have the independence to make such decisions except in very restricted and limited circumstances. The reason for that is not preciousness but because the only person who can determine what evidence should be led once a trial has commenced is the person who presents the case in court. The Lord Advocate, the Solicitor General and other Crown counsel will not have seen the responses of jurors to particular aspects of evidence or be able to tell the nuances of how the evidence has emerged during the course of the case. Nor will they be able to tell whether the evidence has come out as anticipated, because evidence on paper is often very different from the evidence that emerges during a trial. The only person who has a grip on what the sensitivity is of the evidence that should be presented is the advocate depute. For that reason, only the most eminent and able lawyers are appointed as Crown counsel.

On the question of a right of appeal, it is not appropriate that I, as the public prosecutor, should set the goalposts for where the evidence should be led. That is a matter for the Executive and for the Parliament. However, I have expressed my concern about the absence of such a right of appeal for the prosecutor in Scotland. Indeed, I raised the matter with the Minister for Justice some weeks ago, but I did not do so in the context of any particular case. Hard cases make bad law, so there should not be a knee-jerk reaction to a particular case. However, as the public prosecutor, I have raised that matter in another context.

On the question of the lessons to be learned, I am of course happy to return to the Parliament and to the Justice Committee to explain what lessons have been learned as a result of the review of the case.

Photo of Nigel Don Nigel Don Scottish National Party

Continuing on the issue of a right of appeal, I recognise that the Lord Advocate does not currently have that right, although such a right is available in other circumstances in summary cases. If such a right had existed in this case, would she have invoked it?

The Lord Advocate:

On such a hypothetical situation, it is difficult to speculate. However, given the Crown's submissions at the conclusion of the Crown's case and given what I have said about sufficiency, the Crown would have appealed in such a circumstance if the right had existed.

Photo of Paul Martin Paul Martin Labour

I echo Margaret Curran's comments about the families of the victims. They have behaved in an impeccable and constructive manner following the trial and they deserve justice.

On the conduct of the trial and in defence of Mr Mackay, the Lord Advocate said:

"It has been suggested that the case was not prosecuted properly and that mistakes were made that led to essential evidence not being placed before the court. On the basis of the information that I have been given, I reject that suggestion."

Will she confirm what information she has received? What other information might she receive at a further date that might allow her to review her decision that she has full confidence in Mr Mackay's prosecution of the case?

The Lord Advocate:

I am surprised at Mr Martin's comments. Clearly, the information that I have been given has been provided by the lawyers who were in court. I expect that I have been given an impeccable and accurate account of that from the Crown junior and the chief inspector who were present in court.

Clearly, the information that I have given to the Parliament today has been gathered over a number of days. We will have a much more thorough look at the matter. Clearly, I would return to the Parliament if something were discovered that was in any way inconsistent with the position that I have represented to the Parliament today.

Photo of Bill Aitken Bill Aitken Conservative

Both in the press and by other means this week, I have asked the Lord Advocate to answer three questions. First, was there a full appreciation of the difficulties involved in prosecuting this case, in view of the antiquity of the evidence? Secondly, was all the appropriate evidence led? Thirdly, was the approach to the matter influenced by other factors? This afternoon, the Lord Advocate has gone a long way towards answering those questions. In particular, I have to say that, had that additional evidence been led in court, I do not think that it would have taken the prosecution case much further.

However, the Parliament cannot be satisfied with this situation, which has resulted from the murder of two young girls in particularly horrible circumstances. Accordingly—and following on, to an extent, from the questions that were asked by Ms Curran—I ask the Lord Advocate whether she will consult again with the Cabinet Secretary for Justice with a view to an appeal provision being introduced under a particular section of the Criminal Justice (Scotland) Act 1995. Further, does she have any suggestions about how to avoid the obvious difficulties that would arise in that respect, such as the discharge of a jury in long and complex cases and whether it would be possible for the court of criminal appeal to make a determination in a short period of time, such as five working days, which would clearly be in the interests of justice?

The Lord Advocate:

As I have mentioned, I have raised the issue of the appeal with the Cabinet Secretary for Justice. Clearly, it is for the Executive, collectively, not for me, as an independent prosecutor, to influence that. It is a matter that the Parliament must consider. However, the idea about a period of five working days sounds reasonable, if such an appeal were to be constructed. Certainly, the notion of having to discharge a jury in the middle of a trial would be unappealing, given that evidence had been heard. I think that some creativity around how that would be constructed would be important in order to ensure that distressing evidence, which will have caused anguish and trauma to people who have had to hear it, does not have to be repeated because of a decision made at that stage.

