Her Majesty's Advocate Against Angus Robertson Sinclair
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lady Dorrian,Lord Justice Clerk |
| Judgment Date | 06 September 2013 |
| Neutral Citation | [2014] HCJAC 130 |
| Date | 06 September 2013 |
| Published date | 17 November 2014 |
| Docket Number | XM2/13 |
| Court | High Court of Justiciary |
| APPEAL COURT, HIGH COURT OF JUSTICIARY
| |
|
| [2014] HCJAC 130 |
| Lord Justice Clerk Lady Paton Lord Dorrian
| Appeal No: XM2/13
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in the application under the Double Jeopardy (Scotland) Act 2011
by
HER MAJESTY’S ADVOCATE
Applicant;
against
ANGUS ROBERTSON SINCLAIR
Respondent:
_______
|
Applicant: Lord Advocate (Mulholland QC), Lawrie; the Crown Agent
Respondent: M Stewart QC, BT Smith; John MacRitchie & Co, SSC, Peterhead
6 September 2013
The Trial
[1] On 10 September 2007, at the High Court of Justiciary in Edinburgh, the respondent was acquitted by the trial judge of charges concerning the abduction, assault, rape and murder of Helen Scott and Christine Eadie on 15 and 16 October 1977. The acquittal followed a “no case to answer” submission by the respondent in terms of section 97 of the Criminal Procedure (Scotland) Act 1995.
[2] The case was a high profile one which, at the time of the original offences and during the course of the trial, attracted considerable media attention. It is known as the “World’s End” murders. According to the narrative in the application, the two women had last been seen alive sometime after 11.00pm on 15 October 1977 outside the World’s End public house on the High Street, Edinburgh and walking down St Mary’s Street in the company of two men. At about 2.30pm on the following day, Miss Eadie’s body was found almost 15 miles away at Gosford Bay, Aberlady. A few hours later, at about 6.00pm, the body of Miss Scott was found in a field near Haddington; a distance of about 5 miles from Gosford Bay. Both women had been gagged with items of clothing, had their hands tied with tights or a belt, and been subjected to blunt force trauma and non-consensual sexual intercourse. The bodies were found either naked or partly naked. Both women had been strangled.
[3] The trial judge acquitted the respondent on the basis that the DNA evidence, which demonstrated that the appellant and his brother-in-law, namely Gordon Hamilton, had had sexual relations with the women, was “neutral as to whether or not (they were) involved in any acting involving force or violence against the girls, or present when those actings took place, on the night in question”. He stated, in particular:
“As far as the murders themselves are concerned there was no forensic evidence linking the accused to the items apparently used to kill the girls, for example ligatures.”
The Double Jeopardy Application
[4] On 20 December 2012, this application under section 4 of the Double Jeopardy (Scotland) Act 2011 was lodged, craving the court to set aside the acquittal and grant authority to bring a new prosecution. It is a requirement of such an application that there is new evidence that the person committed the original offence. The court is empowered to set aside an acquittal if, in summary: (a) the case against the person is strengthened substantially by the new evidence; (b) the new evidence was not available, and could not with the exercise of reasonable diligence, have been made available at the trial; (c) it is highly likely that, with the new evidence and the evidence which was led at the trial, a reasonable jury would have convicted; and (d) it is in the interests of justice to do so. The contention of the applicant is that, whereas the original evidence had proved that the respondent and Mr Hamilton had had sexual intercourse with the girls, new forensic evidence was now available in relation to the ligatures, in the form of DNA findings, which is capable of supporting the inference that the respondent and Mr Hamilton had themselves tied the ligatures and were thus involved in the murders.
[5] The case called initially at a procedural hearing on 5 February 2013, presided over by the Lord Justice Clerk and two other judges. At that stage, the respondent was appointed to lodge answers by 30 April 2013 setting out the scope of his opposition to the application. A further procedural diet was set for 14 May to determine further procedure and to fix a date for a final hearing. On 14 May the court, again presided over by the Lord Justice Clerk and two other judges, set a timetable permitting the respondent until 15 July 2013 to adjust the answers, which he had previously lodged, and appointing 1 August as a further procedural hearing, by which time parties ought to have lodged lists of productions and witnesses and identified any expert evidence capable of agreement. The final hearing was fixed for a period of 8 days, commencing 1 October 2013, at which both evidence and submissions are to be heard.
