APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2014] HCJAC 131
Lord Justice Clerk Lady Dorrian Lord Bracadale	Appeal No: XM2/13   OPINION OF THE COURT   delivered by LADY DORRIAN   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: Duguid QC, McCall; John MacRitchie & Co, SSC, Peterhead

 

27 March 2014

Background
[1]        In 2007 the respondent stood trial at the High Court of Justiciary in Edinburgh on an indictment containing two charges alleging the abduction, assault, rape, murder and robbery of Helen Anne Scott and Christine Eadie on 16 and 17 October 1977.  It was alleged that the offences were committed by the respondent whilst acting in concert with his brother in law, Gordon Hamilton, who had died on 7 December 1996.  On 10 September 2007 the respondent was acquitted of both charges on a submission, in terms of section 97(2) of the Criminal Procedure (Scotland) Act 1995, that there was no case to answer.

[2]        The present proceedings concern an application by the Crown in terms of section 4 of the Double Jeopardy Act (Scotland) 2011 in which the Crown ask that the acquittal be set aside and seek authority to bring a fresh prosecution.

[3]        Section 4 of the Act provides that:

(1)        A person who, on indictment in the High Court (the ‘original indictment’), has been acquitted of an offence (the ‘original offence’) may, if the conditions mentioned in subsection (3) are satisfied, be charged with, and prosecuted anew for—

(a)        the original offence,

(b)        an offence mentioned in subsection (2) (a ‘relevant offence’).

The conditions in subsection (3) are that:

(a)        there is new evidence that the person committed the original offence or a relevant offence, and

(b)        the High Court, on the application of the Lord Advocate, has—

(i)         set aside the acquittal, and

(ii)        granted authority to bring a new prosecution in the High Court.”

 

Subsection (7) provides that:

“The court may set aside the acquittal only if satisfied that—

(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 in respect of the original offence,

(c)        on the new evidence and the evidence which was led at that trial, it is highly likely that a reasonable jury properly instructed would have convicted the person of—

(i)         the original offence, or

(ii)        a relevant offence, and

(d)        it is in the interests of justice to do so.”

 

[4]        The Crown and defence entered into two lengthy joint minutes in which inter alia certain matters were agreed as to the nature and circumstances of the offences, the evidence led at the trial, and the evidence which was available at the trial but which the Crown chose not to lead.  The Crown supplemented this by leading evidence (a) from certain witnesses who had given evidence at the trial; and (b) from witnesses who spoke to the evidence which the Crown relied upon as new evidence.  The defence led evidence from two witnesses.  The witnesses who gave evidence were: Det. Supt. Gary Flanagan; Acting DS Andrew Ritchie; DC Diane Smith; Lester Knibb; Jonathan Whitaker; Andrew McDonald; Geraldine Davidson; Prof. David Balding; Susan Ure; and Prof. Peter De Knijff.

[5]        The two girls Helen Scott and Christine Eadie were last seen by Police Officers on foot patrol outside the World’s End Public House, High Street, Edinburgh, between 2315 and 2320 hours on 15 October 1977, walking off down St Mary’s Street, Edinburgh, with two men.  They had arrived at the World’s End at about 9.30pm that night.

[6]        On 16 October 1977 at around 1425 hours, Eadie’s body was found at Gosford Bay, Aberlady about 14.5 miles from the World’s End Public House.  Her body was naked, lying face upwards and she was gagged with a pair of underpants.  The gag was held in place by a brassiere (X108) used as a ligature across her mouth and tied behind her head.  Part of a pair of tights (X107) formed a further ligature around her neck.  Her hands were tied behind her back, also by part of a pair of tights (X106).  She had been physically assaulted.  Apart from the strangulation, she had injuries to the face and upper chest consistent with blunt force injury.  The cause of death was certified as asphyxia, due to strangulation with a ligature and by gagging of the mouth.

[7]        On the same date, but at about 1800 hrs, Scott’s body was found in a field near Haddington, at a distance of about 4.8 miles from Gosford Bay.  She was lying on her front, naked from the waist down but wearing a black raincoat (X140), black jersey, white shirt and a brassiere.  A pair of tights along with a denim belt belonging to Eadie had been used to form a ligature (X110) round her neck.  Her hands were tied behind her back by the belt from her raincoat (X141).  A pair of underpants (X109) was found on the ground beside her head.  She too had been physically assaulted.  Apart from the strangulation, she had a black eye and other facial bruising, all consistent with blunt force trauma. She had fingertip bruises round her neck consistent with the application of manual pressure.  The cause of death was certified as asphyxia consequential upon strangulation.

[8]        It was the Crown’s position at trial that the offences were committed by the respondent and Hamilton acting in concert.  The two girls were last seen alive in the company of two men.  There was forensic evidence consistent with the respondent and Hamilton having had sexual intercourse with both girls.  The Crown argued that the nature and circumstances of the offences suggested that the two girls had been overpowered, bound and gagged while still alive and, at some point, transported to remote locations, which indicated that two men were involved.  Given the underpants found beside Scott’s head and the use of underpants to gag Eadie, the Crown's position was that Scott had also been gagged using underpants.  Further, the absence of seminal drainage stains on the gussets of both pairs of underpants indicated that neither girl had worn her pants following sexual intercourse.  A further link was that the belt used as a ligature on Scott’s neck belonged to Eadie.  The Crown argued that the use of the underwear in gagging and binding and the absence of a drainage stain permitted the inference that the binding and gagging was performed in preparation for non-consensual sexual intercourse.  Since there was evidence consistent with both Sinclair and Hamilton having had sexual intercourse with both girls, the inference could be drawn that both were involved in the binding and gagging.  The Crown argued that the circumstances of the murders suggested that they were sexually motivated, which allowed the inference that the persons who had had sexual intercourse with them also murdered them.  Forensic evidence was led linking fibres found on Scott’s coat to a Toyota Hiace caravanette, such as had been owned by the respondent in 1977, and used by him and Hamilton for the purpose of fishing trips together.

