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On a serious note

Brian Taylor | 17:22 UK time, Thursday, 13 September 2007

I’ve heard Holyrood raucous. I’ve witnessed it dull. Today I watched from the media gallery as the chamber’s mood was sombre, serious and reflective. With good reason.

MSPs listened in utter silence as the Lord Advocate Elish Angiolini set out in great and gruesome detail the background to the collapse of the World’s End double murder trial.

In sum, she supported Advocate Depute Alan MacKay

She explained the inevitably circumstantial nature of the evidence. She said that any evidence withheld was excluded on the basis of a “reasoned decision” by the advocate depute, based on the relative weight of that evidence and the overall conduct of the case.

She argued finally that independent Crown counsel must be free to pursue cases without fear of public vilification if those cases fail to result in conviction.

She added: “Armchair commentators, however eminent, are just that.”

It was a potent defence of the Crown, well delivered and commendably thorough. I offer no comment on the case either way. Not my role - and I wasn’t in court.

But I was intrigued by Elish Angiolini’s broader analysis, in response to questions from opposition MSPs, notably Labour’s Margaret Curran.

The Lord Advocate was asked about whether there might be a right of appeal for the Crown in such cases.

She said she had supported such a concept in advice to Scotland’s justice ministry - while stressing that action on this would be a matter for parliament, not her as the head of the prosecution service.

She also stressed this advice had been delivered “some weeks ago” - that is, it was not explicitly linked to the World’s End trial.

Mind you, she did indicate that - hypothetically - she might well have invoked such a right to appeal in the collapsed trial, had it existed.

Earlier, the first minister had suggested in response to Annabel Goldie that an enhanced Crown right of appeal might be an avenue to consider, perhaps instead of abolishing the “double jeopardy” rule which, in Scotland, prevents a retrial where there has been an acquittal.

It would seem, in short, that there is a Criminal Justice Bill in the making - to add to the eleven in last week’s programme for government.

PS: Labour are a little miffed - I stress, only a little in the wider scheme of things - that the answer from Alex Salmond on double jeopardy was delivered to Annabel Goldie.

Labour sources say the first minister had blanked Cathy Jamieson on precisely the same topic when she posed the question minutes before the Tory leader got to her feet.

Comments

  • 1.
  • At 09:27 PM on 13 Sep 2007,
  • Graeme wrote:

Another interesting report Brian. This may be an issue where our MSPs have to earn their salaries and display some Solomon like wisdom, here's hoping they manage it.

On the PS, mebbe AS was trying some form of aversion therapy to help the Labour lot get used to opposition.

  • 2.
  • At 07:57 AM on 14 Sep 2007,
  • Peter, Fife wrote:

There may well be a bill in the making, identified earlier but clearly spurred on with this latest fiasco; I cannot accept “…that any evidence withheld was excluded on the basis of a “reasoned decision” by the advocate depute, based on the relative weight of that evidence and the overall conduct of the case…”, unless I am appraised of such evidence.

This seems like a solicitor’s version of doctors burying their mistakes and more importantly the evidence that proves such mistakes exist.

To merely disregard all other ideas and thoughts as “…“Armchair commentators, however eminent, are just that.”…” displays a level of arrogance that provides cause and justification for the currently held public opinion of suspicion and distrust of the Scottish legal system and its members.

Perhaps the families of the deceased may pursue a civil action against Sinclair as Amanda Duffy's parents did (successfully) against Francis Auld after the charge of murder against him was found 'not proven'.

I support the retention of the double jeopardy rule but also support a change in the law that allows the prosecution the right to appeal an acquittal. This is only fair and balanced in a system that allows the accused to appeal following a conviction. Though I'm sure it hasn't happened in HMA v. Sinclair, if at some time in any future case the Advocate Depute's performance fails the Crown (and us, the public), then just as the accused has the right to appeal if his defence advocate's performance is incompetent, so should Her Majesty if her's is incompetent.

If an accused can appeal an unsafe conviction, the Crown should be allowed to appeal against an unsafe aquittal.

  • 4.
  • At 09:19 AM on 14 Sep 2007,
  • Alasdair wrote:

It is my understanding that the Scotland Act expressly forbids the Scottish Government and Parliament from doing anything that contravenes the ECHR. Given that, and the fact the ECHR contains a protocol that protects against people already acquitted being retried for the same offence, I am not sure how the Scottish Government would be able to remove the 'double jeopardy' protection.

  • 5.
  • At 09:40 AM on 14 Sep 2007,
  • Stewart wrote:

I completly support no appeal for the crown and the retention of double jepordy.