[6] When the case called on 1 August 2013, it appeared that the parties had done very little in any formal sense by way of lodging the lists requested. The court declined to allow further time in which to do so, but indicated that it would hear parties in respect of any applications to receive late material, should such applications be made. It was at this hearing, which was again presided over by the Lord Justice Clerk and two other judges, that the respondent’s counsel raised, for the first time and without any prior or written notice, that he intended to move the Lord Justice Clerk to decline jurisdiction (“recuse himself”). Counsel stated that he was in a position to move this application orally at the bar. The court requested that any such application ought to be made in writing. The court appointed a further procedural hearing for 6 September 2013, at which it was anticipated that any applications (including any to decline jurisdiction) might be heard.
The Declinature Application
[7] On 23 August 2013 the written declinature application was eventually lodged. This states, as follows:
“The respondent submits that should the Lord Justice Clerk participate in the determination of the application, the court will lack the objective appearance of impartiality necessary for a fair hearing at common law and in terms of Article 6 ECHR. His continued participation will give rise to apparent bias. The respondent makes no allegation of actual bias against the Lord Justice Clerk.
In 2001 the respondent was convicted of a rape and murder committed in 1978. (The Lord Justice Clerk) was the trial judge. Following his conviction, the respondent was sentenced to life imprisonment.”
[8] The trial over which the Lord Justice Clerk had presided had ended on 13 June 2001, when the respondent had been convicted of the rape and murder of a 17 year old girl in Springburn, Glasgow on 19 November 1978. The case had been reopened in November 1997. A sample of pubic hair, which had been taken from the deceased, was examined and found to contain sperm with DNA matching that of the respondent. This evidence, if accepted, had been, as the Lord Justice Clerk described it in his Parole Board report at the time, “compelling evidence that the respondent had been the perpetrator”.
[9] It is said that this trial bore striking similarities to the present one involving, as it did, “stranger rape and murder”. Both cases dated from the 1970s and the victims were of a similar age. Both involved strangulation using clothing as ligatures and in both the core prosecution evidence related to DNA analysis. In his report to the Parole Board, the Lord Justice Clerk had described the 2001 offence as “one of appalling cruelty and depravity”. He went on to describe the disclosure of the respondent’s previous convictions for culpable homicide and various sexual offences, and the fact that he was already serving a life sentence, as “somewhat chilling revelations”. He stated that, in these circumstances, the appellant “poses an extreme danger to young women and is likely to continue to do so. Any suggestion of his release in the future would have to be scrutinized with great care”.
[10] It is said that, whilst those remarks were made in the course of the Lord Justice Clerk’s judicial function, the fair-minded and informed observer would conclude that, nonetheless, they revealed that the Lord Justice Clerk had formed an opinion about the nature of the crime, the strength of DNA evidence, the character of the respondent and where the public interest lay in respect of his incarceration. The role of the judges in the present application would be as decision-makers on matters of fact, as well as law. The judges would have to decide whether the DNA evidence was new and whether it substantially strengthened the case against the respondent. The court would require to address whether it was in the interests of justice to grant the application and this necessarily involved an assessment of the interests of the respondent and those of the public. The application concludes that:
“The fair-minded observer would conclude that there is a real risk that the Lord Justice Clerk’s decision on the application, particularly in relation to the interests of justice, may be influenced by his knowledge of the detail of the earlier case and his stated opinion about the relationship between the interests of the respondent and those of the public.”
Submissions
Respondent
[11] When the case called on the appointed diet of 6 September 2013, neither of the respondent’s counsel, who had been present at the time when the motion for declinature had originally been moved at the Bar, was available to present the argument. It was therefore moved by alternative counsel. Much of the submission was of course already in written form. Reference was made, in particular, to the test, which was set out in Porter v Magill [2002] 2 AC 357 (Lord Hope at para 103), of whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal would be biased. This test was approved for use in the Scottish civil context in Helow v Secretary of State for the Home Department 2009 SC (HL) 1. Lord Hope stressed that the...
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