 

Forensic evidence led at the trial
Eadie
SWABS
[9]        Forensic analysis of 3 vaginal swabs taken from Eadie and marked “vaginal 1”, “vaginal 2” and “vaginal 3” (X188), revealed that semen extracted therefrom had DNA types matching types present in the profiles of Hamilton and the respondent, consistent with both men having had sexual intercourse with her.

[10]      Analysis of the seminal fraction from vaginal swab 1 (X176) produced a DNA profile indicating an unknown male (identified as Hamilton) as a major contributor with a weak indication of DNA consisting of 2 DNA types from another individual.  The respondent could not be excluded as the minor contributor.  In assessing the significance of this result, two explanations were considered: (i) that the respondent and an unknown individual were the sources of the DNA; and (ii) that two unknown individuals unrelated to the respondent were the sources.  It was originally estimated to be approximately 45 times more likely that the first alternative were true, but during the course of the trial, since 1 of the types was also present in Eadie’s profile, the statistical probability was reconsidered, with the result that the evidence became that the single type matching the respondent is found in 1 in 17 of the population.

[11]      Analysis of the seminal fraction from vaginal swab 2 (X177) detected a DNA profile indicating an unknown male (identified again as Hamilton) as a major contributor, with a weak indication of DNA comprising 3 DNA types from another individual.  Both Eadie and the respondent shared those 3 types and therefore neither could be excluded as being the source of these minor components.

[12]      Further analysis of one of these swabs, carried out in 2006, showed 20 DNA types matching types in Hamilton’s profile.  Such a number represents a full DNA profile and the probability of finding such a match from an individual other than Hamilton was 1 in 1 billion.  In addition a partial DNA profile was found, consisting of 8 DNA types all present in the DNA profile of the respondent.  However, 4 of these types were also found in the DNA profile of Eadie, so, during the trial, the match probability was recalculated on the basis of the 4 remaining types matching the respondent’s profile.  The probability of those 4 types having originated from another male unrelated to him was estimated as being 1 in 560.

[13]      Analysis of an anal swab taken from Eadie (X187) revealed that the semen extracted therefrom had DNA types matching types in the profiles of Hamilton and the respondent.  That relating to Hamilton was a full profile.  A further, partial, profile consisting of 4 DNA types was identified from the semen on the anal swab.  All 4 matched types found in the profile of the respondent.  However, two of those types were also present in the profile of Eadie, so a match probability was calculated restricted to the remaining 2 types found in the respondent’s profile.  The probability of findings these two DNA types if the trace amount originated from Eadie and another male unrelated to the respondent was estimated to be in the order of 1 in 40.

[14]      This evidence was consistent with both Hamilton and the respondent having had sexual contact with Eadie.

 

Scott
SWABS
[15]      Four vaginal swabs (X191) were taken from Scott, and seminal material was found on all 4.  The semen extracted from the swab marked “deep vaginal 2” (X173) had a full DNA profile matching that of Hamilton, with a match probability of 1 in 1 billion.  Traces of other DNA were detected in the sample but were insufficient for further analysis.

[16]      The DNA extracted from the seminal fraction of a vaginal swab marked “Scott superficial” (X174) revealed a full DNA from an unknown male (identified as Hamilton), with a weak indication of DNA consisting of 3 DNA types from another individual.  The respondent could not be excluded as the minor contributor of these 3 types.  In assessing the significance of this DNA result, two explanations were considered: (i) that the respondent and an unknown individual were the sources of those 3 types; and (ii) that two unknown individuals unrelated to the respondent were the sources.  It was originally estimated to be approximately 106 times more likely that the first alternative were true.  However, since 2 of the 3 DNA types were also found in the DNA profiles of other individuals connected to the case, including Eadie, that statistic was revised, with the conclusion that the single remaining DNA type found in the respondent’s profile could be found with a frequency of 1 in 17 of the population.

[17]      Incomplete profiles from the seminal fractions of swabs marked “deep vagina 1”, “deep vagina 2” and “post mortem” (X173 and 175) were all consistent with having come from Hamilton.

[18]      The results of this analysis were consistent with Hamilton having had sexual intercourse with Scott.  When assessed in combination with evidence relating to the DNA found in a semen stain on Scott’s coat described below, the results of the analysis were also consistent with the respondent having had sex with Scott.

 

COAT
[19]      Analysis of white stains on the inner lining of Scott’s coat revealed DNA profiles matching the respondent and Hamilton.  17 DNA types matched the profile of the respondent with a match probability of 1 in a billion.  Traces of DNA matching types present in the profiles of both Scott and Hamilton were also found.  Analysis of an area of semen stained fabric removed from the coat – area 20G – revealed a DNA profile matching that of the respondent, with a match probability of 1 in a billion.

