Part of the debate – in the Scottish Parliament at 2:54 pm on 13 September 2007.
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
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
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
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
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
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
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
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
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
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
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
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
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.
