Thomas Ross Young V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Eassie,Lord Menzies,Lord Bracadale |
| Neutral Citation | [2013] HCJAC 145 |
| Court | High Court of Justiciary |
| Date | 15 November 2013 |
| Published date | 15 November 2013 |
| Docket Number | XC896/07 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| [2013] HCJAC 145 | |
| Lord Eassie Lord Menzies Lord Bracadale | Appeal No: XC896/07 OPINION OF THE COURT delivered by LORD MENZIES in the Reference from the Scottish Criminal Cases Review Commission by THOMAS ROSS YOUNG Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Kerrigan, QC; Latif; Gilchrist; Drummond Miller LLP (for George Mathers & Co, Aberdeen)
Respondent: Ogg, QC, AD; Crown Agent
15 November 2013
Introduction
[1] The appellant was convicted at the High Court in Glasgow on 25 October 1977 of eight charges on an indictment, including a charge of murder, two charges of attempted murder, two charges of rape, a charge of assault and robbery, a charge of assault and a charge of theft. Each of these offences was committed between May and July 1977, in Glasgow or the surrounding area. All but one of the offences involved violence towards women, and many involved a significant sexual element. The most serious charge was in the following terms:
"(11) Between 10 and 27 June 1977, both dates inclusive, at the service road leading to Inchneuk Farm, Glenboig, or elsewhere in Scotland to the prosecutor unknown, you did assault Frances Barker, 289 Maryhill Road, Glasgow and did compress her throat, tie a ligature around her neck, push a pair of pants into her mouth and did murder her".
[2] On 2 November 1977 the appellant lodged a note of appeal against conviction, but on 3 January 1978 this appeal was abandoned.
[3] By letter dated 12 September 2005 Strathclyde Police wrote to the appellant's solicitors explaining that Strathclyde Police and Lothian and Borders Police were currently undertaking "Operation Trinity", a joint investigation into the murders of six women in 1977, including the murder of Frances Barker, and stating that the police, at the request of the procurator fiscal, wished to interview the appellant in the presence of his solicitor about the murder of Frances Barker. The police interviewed the appellant, in the presence of his solicitor, on 20 September 2005. As a result of this interview, the appellant formed the view that the police no longer believed that he murdered Frances Barker. If the safety of the murder conviction was open to question, this called into question the safety of the other convictions, because the appellant was convicted on the basis of the Moorov doctrine. Accordingly, the appellant made an application to the Scottish Criminal Cases Review Commission for review of his conviction.
[4] In the course of the Commission's consideration of the appellant's application, on 12 March 2007 Crown Office forwarded to the Commission a copy of the report Strathclyde Police had sent to Crown Office in respect of the Operation Trinity investigation, in which it is stated that the police had re-investigated the murders of six young women, including Frances Barker, between 11 June and 2 December 1977, all the women having gone missing following social nights out and whose bodies were subsequently discovered dumped in the open air a substantial distance from where they had been last seen alive. Reference was made in the report to what were described as "unique similarities" between the murders, and the report expressed the conclusion that the same person(s) were responsible for all murders within a short time frame. Appended to the Operation Trinity report were three further reports, namely a report by John Clark and Marjorie Black, forensic pathologists of the University of Glasgow dated 16 December 2004 ("the forensic pathology report"); a report by the Behavioural Analysis Unit at the Federal Bureau of Investigation, Quantico, Virginia, USA dated 23 January 2006 ("the BAU report"); and a report in which data relating to all homicides of female victims in Scotland between 1968 and 2004 have been collated, which is undated and unsigned ("the SCOTHOM report").
[5] The hypothesis which underlay the conclusion of the Operation Trinity investigation was that it may be possible to link crimes to form a series on the basis of perpetrator behavioural similarity, to enable a conclusion to be reached as to the likelihood of the crimes being perpetrated by the same person or persons. Although in the course of these proceedings this practice was referred to by several names, we propose to refer to it throughout as "Case Linkage Analysis" ("CLA").