[20]      In combination with the analysis of Scott’s vaginal swabs, the results of the analysis on the coat samples were consistent with both Hamilton and the respondent having sexual intercourse with Scott and with the respondent’s wet semen being deposited onto the area 20G as a result of drainage of semen following sexual intercourse.

 

Other evidence led at trial
[21]      When the respondent married in 1970 he was living at an address a five minute walk from the World’s End Pub.  He took his wife on trips to East Lothian.  In 1977 he purchased a Toyota Hiace converted caravanette in which he and Hamilton often went on fishing trips.  The vehicle had been converted by a company in Devon who were able to identify from another vehicle samples of upholstery identical to that used in fitting out the Toyota Hiace vehicle.  Tapings taken from Scott’s coat gave strong scientific support for the assertion that her coat, which was new, had been in contact with upholstery of this kind. At the time of her death the coat was new, having been purchased earlier that week.

 

A brief history of DNA profiling relative to the trial
[22]      The summary which follows sets out, extremely briefly, the nature of some of the techniques used by scientists to obtain the evidence referred to in the previous paragraphs, and sets out, also briefly, the history of the investigation in this regard.  The intimate swabs were examined in 1977 using tests which could, and did, identify the presence of semen and/or blood on them, and also on the ligature used on Scott’s wrist.  DNA testing was not available in 1977, but scientists were able to identify the presence of two different blood groups, themselves differing from that of the girls, who shared the same group.  Forms of DNA profiling became available from about 1987, and in 1988 Cellmark Diagnostics, then recognised as leading exponents of the new techniques, were approached to ascertain what further testing might be done.  At that stage examination of the coat confirmed areas of seminal staining on the lining, from which however only a faint band of DNA could be identified.  An area of the staining was removed for preservation and future examination, should techniques become more advanced.  

[23]      As a consequence of further developments in DNA testing, items relating to the murder were submitted for further DNA testing in 1995.  The profiling technique used was Short Tandem Repeat (STR) typing which involved amplification of four areas of DNA using an amplification technique known as Polymerase Chain Reaction (PCR).  This kind of typing, the national standard at the time, was known as Quad typing.  A full DNA profile from an unknown male was obtained from the intimate swabs from both girls.  The same profile was found on staining on Scott’s coat.  A check of that profile against the National DNA database proved negative, however.  By 1997 the national standard for DNA profiling had been upgraded to an STR technique known as SGM, which examined 6 areas of DNA with a further area which would indicate the gender of the donor.  In about 1999 the national standard was upgraded to a more developed technique, SGM+, which examined 10 areas of DNA as well as the gender indicator.  The Forensic Sciences Service (FSS) at Wetherby upgraded the existing profile to these standards respectively in 1997 and 2002.  The profile remained unidentified at the time, either from the database or from the efforts of a widespread screening programme carried out in 1997-1998, and a second such programme carried out in 2001.

[24]      In 2004, further tests were carried out on an area of staining from the coat [20G], and this was sent for comparison with the original profile obtained from the coat and the swabs, in the expectation that it would be the same. In fact the profile found on 20G was a different profile, and this was the first time the presence of a second male DNA profile was identified.  The DNA profile on 20G which matched that of the respondent (para 20 above) was identified, and matched with him, in 2004. The profile from 20G was generated using SGM+ 10-site technology; the profile on the database to which it was compared, and which it matched in all respects, was an SGM-6 site profile.

[25]      In May 2004 Dr. Whitaker, who was at the time Principal Forensic Scientist at FSS, recommended that a further sample be obtained from the respondent, since it was his understanding that no further sample remained in existence.  In evidence he recalled making inquiry about the possibility of upgrading the 6-site SGM profile to a 10 site SGM+ profile and being told that he could not do so as there was not enough DNA available.  The identification of the respondent in this way led to investigation of associates of his, including Hamilton.  Hamilton was dead by this time, so familial and other testing was carried out to develop a surrogate profile relating him, effectively recreating his profile.  The result matched that of the unknown male whose profile was detected on various swabs as noted above.

[26]      Meanwhile, during 1999/2000 the FSS had been developing a new DNA profiling technique, namely Low Copy Number (LCN) testing which used the same scientific principles as SGM+ but with variations, including copying the DNA 34 times rather than the standard 28.  These variations were designed to increase the sensitivity of the process, and to generate DNA profiles from very small amounts of DNA.  From that date until 2007, LCN was the most sensitive technique available in forensic laboratories in the UK for identification of DNA profiles when working with small amounts of DNA.  It was also considered the best route to extract DNA from old, degraded samples and when searching for DNA deposited by touch.  Evidence based on this technique has been accepted in courts in England, New Zealand, Australia, Sweden, Scotland, Northern Ireland and Holland.  This technique was applied to some of the items relating to the murders, but the evidence relating to this examination, summarized below, was not led at the trial.  The examination was carried out in laboratories governed by quality control procedures laid down by the FSS Quality Management Group, which procedures are designed to ensure that scientists adhere to quality control processes.  These include measures both to avoid contamination and to detect it where it has occurred. For present purposes the terms low copy DNA and low template DNA, another term sometimes used in evidence, may be considered interchangeable.

[27]      There was a technique – known as Split Preferential technique, or Preferential Lysis, by which a sample of recovered material could be tested in such a way that any epithelial material within the sample would be largely separated out from any seminal material, enabling further testing to be carried out on the remaining seminal fraction.  There was a minor dispute in the evidence as to the exact effect of the technique on the cellular fraction, but in the end the preponderance of the evidence was that the cellular fraction was ruptured during the process and rendered unsuitable for further testing.