If your innocent until proven guilty, then once you are proven innocent , you should never have to prove it again. On the same note I still support Not Proven as if you are found not Proven you are guilty, we just dont have enough to get you this time.


Problem is that double jepordy or crown appeals could be politically motivated by such great independent thinkers such as the Sun , News of the world etc etc

  • 6.
  • At 10:08 AM on 14 Sep 2007,
  • Clare wrote:

The double jeopardy rule is exactly to avoid allowing the police and prosecution service to be sloppy in their investigations and to discourage them from bringing tenuous cases to court.

I have no idea whether this man was guilty or innocent of these crimes, or whether the case was badly prepared in the ciurcumstances, but unless we wish to live in a police state, we have to insist that our prosecutors prove beyond doubt that a person is guilty. And if they can't, they have to leave him alone.

Yes, mistakes might sometimes be made, and that is regrettable, but it is in all of our interests to hold the public agencies responsible for our liberties to the very highest of standards. Removing the double jeopardy rule would simply give them an excuse not to investigate properly and, if the notion took them, to harrass people against whom a case could not be proved.

While that won't give much comfort to the victims of unresolved crimes, public authorities must give attention to what will make our country a safer, freer place to live.

It's easy to say "there's no smoke without fire" but would you be saying that if the smoke was billowing around you?

  • 7.
  • At 11:28 AM on 14 Sep 2007,
  • Peter, Fife wrote:

Did Irving Berlin display a greater foresight than was perceived in 1911 when he penned "Alexander's Ragtime Band", seems an ideal call to arms with the exception of, “…Up to the man, Who's the leader of the band…”; but Hey Ho the PC brigade had not darkened our doorsteps in those early years of the twentieth century.

Will Wendy adopt this as her theme tune or is the rather obvious alternative interpretation cause this to be a title too far?

  • 8.
  • At 11:41 AM on 14 Sep 2007,
  • PMK wrote:

Labour will have to change and change significantly if they are to regain people's trust if their performance in the chamber yesterday was anything to go by! The way in which member after member gave the impression that all that was needed was the end of double jeopardy and we could throw a suspect (in a closed case) in a cell for longer was disgusting. They obviously have no grasp of how the law works, or have carefully "unlearnt" everything they were once taught.

It will take a good deal more than the word "radcal" and attempts to "Wendy" opponents to turn that shower round!

  • 9.
  • At 01:19 PM on 14 Sep 2007,
  • Medusa wrote:

#2 - are you qualified to appraise that evidence? I sat through the Lord Advocate's recital of the evidence yesterday, and would have to say that I am happy to leave these decisions to these trained to do so.

As for AS snubbing Cathy Jamieson, doesn't surprise me. Tales are rampant in the Executive of his rudeness and sexism.

  • 10.
  • At 02:37 PM on 14 Sep 2007,
  • neil wrote:

Am I correct in my understanding of the Lord Advocate's position here? She defends the Advocate Depute's decision not to lead certain evidence, not because that evidence was inadmissable, but because of the relative weight of that evidence and the overall conduct of the case. Is she saying that this evidence would not have taken the Crown case beyond the sufficiency of evidence required by law?
Of course, if the Lord Advocate's view is that Lord Clarke was erroneous in law in his decision to uphold the no case to answer submission she could refer the case to the Appeal Court, which would not be able to reverse the acquittal, but at least would clarify whether the Crown had presented enough evidence at trial.

  • 11.
  • At 08:02 PM on 14 Sep 2007,
  • Leuchars wrote:

Very interested in your P.S Brian where AS appeared to ignore Labour and reply to the Tories.
For years Labour deliberately ignored the SNP and treated the Tories as the official opposition. This despite the fact that the SNP were the second party in terms of votes cast.
It was incredibly annoying to hear them in the run up to elections talking about the threat from the Tories when all the while they knew where the real threat lay. It was a tactic designed to starve the SNP of publicity and indeed legitimacy by quite simply acting as if they didn't exist.
Of course events of the last couple of years have changed all that but I personally would be delighted to see Salmond and his team treat the Tories as the opposition for a while.
It would enrage Labour and give them a taste of their own medicine!

  • 12.
  • At 09:14 AM on 15 Sep 2007,
  • Duncan wrote:

What is needed here is a change in the law that excludes any acquittal on the grounds of 'technicality' - time after time we see criminals walk free because a bit of paper has not been filled in properly or evidence is ruled as 'inadmissable' because it has not been presented properly - the people in this country want 'truth and justice' not 'clever lawyers' making a fortune out of perverting same.

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