[6] Strathclyde Police apparently took the view that CLA might be of assistance to them in the conduct of their Operation Trinity investigations. The Commission observes in its reference to this court (at paragraphs 117-119) in dealing with the BAU Report:
"117. On what is page 1 of the Commission's copy of the report (the report is unpaginated), it is stated that Strathclyde Police requested an analysis and an opinion from the FBI on whether 'linkage' between six homicides could be established. The purpose of the report is set out more fully at page 3, where it is stated:
'The purpose of this analysis was to behaviourally assess the overall condition of each crime scene and the dynamics of the offender(s) interaction with that scene (both contact and deposition sites) and the victim in order to determine if a linkage could be made between any of the six homicides'.
118. Strathclyde Police provided the FBI with aerial photographs of the crime scene and contact locations; detailed maps of the crime scenes and deposition sites; overall maps identifying the contact and deposition sites for each victim and the relationship of each site to the other sites; photographs of the last seen locations; photographs of the crime scenes, including the bodies; autopsy photographs; detailed photographs of the bindings, the ligatures and the gags used on the victims; photographs of the victims; a map highlighting the dimensions of Scotland in relation to the US and other countries in the UK; a map demonstrating the geographical relationship between Glasgow and Edinburgh; a map highlighting central Scotland and the contact and deposition sites; virtual representations of the bindings, the gags and the ligatures from the front and from the rear; and a photographic summary demonstrating the similarities in the crime scenes, the ligatures used to gag the victims, the ligatures used to bind their wrists and ankles, and the body positions.
119. At pages 10 and 11 of the report, under the heading 'Crime Analysis', it is stated:
'Violent crimes scenes always tell a story - a story written by the offender, the victim and the unique circumstances of their interaction. It is this interaction that makes crime scenes dynamic events that vary in complexity. One of the fundamental tenants [sic] of crime scene analysis is to identify the multiple forensic and behavioural variables presented at the scene in order to interpret how and why these six women became the victim of homicide....While conducting an analysis of the behaviour manifested at violent crime scenes, it is essential to avoid becoming too focused on any one aspect and ascribing singular importance to it. It is important to remember that no attempt was made to reconstruct the exact sequence of events. Instead, it is the totality of the circumstances that is most important in assessing not only what happened but why and how it happened".
[7] The Commission considered the various reports which were placed before it, and the appellant's statement to the Commission. It addressed the test for additional evidence, and concluded that the terms of the Operation Trinity report were likely to have had a material bearing on, or a material part to play in, the jury's determination of the critical question which was put to them by the trial judge, namely "the question which you have to decide is whether you are satisfied beyond reasonable doubt that the accused is the person who murdered her" [i.e. Frances Barker]. The Commission concluded that there may have been a miscarriage of justice and that it was in the interests of justice that the case should be referred to this court. Accordingly the Commission made a reference to this court in November 2007.
Procedure
[8] The appellant lodged grounds of appeal on 6 June 2008. Despite the best efforts of the court to make progress, there then followed a very protracted procedural history, involving several changes of senior counsel and prolonged investigation. It is not necessary for us to explain here the reasons for this delay. In February 2011 the court appointed the appeal to a full hearing of 8 days duration to be held no earlier than September 2011 and appointed both parties to lodge written notes of argument before that hearing. In November 2011 amended grounds of appeal were lodged on behalf of the appellant.
[9] The ground of appeal lodged in June 2008 was in the following terms:
"That there has been a miscarriage of justice in this case in respect that new evidence not heard at the trial of the appellant is now available which would have had a material bearing on the jury's determination on charge 11 in the indictment. The new evidence is to the effect that the crime in charge 11 on the indictment facing the appellant may have been committed not by the appellant, but by X and/or Y".
[10] The evidence relied upon in support of this ground of appeal in the original grounds comprised (1) the forensic pathology report, (2) the BAU report and (3) the SCOTHOM report, together with two other evidential matters. The amended grounds of appeal deleted these two other evidential matters and substituted four other evidential matters, the last of which was in the following terms:
"(vii) The evidence recovered and findings made by the Lothian and Borders and Strathclyde Police in the investigation Operation Trinity, as contained in the Operation Trinity report, that
(a) could reasonably infer that the same person was responsible for the six murders under review; and
(b) could reasonably infer a...
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