[28]      In relation to the “validation” and “accreditation” of forensic techniques, “validation" is the process of providing objective evidence that a method, process or device is fit for the specific purpose intended.  “Accreditation” is a formal, third party recognition of competence to perform specific tasks.  The United Kingdom Accreditation Service (UKAS) is the sole national accreditation body in the UK.  UKAS accreditation means the evaluator can demonstrate to its customer that it has been successful at meeting the requirements of international accreditation standards.  The use of LCN was not accredited by UKAS until 2009.

 

Decision of the trial judge
[29]      The trial judge upheld the no case to answer submission, concluding that the Crown evidence taken at its highest was “neutral” as to whether or not the respondent was involved in any act involving force or violence against either girl, or present when those acts took place, there having been some sexual contact between him and the girls over the period of 12 hours or so.  The judge also concluded that there was no evidence to establish rape, nor was there forensic evidence linking the respondent to the ligatures.  The judge was not satisfied that the evidence relied upon by the Crown could overcome the absence of such crucial evidence in providing a basis for an inference beyond reasonable doubt that the respondent was implicated in the rape and murder of the girls.

 

Evidence available but not led at the trial
[30]      As explained elsewhere in this opinion, forensic examination of various items connected with the murders had taken place at intervals of time from 1977 onwards.  In 1977 semen had been found on the intimate swabs and on a white stain on the belt ligatures (X141).  Semen had also been found on extensive staining in the lining of the coat (X140).  In 2001 pieces of fabric were removed from the ligatures X141, X107, X106, X108 and X110 and respectively marked A, B, C, D and E.  Certain knots had been unraveled and the sampling had been from areas within or adjacent to the knotted areas.  Although some results were obtained from items A-C and E, the results were complex mixed profiles comprising DNA from a number of people and it was not possible to generate a profile for comparison purposes.  A similar exercise was carried out in 2004 when further pieces of fabric were removed from the ligatures X107, X106, X110 and X108 and marked respectively A1-A4, B1-B2, D1-D2 and E1-E4.

[31]      The evidence available at the trial in respect of these matters was as follows:

 

EADIE
[32]      LCN profiling tests were performed on extracts prepared from the cellular material from various areas of the ligatures.  These included areas marked B2, B4, E1 and E3.  B2 and B4 were taken from areas removed from the tights used as a wrist ligature (X106), and E1 and E3 were taken from areas on the brassiere used on Eadie’s mouth (X108).  DNA profiles from at least 3 people were detected.  DNA bands matching both Eadie and Hamilton were detected, with Eadie’s profile being strongly represented.  Of the remaining bands which were not present in the profiles of either Eadie or Hamilton, they were all represented in the profile of the respondent.  Regarding B2 and B4, the prospect of the combination of these latter bands occurring in the general UK population was calculated as 1 in 13, which experts indicated represented moderate support for the assertion that DNA from the respondent was present on these areas of the tights.  Regarding E1 and E3, the prospects of these occurring in the general population were calculated as 1 in 13 and 1 in 390 respectively, which, because of the distribution of the relevant bands, experts indicated represented moderate support for the assertion that DNA from the respondent was present on area E1 of the brassiere, and moderately strong support for the assertion that DNA from the respondent was present on area E3.  It is a matter of agreement that from this evidence the respondent’s DNA can be considered present on all of these 4 areas, in association with DNA from Eadie and Hamilton.

 

SCOTT
[33]      LCN profiling tests were performed on extracts prepared from the cellular material from various areas of the ligatures.  These included an area marked D2, from the crotch area of the tights used as a neck ligature (X110).  The tests revealed DNA bands observed in the profiles of Scott, Hamilton and the respondent, with all of the bands present in Scott’s reference profile being strongly represented.  Of 4 additional bands identified, 3 matched the profile of Hamilton.  The remaining band was represented in the profile of the respondent and would be expected to occur in approximately 1 in 2 of the population, providing limited evidence of association with him.  LCN DNA analysis of a section of the coat revealed a mixed, partial DNA profile matching that of Scott and the respondent.  Analysis of an area of white staining (area 20) on the belt ligature (X141) revealed a partial profile (8 types) matching the profile of Scott.

 

Other evidence available but not led at the trial
[34]      The Crown had available to it evidence from a consultant forensic scientist, Roger Ide, to the effect that the different knot tying characteristics found in the bindings used on Eadie and those on Scott were consistent with their having been tied by two different people.  It is agreed that this would have permitted the inference that more than one perpetrator was involved.

[35]      The Crown had available evidence from Allan Dixon who had been Scott’s boyfriend in the 3 years prior to her death.  He would have given evidence that he had never had sexual intercourse with her and that at the time of her death she was a virgin.

 

Further development in DNA techniques since the trial
[36]      Since 2007, several further DNA profiling techniques have been introduced into forensic casework.  These include the following:

(a)        Crimelite ML
This is a specialised, filtered light source used to screen for the presence of material exhibiting fluorescence, which is not always visible under white light, and which may include body fluid stains and cellular material.  It is a detection tool but also an interpretative tool. It allows forensic scientists to visualise fluorescing material and its distribution and consequently to target areas for further examination, by minitaping or otherwise.  Using this technique it may be possible to determine how the fluorescing material could have been deposited onto the surface of the item, for example by assessing whether the deposit was on the outside or inside of a garment or noting how the deposited material has been distributed on a garment.  It can identify material which would have been invisible under the normal type of strong white light used at crime scenes and in laboratories.  The technique was introduced into casework in 2008-2009, validated in February 2011 and accredited by UKAS in November 2011.