Of course, the power of the judge to reject the Crown case at its conclusion, following a no case to answer submission, was introduced only in 1980. Prior to that, all evidence would have been put to the jury, unless there was what was known as a common-law submission before the jury. At that time, the right of appeal by the Crown was given, in summary cases, before a sheriff or a justice of the peace. However, that did not happen in solemn cases, which are those that are heard before a sheriff and a jury or in the High Court.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

The anguish of the victims' families can barely be imagined. Will the Lord Advocate therefore agree with me that this case highlights the need for greater openness on the part of the Crown Office, something for which I have long called and which I hope she will consider in the light of this case?

Does the Lord Advocate also agree that every criminal case comprises a series of judgment calls that are made during preparation and during the trial and which include any decision that is made by a judge or, indeed, a jury? Does she agree that, regardless of whether we agree with those individual decisions, they cannot be micromanaged from outside the process by people with no training and a sketchy understanding of the system who have not sat through the trial, particularly when the decisions relate to evidence? Does the Lord Advocate agree that this parliamentary chamber cannot and must not be allowed to become a criminal court or, worse, a witch hunt?

The Lord Advocate:

As I said in my statement, the decision about what takes place during the course of the trial must be with the prosecutor. There must be trust in the prosecutor to make decisions based on the way in which he or she perceives the evidence to have emerged in the case. The prosecutor has to make judgment calls, as do the judge and the jury. It is only in circumstances in which there is a right of appeal that the Crown will challenge that thereafter. Of course, as I said earlier, it is important that we all respect the decision of the judge.

Photo of Margaret Smith Margaret Smith Liberal Democrat

I thank the Lord Advocate for making such a full statement this afternoon. It is only right, given the notoriety not only of the case but of the judgment, that she, as the country's foremost law officer, should come before Parliament to answer our questions.

Before I ask my questions, I say, on behalf of my Liberal Democrat colleagues, that we remember in our thoughts today the families of Christine Eadie and Helen Scott. Our thoughts are with them.

I also place on record our appreciation of the work that has been done by Lothian and Borders Police officers and other law enforcement officers and officials, who have stuck doggedly to their task over many years.

The case also reminds us that our criminal justice system is based on the key premise that any of us, when accused of a crime, is deemed innocent until proven guilty. The job of the Crown Office and Procurator Fiscal Service is to build and present the case beyond reasonable doubt. Given Lord Clarke's judgment, it is clear that the service failed to do so.

Can the Lord Advocate tell us what inquiries are under way in the Crown Office and whether there is any independent element to those inquiries? Does she believe that any purpose would be served by the holding of a public inquiry or any other form of wider inquiry not only into this case but in relation to some of the comments that my colleagues have made, with which I associate myself? On the basis of her examination of the case so far, what lessons, if any, can we learn and what changes might she be able to suggest to the Scottish Government?

The Lord Advocate:

I agree entirely with the sentiments that the member expresses about the extent of this tragedy for the families and the dignity that they have shown throughout this trying and difficult process.

Inquiries will be made and a review will be carried out, as for all significant and important cases of this nature. When there has been a failure to present the case to a jury—not when there has been an acquittal—we will carry out a review. In this case, a prosecutor at the most senior level who has not been involved in the case in any way will be asked to carry out a review of the case.

As far as a public inquiry is concerned, I hope that what I have set out to Parliament today and the undertaking that I have given, should any other information that is relevant to what I have said today become available, will be sufficient for Parliament. Day in, day out, the prosecution service secures convictions in many difficult and trying cases and, when there are acquittals, knows that that is also part of the system.

As the member rightly said, Angus Sinclair now stands innocent of the murders. It is for the Crown to prove cases beyond reasonable doubt. That is a heavy onus that we readily accept, but it is a difficult challenge in a country whose evidential standards are higher than those of any other country in Europe, where corroboration is necessary and where the timetable for prosecution is so accelerated that many other countries in Europe simply do not recognise the timescales within which we operate.

