Only a numpty would fail to discern the semantic difference. Contrast the phrase: “we are investigating the possibility of a retrial” and “a retrial will definitely happen”. The first formulation certainly suggests serious-minded application – a searching search rather than a dawdling, half-hearted intention to review an acquittal – but for the Scotsman to headline yesterday’s developments in this morning’s paper as “World’s End murders accused set for retrial” is appallingly irresponsible.
Irresponsible, because Angus Sinclair’s retrial under the new Double Jeopardy (Scotland) Act 2011 was always going to be a very long shot, for a couple of reasons. Firstly, consider the legislation itself. What do the Crown need to do to have an acquittal set aside? They have to persuade the High Court that one of three main exceptions to the general rule against double jeopardy obtain. Firstly that the person was acquitted by a judicial process “tainted” by illicit jiggerypokery. Bribing or threatening judge or jurors or witnesses: that sort of thing; secondly that the acquitted person subsequently owned up to their guilt; and thirdly, that new evidence emerges after the acquittal.
This last ground is much-qualified in the detail. It is not sufficient that any new proofs are turned up. Before any re-prosecution will be permitted, the Crown must convince the High Court to set aside the acquittal and order a retrial. Under the Act, the Court may only so order, if they are convicted that that (a) the new evidence leaves the case against the person ‘strengthened substantially’; (b) that this new evidence was not ‘available, and could not with the exercise of reasonable diligence have been made available, at the trial in respect of the original offence’; (c) that on the new evidence and that lead at the first trial, ‘it is highly likely that a reasonable jury properly instructed’ would have convicted the accused; and (d) finally that it is ‘in the interests of justice’ for the court to set aside the acquittal.
Absent any interference with justice, and assuming Sinclair has made no post-acquittal admissions of guilt, it is these ‘new evidence’ provisions the Crown will have to rely on, if Sinclair is to be re-prosecuted. And they don’t strike me as immediately promising for a couple of reasons. Firstly, we have to remember why the World’s End trial failed in 2007. The presiding judge decided there was “no case to answer”, which is to say that in law, he believed the evidence presented by prosecutors was insufficiently corroborated for a conviction to be sustained. Against this decision, the Crown enjoyed no right of appeal and that was the end of it. Critically, even if the Crown did not present all of the evidence it had in its possession during the 2007 trial, and neglected to adduce important aspects which could have saved its case, that clearly isn’t “new evidence” under the Double Jeopardy Act to justify setting aside the acquittal.
Secondly, we have to remember the factual circumstances of Sinclair’s 2007 prosecution. Former senior police officer Tom Wood is quoted in the Scotsman article, suggesting that “I think it’s unlikely the Crown would have done what it’s done if it did not have new and compelling evidence. It would guess it’s to do with advancements in forensic science”. Respectfully, this doesn’t seem likely. Helen Scott and Christine Eadie were killed in the 1970s – Sinclair was not prosecuted for their murders until the 2000s. On my understanding, that much-delayed prosecution was itself based on new DNA evidence emerging in the intervening years. While not impossible that radical, revelatory innovations in forensic science have occurred in the last five years, I’ve not heard of any.
Indeed, one might think that the Crown would decide to order a new investigation because it had what it regarded as old and compelling evidence of potential guilt, rather than because they already had new evidence in hand. We aren't talking about the technically savvy review of an old case and old forensic methodologies, but the re-investigation of a relatively contemporary case, relating to now old facts. Even without considering the hurdle of new evidence "significantly strengthening" the case against the accused, if Sinclair is to have his acquittal set aside, the High Court will have to be convinced not only that the officers of Lothian and Borders police have uncovered something new and substantial implicating Sinclair, but that this was new evidence which "could not with the exercise of reasonable diligence have been made available, at the trial in respect of the original offence". While this seems obviously to apply to information which becomes accessible because of radical technological innovation, absent that, it would be surprising if the presumably diligent police investigation leading up to the 2007 court case had excusably missed any evidence which would satisfy this standard.
I don’t want to ape the Scotsman’s mistake of misplaced definitiveness, but when you consider the statutory framework, and the circumstances of the World's End trial, the chances of Sinclair's successful re-indictment still seems remote. Empowered by the new Double Jeopardy Act, it isn't surprising that the Crown felt obliged to undertake another review of the case, and ordered police to make further investigations. Quite proper too. But don't let's get ahead of ourselves. False hope for the families of these women, so cruelly killed, is no hope at all.