(b)        Extended Acid Phosphatase (AP) testing
This is a chemical screening test for the presence of constituents of semen.  The technique itself is not new but the methodology of the technique has been revised by extending the time limits used for carrying out the test from 2 minutes to 10 minutes.  This increases the sensitivity of the test and allows smaller amounts of material to be detected, including semen stains which in the past might have been recorded as negative.  The original technique was accredited by UKAS in 2008, with the use of extended times being accredited in March 2010.

(c)        Sperm Elution
This is a technique which improves the separation of spermatozoa from cellular material, thereby improving the detection and recovery of spermatozoa and the prospect of obtaining a DNA profile from the recovered material.  The technique separates the seminal fraction of the sample from the cellular fraction, both of which can be subjected to further testing.  It is of value when the levels of spermatozoa may be low or poor quality due to degradation over time and when there is a high background of cellular material. By maximising the preservation of spermatozoa, the technique increases the prospect of being able to obtain a DNA profile from the seminal fraction.    The test was accredited by UKAS in September 2008.

(d)        Minifiler
This is a DNA technique increasing the ability to obtain DNA profiles from degraded samples and very weak DNA profiles.  It is a specialist technique not routinely used in casework, and in any event not used by laboratories in casework until after the trial was concluded.  It became available commercially in July 2007, was validated in February 2008 and accredited by UKAS in May 2010.

(e)        Enhanced DNA
This is a specialist technique, accredited by UKAS in 2009, whereby the sensitivity of testing is heightened by further amplification and reanalysis of the material available for testing.

(f)         likeLTD software
This software was developed in 2009 to carry out statistical evaluations of DNA profiling results.  It assists in the analysis and interpretation of low template DNA profiles by providing likelihood ratios for contributors of DNA to the relevant sample.

[37]      “Trace” means a low signal indicative of the presence of DNA but in insufficient quantity to process it further.  “Full profile” means that the bands are identified at all 10 sites of SGM+ (or the equivalent for whatever form of testing was at the time in use).

[38]      The maximum number of bands from one individual at any given site is 2.  If more than 2 bands are identified at any site it indicates the presence of DNA from more than one person.  The distribution in a mixture may be proportioned relatively evenly amongst the donors, making their respective contributions difficult to separate out.  The result will be called a mixed profile.

[39]      At other times, the result may indicate an imbalance in the distribution enabling scientists to label one contributor as the major donor and another or others as minor contributors.  This may be referred to as a mixed or a “mix-major” profile. 

[40]      Over time, and as a result of environmental factors, DNA can be subject to degradation.  This process can affect all areas of DNA routinely tested, but more commonly affects the largest of these areas, those with the highest molecular weight.  When a DNA profile using SGM+ is reported as incomplete, with the belief that this is the result of degradation in the sample, it may be possible to use some of the specialist techniques referred to above, in particular Minifiler, in an attempt to improve the resultant profiles.  Minifiler is often selected when degradation of a sample is suspected, because it is optimised to produce results from degraded samples.

[41]      Where there are very low quantities of DNA, attempts to copy the DNA using PCR may result in an observed distribution being noted in the final result which is not in fact representative of the true distribution of the DNA within the sample.  This is known as stochastic effect. Amongst other matters, this was a factor which led in England to concerns regarding the use of LCN DNA, and the recommendation that a form of quantification should be carried out to limit the possibility of stochastic effect.  There was no basis for considering that the results in the present case were affected by these issues.  Dr. Whitaker said that “nothing made me think that our results were affected by a quantification issue” and there was no evidence to suggest otherwise.  Accordingly we propose to say nothing further about quantification or stochastic effect.

[42]      “Drop in” is a term which refers to elements of DNA which have dropped into the mixture from test tubes, handling, transfer, reagents or other external sources but which are not integral to the sample.  Where additional bands are found which cannot be accounted for, it is necessary to bear in mind the sensitivity of LCN testing, which means that it might detect low amounts of DNA which are not part of the original but are attributable to drop in.  One or two bands may be seen – when greater quantities are observed one requires to be alert to the possibility of contamination of the sample.  Duplication of results can combat the possible misleading effect of drop in.  If the results appear again in duplicated tests, they will be considered as part of the sample and not attributable to drop in.

[43]      “Drop-out” is the term used when certain results, which might be expected on a certain hypothesis of the case, are not confirmed.  For example, if it were anticipated that an individual’s DNA might be present but a match is only identified at 14 bands, the remaining, missing bands are referred to as “drop-out”.

 

Evidence relied upon in support of the application
[44]      This evidence relates to testing carried out by Cellmark between 2011 and 2012.  All examinations included the use of Crimelite as part of the initial search examination strategy, to assist in the identification of areas of fluorescence which could be targeted for further examination.  The findings from this directed the sample recovery and, in some samples, allowed an assessment of the method of sample deposition and enabled interpretation of the subsequent DNA findings.  We accepted the evidence of Geraldine Davidson, a Senior Forensic Scientist at Cellmark Forensic Services, that many of the samples recovered as a consequence of this fluorescence targeted approach could not have been achieved previously and the assessment of how material may have been deposited could not have been determined during previous analysis of these items.  The original examinations using Crimelite, extended AP testing and Sperm Elution, were carried out by Geraldine Davidson and Andrew Davidson, also a Senior Forensic Scientist at Cellmark.  Where Minfiler was used, this specialist technique was applied by Andrew McDonald, Senior Scientist at Cellmark specialising in advanced DNA testing techniques.  The analysis using likeLTD software was carried out by Professor David Balding, Professor of Statistical Genetics at University College London, who had developed the programme in question.