On that basis, I hope that, as the public would expect, the Parliament accepts that, although there may have been a failure to get the case to the jury, the explanation that I have given today and the performance of the prosecution service more generally mean that a public inquiry will not be necessary.

Photo of Ian McKee Ian McKee Scottish National Party

I thank the Lord Advocate for her full and helpful explanation of what is going on. It has reinforced my confidence in the ability and integrity of the prosecution service.

In her statement, the Lord Advocate said that some of the evidence that was collected in the case of the operation trinity murders is not available now. Those murders took place at about the same time as the murders of Christine Eadie and Helen Scott, yet abundant evidence has been retained relating to the World's End murders. Does she agree that the lack of evidence relating to the operation trinity murders has inhibited the prosecution case in this circumstance? Can she make any observations regarding the collection and preservation of evidence for future cases?

The Lord Advocate:

It is difficult to be critical of what took place some 20 years ago. Some of the advances in forensic science and knowledge have been utterly unexpected developments that have taken us all by surprise. Had there been evidence such as we had in this case, the other four cases that were investigated as part of operation trinity would have had a much greater prospect of prosecution. That is not to say that such evidence will not be discovered. We know that, over the years, evidence has been lost. Some of it has deteriorated—it was buried under soil and contaminated—and, despite copious searches of Strathclyde Police's offices, some of the material cannot be located. It was only through the presence of mind of Lester Knibb, of Lothian and Borders Police, that the Crown was able to indict the case of Angus Sinclair. Lester Knibb is to be complimented on his presence of mind and foresight at the time. However, given that there have been some utterly unimaginable developments in this area, it would be unfortunate if we blamed officers for actions taken some years ago.

Photo of Sarah Boyack Sarah Boyack Labour

Does the Lord Advocate acknowledge that local people feel a deep sense of injustice about this case, which has been raised with me from time to time in the eight years that I have been an MSP, and that many members of the public were prepared to give evidence and statements to the police, who, as she has pointed out, worked for many years to bring the case to trial? Given that many local people feel very let down by the decision, what does she intend to do to restore confidence in the justice system?

The Lord Advocate:

The fact that witnesses were willing to come from all parts of the world to give evidence in this case and to assist in the investigation is a testament to the good citizens we have in this country. Over the years, more than 14,000 statements were obtained in the investigation, which illustrates the scale of the inquiry and the willingness of members of the public to assist in the administration of justice.

As far as restoring confidence in the system is concerned, convictions happen every day. Although we often see headlines about those convictions, there is little recognition of the work that has been done to secure them or, indeed, of the fact that they have been secured through prosecutors' efforts. The prosecutors in this country go about their business quietly, modestly and without the public annunciations of success that happen in many jurisdictions. Unlike attorneys in other countries, Scottish prosecutors do not come to the doors of the court to proclaim the success of their case. As a result, the many cases that are prosecuted successfully day in, day out do not register in the public psyche in the way that failures do. After all, it is the failures that make the headlines.

We should not lose confidence in the Scottish criminal justice system, or even suggest that public confidence has gone, simply because of one major and very tragic failure. There has been a frenzy around one case—or, indeed, around one of a number of high-profile cases—when, in fact, the picture day in, day out is very different.

I hope that the public acknowledge the work that is carried out by the public prosecutors. In fact, the Crown Office and Procurator Fiscal Service's efficiency was highlighted in evidence on the Howat report that was presented this week to the Justice Committee, and many witnesses and victims of crime write to thank procurators fiscal for their work. That work, which is unsavoury, traumatic and difficult, happens very much behind the scenes, and the Parliament and the public of Scotland should be grateful to the prosecutors for carrying it out.

The prosecution service is not the most lucrative area of law in which to pursue a career. Those who come into the public prosecution service do so in the knowledge that they will be in a public forum, that they will have to work with great tragedy and that, when they prosecute cases, they are more and more likely to be on television and to be photographed. They are good people who work extremely hard, and I hope that, if public confidence in the system has been dented as a result of this case, it will be restored.

Photo of Stuart McMillan Stuart McMillan Scottish National Party

Is the Lord Advocate confident that the Crown Office and Procurator Fiscal Service has the capacity to deal with major cases, bearing in mind that, as she pointed out earlier, it has to operate under severe time constraints?