 

Eadie
Ligature from wrists (tights) production X106
[45]      The evidence available at the trial in respect of this item is referred to at paragraph 28 above.  When the item was received at Cellmark in 2011/12, it consisted of sections of knotted and tangled tights.  From labels which had been attached during earlier examinations to sections where the ligature had been cut to facilitate removal (these areas were referred to as “recovery cuts”), it was possible to identify which sections had been attached to the right wrist and which to the left.  The labels attached to the ligature by string were removed, thus exposing areas which had not been exposed since the ligatures were removed, having been covered or enclosed by the string, and so preserved.  The remaining knots were untied, having a similar effect.  The exposed areas were subjected to Crimelite testing for areas of fluorescence.  Areas 15, 27, 28 and 33 were all from within the tied areas of the ligature, areas 15 and 33 from an area which would have been on the right wrist, and areas 27 and 28 from the left.  Areas 20, 21 and 22 were from within the three knots which were untied.  It was surmised that the offender(s) would have been likely to be in contact with these areas when tying the ligatures.  Minitape samples taken from the areas identified under Crimelite were submitted for SGM+ testing.  The results were largely low-level, incomplete and complex.  In the opinion of Geraldine Davidson, the results obtained from areas 20, 21, 22, 27, 28 and 33 were what might be expected from a mixture of DNA from Eadie and Hamilton with a minor contribution from the respondent and, potentially, Scott.  On examination of these samples, when a component could be accounted for only by one of the four individuals, in other words it was not common to any two or more of them, it was attributed to that individual.  In relation to all the samples except area 15, the view expressed was that if Eadie, Hamilton, Sinclair and Scott had all contributed DNA to this mixed profile, there was still an indication of a trace amount of DNA from at least one further individual.  These indications of a third profile did not relate to one commonly occurring profile and were not consistent across the results.  The absence of any commonly occurring component, and lack of consistency, across the results, led the Davidsons to conclude that there was nothing to support the presence of DNA from a further identifiable common individual.

 

Ligature from neck (tights) production X107
[46]      When received by Cellmark, this item consisted of 3 sections, with no knots remaining in place.  All sections were tested using Crimelite, when a total of 21 minitape samples were taken from a number of fluorescing areas from all 3 sections of the tights.  Again samples were taken from areas which had originally been within knotted areas, or which were in areas relating to cut ends, tied with string after removal of the ligature, where the removal of the string again exposed areas which had not been exposed since the ligatures were removed.  Areas of discrete fluorescence from all three sections were excised and extracted using Sperm Elution, with the result that spermatozoa at varying levels were identified in eight of these samples.  In total 12 of the areas (or combined areas, where sampling had been from corresponding inside and outside surfaces) targeted were submitted for testing with SGM+.  The results were again largely low-level, incomplete and complex.  Again, most of these areas contained DNA which could be accounted for by DNA matching Eadie herself, the respondent and Hamilton, and in some instances Scott.  Areas 20 and 23 were considered to be particularly significant as they were on the inside and outside of a torn edge of the main body section (section 3), in the areas of a recovery cut, where it was reasonable to expect that the item might have been held when the leg was torn, if the tearing was for the purpose of use as a ligature rather than something happening during consensual sex.  If the former had occurred, offender DNA might be recovered.  From area 20 (a minitaped sample within an area of section 3 cut on removal of the ligature) a low-level, incomplete mixed DNA profile was obtained.  The most prominent components matched components present in the profile of Eadie.  However, components matching those present in the profiles of Scott, Hamilton and the respondent were also detected.  The results were such that all the DNA on this sample could be accounted for by DNA from Eadie, Scott, Hamilton and the respondent.  From area 23 (seminal fraction obtained by Sperm Elution from an area near a recovery cut) a low-level, incomplete, mixed DNA profile was identified, largely accounted for by DNA components matching components present in the profiles of Hamilton and the respondent, with some components also matching areas present in the profile of Eadie.  There was nothing to support the presence of DNA from a further identifiable common individual.

[47]      In the opinion of the Davidsons, the presence of DNA matching the respondent and Hamilton on both these ligatures supports the proposition that these ligatures have been in contact with a source of DNA matching the respondent and Hamilton.  Further, as these samples have been recovered from areas which were preserved within knots, and tied areas, this accords with the DNA having been present at the time the ligatures were tied.  The Davidsons were further of the opinion that had the respondent and/or Hamilton used the above ligatures to bind or strangle Eadie, one would expect to detect their DNA on these surfaces of the ligature.  The findings were consistent with X106 and X107 having originally been part of the same garment.

 

Ligature from neck (bra) production X108
[48]      The evidence available at the trial in relation to this item is recorded at paragraph 28 above.  When received by Cellmark, the item was in two sections, with one recovery cut being present, through the left cup, with each end of the cut being secured with string.  Both sections were examined using Crimelite.  Fluorescence was detected in several areas, which were minitaped, including areas 11 and 14.  A further area adjacent to area 11, area 11A, tested positive for semen after 7 minutes using the extended AP test. Areas 11, 11A and 14 were thought to be significant as they were within the knotted area at the foot of the left shoulder strap and thus were areas where DNA might be deposited when the garment was being tied as a ligature.  All 3 areas were subjected to Sperm Elution to maximise the separation of sperm from cellular material. In each case the seminal fraction was sent for SGM+ testing.  The seminal fractions from areas 11 and 11A were combined given their co-location.  From the combined sample, a prominent DNA profile was found, which matched components present in the profile of Hamilton.  The profile was incomplete and there was an indication at low-level of another contributor.  The areas in question were subjected to specialist analysis using Minifiler, which identified a mixed profile of the kind to be expected if Hamilton were the major contributor and the respondent the minor contributor.  From area 14 a prominent DNA profile was identified, with components matching components present in Hamilton’s profile, but with low-level indications of DNA from at least another person.  Specialist analysis using Minifiler identified a mixed profile of the kind to be expected where the majority of the DNA was contributed by Hamilton and the respondent.  These results were subjected to statistical evaluation using the likeLTD software.  Regarding areas 11 and 11A, the results provided extremely strong evidence for both Hamilton and the respondent to be contributors to the sample.  Prof. Balding considered it to be at least 20 million times more likely if both Hamilton and the respondent contributed than only one or neither of them.  For area 14, the results provided extremely strong evidence for both Hamilton and the respondent having been contributors.  In the opinion of Prof. Balding, the results were over a billion times more likely if both Hamilton and the respondent contributed than only one or neither of them.  The DNA profiles matching Hamilton were attributable to semen.  It was not possible to say whether those aspects which matched the respondent came from semen, cellular material or both. Again, across the testing there was nothing to support the presence of DNA from any further common, identifiable individual.

 

Scott
Ligature from neck (tights and belt) production X110

[49]      The evidence available at the trial in connection with this item is referred to at paragraph 29 above.  When received by Cellmark the tights were in four sections.  Areas 64, 65 and 68 of section 2 were submitted for analysis, resulting in low-level partial DNA profiles which could be accounted for primarily by DNA matching Scott.  There were other components in this mixed profile matching Eadie, Hamilton and the respondent, such that the DNA detected on areas 64 and 65 could all be accounted for by DNA from these four individuals.  Area 65 was a sample taken from an area from which a knot had been removed.

[50]      Using Crimelite, fluorescence was detected on the outer side, “A”, of section 3.  When the fluorescing area was opened out, the fluorescence was seen to be from material deposited on the outside edges, with void areas noted in the middle (showing no fluorescence), leading to the conclusion that the fluorescing material had been deposited on the outside when the item was folded or ruffed for use as a ligature, and not when the garment was being worn normally.  Samples from within fluorescing areas, marked 44 and 46, were excised and marked 49 and 50.  The sections of the ligature were intertwined with one another, and the samples were taken from a protected area of section 3.  Spermatozoa were identified on both areas 49 and 50.  Minitapes from areas 46, 47 and both the cellular and seminal fractions of area 50 (produced using Sperm Elution) were subjected to SGM+ testing.  In relation to area 46 a prominent DNA profile was identified, containing components present in the DNA profile of Hamilton.  There were also indications of a further contributor so Minifiler analysis was carried out.  This revealed a mixed partial profile, contributed to by at least 3 people.  Hamilton was identified as a possible major contributor, with Scott as a possible minor contributor.  Statistical analysis suggested that it was in excess of a billion times more likely if the results attributed to the major contributor originated from Hamilton rather than another person unrelated to him.  SGM+ testing of area 47 revealed a mixed, partial profile from at least 2 contributors, of which the prominent components matched components present in the profile of Scott.  No DNA attributable to Hamilton was identified on this area, reinforcing the view that his DNA was deposited during the tying of the item as a ligature, and was thus found on the outer edges not on the inside.  The results of SGM+ testing on area 50 produced a seminal profile so low as to be unsuitable for comparison, so further testing was carried out using Minifiler.  The testing on the seminal fraction revealed DNA from at least 2 individuals, from which Hamilton could not be excluded.  SGM+ testing of the area 50 cellular fraction revealed a prominent profile containing components which matched components present in the profile of Hamilton, with indications of a further contributor, so that sample was also subjected to Minifiler testing, revealing a mixed, partial profile from at least 3 contributors, of which Hamilton could not be excluded as the major contributor.  Statistical evaluation of both fractions of area 50 was carried out using the likeLTD software.  The probability that the DNA originated from Hamilton, Scott, Eadie and one unknown person was considered to be 1 billion times more likely than if it had originated from Scott, Eadie and two unknown persons.  In relation to area 45, complex, low-level, partial DNA results were obtained, with DNA present which matched that of Eadie, Scott, Hamilton and the respondent, with some indications of a further presence. 

[51]      Complex low-level results were obtained from analysis of areas 51-54 of section 4.  All of the DNA on areas 51, 53 and 54 could be accounted for by DNA from Eadie, Scott and Hamilton.  In area 52 there was also DNA matching the respondent, and an indication of DNA which was not accounted for.

[52]      The conclusion expressed by Geraldine Davidson was that the presence of DNA matching Hamilton, and, where present, the respondent, supported the contention that this ligature had been in contact with a source of their DNA, and that in the case of Hamilton, this occurred when the item was being used as a ligature.