The Lord Advocate:

Over the past five years, there has been a sizeable increase in the number of prosecutors and the cohort of Crown counsel has increased from 18 to 25, with eight ad hoc deputes in regular use. As a result of successes of police forces throughout Scotland, we are receiving more and more major project cases involving, for example, organised crime and murder, which we are tackling at a higher and more sophisticated level than we have ever been able to. As those new cases raise challenges, we have changed our working practices to ensure that teams are set up to deal with them and that Crown counsel become involved at the very earliest stage. Moreover, according to police forces in Scotland, 42 cold-case murders have become subject to the same kind of investigation as the case under discussion this afternoon.

As a result of our information technology, skills and training, we have never been better prepared for dealing with such cases. However, major pressures and challenges continue to exist for the prosecution service. The time constraints are a major issue and the disclosure measures, which came to us some 18 months ago through a case in the Privy Council, have added to that. I constantly consider the available resources with the aim of making better use of our people and IT to ensure that we provide an efficient, effective and resilient prosecution service. I am in discussions with the Cabinet Secretary for Finance and Sustainable Growth about the current financing of the department.

Photo of Margo MacDonald Margo MacDonald Independent

I thank the Lord Advocate for her detailed and clear statement. Lord Clarke in his opinion stated:

"There was no forensic evidence linking the accused with acts of violence said to have been the cause of death. There was no evidence that the accused had been the actor in the case of the rape or murder of either of the girls."

Given that, can the Lord Advocate explain why DNA from skin that was present in the centre of the knot in one of the ligatures that were the murder weapons that killed Christine Eadie and Helen Scott was not produced in evidence? Why was the case not prosecuted by the Solicitor General, given its complexity and the fact that it was prepared during his time as procurator fiscal in the Lothians, which meant that he had great knowledge of all the evidence?

The Lord Advocate:

I will answer the second question first. In the prosecution service, procurators fiscal investigate crime and prosecute in the sheriff and district court. With solemn cases, an important distinction exists. To ensure that decisions that are taken in our most serious cases are reinforced and that a collegiate approach is taken, Crown counsel take the decisions separately from procurators fiscal. It would have been inappropriate for the procurator fiscal who prepared the case and who was therefore close to the investigation to prosecute it.

Further, in light of the duties of the Solicitor General and the Lord Advocate, it would have been well-nigh impossible for the Solicitor General to prosecute the case. I would like to be in court every day of the week—it is what I joined the prosecution service to do some 24 years ago. I am a prosecutor, not a politician, and my career came through my love of advocacy, as did the Solicitor General's. Although we try to be in court for major and significant appeals as well as for short trials—the Solicitor General was in court this week—the volume of work of a law officer and the need to advise and supervise cases from throughout Scotland simply do not allow us to disappear from the Crown Office to prosecute cases for four, five or six weeks, which is the time that many such cases can take.

Photo of David Stewart David Stewart Labour

Does the Lord Advocate share my view that a case can be made for allowing juries sight of analogous previous convictions when defendants have a history of predatory sexual assaults? In the case of Angus Sinclair, what risk management procedures are in place in the event of his release to ensure that he never endangers the public again?

The Lord Advocate:

In Scotland, evidence of a previous conviction can be admitted in the course of a trial only very rarely and in exceptional circumstances. That is not the case in many other jurisdictions, where evidence of similar fact, including previous convictions, may be introduced as part of the Crown case to show a disposition, particularly if the conviction relates to a similar crime. That is not the situation in Scotland. It would make my life as a public prosecutor easier if I could lead such evidence, but that is not to say that that is the correct approach. The matter must be considered objectively by the Government, the Parliament and others more widely so that a fair balance is reached. It would not be appropriate for someone who could be perceived as partisan to decide on such principles. Of course I would say that I want prosecutions to be made easier and to have more evidence available. My view is that allowing such evidence would enable more prosecutions to take place but, in a democracy, a balance must be struck by the Parliament rather than by prosecutors.

Mr Stewart asked about the risk management of Angus Sinclair. As Mr Stewart knows, Angus Sinclair is serving a sentence of imprisonment. He is not due to be paroled until 2016. That will be a matter for the Parole Board for Scotland. He is serving a number of life sentences and the Parole Board for Scotland will decide if or when he will be released on to the streets. That is not a matter for ministers, nor is it a matter for the prosecutor.