[53]      The belt was in 2 sections when received by Cellmark. Several areas subjected to Sperm Elution were referred for DNA analysis. Low level, partial profiles from areas 1 and 4 indicated the presence of DNA from at least 2 individuals, the majority of the components matching corresponding components in the DNA of the respondent.

 

Ligature from wrists (belt) production X141
[54]      When received by Cellmark the belt was in 5 sections and was no longer knotted.  String had been applied to the recovery cuts, and this was removed.  All sections were examined using Crimelite and minitapes applied to any areas of fluorescence.  No positive reaction for semen was noted under extended AP testing.  Samples were taken from several areas, including those marked 26 and 27, being areas adjacent to the original knot and thus which were thought likely to have been handled when being tied.  These areas were separated using Sperm Elution and the resulting fractions subjected to testing with SGM+, revealing low-level incomplete profiles from both fractions of 26, which could be accounted for by DNA from Eadie.  The seminal fraction of area 27 revealed a low-level, mixed, profile suggesting at least 3 contributors.  The majority of the components could be accounted for by DNA from the respondent, but, because of certain shared components, Eadie could not be excluded as a contributor.  Although this was the seminal fraction, it is not always possible to ensure no remaining contamination from the cellular fraction of the sample, with the consequence that when results are at a low-level it is not possible to say whether the resulting profile came only from seminal material.  The cellular fraction from area 27 indicated a mixed incomplete profile from at least 2 contributors, the majority of which could be accounted for by Eadie, although Scott and Hamilton could not be excluded. The prominence and persistence of Eadie’s DNA on this item suggested that it had been tied as a ligature when the girls were still together or had only recently been separated.

 

Coat production (X140)
[55]      Areas of fluorescence identified under Crimelite led to further testing of several areas, including the application of Sperm Elution.  The seminal fraction of area 13 produced a mixed DNA profile indicating the presence of at least two individuals, of which the profile of the respondent matched that of the major contributor, with the probability that it was 1 billion times more likely for the DNA having originated from him rather than from someone unrelated to him.  Several further components matched the profile of Hamilton, such that he could not be excluded as the minor contributor.  In each case it was more than likely that the source of the material was semen.  Results from the seminal fraction of area 14 indicated that Hamilton and the respondent could not be excluded as having contributed to the DNA deposited thereon, with an indication of a further person, most likely Scott, whose coat it was.  There was otherwise extensive semen staining on the coat, much of it consistent with having been deposited by the respondent.  The opinion of Geraldine Davidson, noting that the DNA which had persisted on the intimate swabs came from Hamilton, and not the respondent, was that this was the result of ejaculation directly onto the coat, and not a drainage stain as had originally been posited.  Clearly, this is evidence which could reasonably have been made available at the original trial.

 

Pants found near to the head of Scott production X109
[56]      Crimelite testing revealed fluorescence at 5 areas, some on inside surfaces, some on outside, and some on both inside and outside surfaces.  These areas, which included areas 3, 6 and 12 and the entire gusset were excised for further testing.  After minitaping, the remaining item was chemically screened for the presence of semen using the extended AP test, with several areas giving a positive reaction.  The positive reactions were stronger on the inside surface, predominantly on the upper body.  In consequence an area of the upper front, area 12, was removed for further examination.  The samples from areas 3, 6 and 12 were all subjected to separation by Sperm Elution, and the seminal fractions sent for SGM+ testing.  The results from areas 3 and 6 indicated the presence of a complex result with a prominent DNA profile matching components present in the profile of the respondent.  The sample from area 3 was subjected to specialist analysis using Minifiler, which in turn indicated a mixed profile indicative of at least 3 contributors.  A major contributor could be detected at most areas of DNA tested, and this profile matched that of the respondent who could not be excluded as the source of the major contribution.  Hamilton and Scott could not be excluded as possible minor contributors.  Statistical analysis using likeLTD software provided extremely strong evidence for both Hamilton and the respondent to be contributors to the sample.  In the opinion of Prof. Balding, the results were more than 2.5 million times more likely if both the respondent and Hamilton were contributors to the sample, rather than only one or neither of them.  The seminal fraction of area 12 revealed a complex result, with a prominent DNA profile containing components present in that of the respondent.  The sample was subjected to Minifiler testing which indicated a mixed profile with at least 3 contributors.  A major contributor could be detected at most areas of DNA tested and this matched the profile of the respondent, who could not be excluded as the major contributor.  Andrew McDonald, the specialist scientist who carried out the Minfiler analysis, considered it to be in excess of a billion times more likely if the results attributed to the major contributor came from the respondent rather than another person unrelated to him.  Statistical analysis using likeLTD software provided extremely strong evidence for both the respondent and Hamilton to be contributors to the sample.  Prof. Balding was of the opinion that the results were at least 10 million times more likely if both the respondent and Hamilton were contributors of DNA to the sample, rather than only one or neither of them.  The DNA profiles matching the respondent from areas 3 and 12 can be attributed to the presence of semen.  The nature and distribution of the semen on the underpants is not consistent with drainage onto them following intercourse.  Standing the fact that the seminal material on Scott’s intimate swabs was attributable to Hamilton, scientists would have expected to find semen matching his profile on the crotch, had the underpants been worn after intercourse.  For these reasons it is thought that the underpants had not been worn after sexual activity took place.

 

Samples taken from the accused
[57]      It is agreed that in 1998, following amendment to the Criminal Procedure (Scotland) Act 1995 by the Crime and Punishment (Scotland) Act 1997, a sample for DNA purposes was lawfully taken from the respondent under section 19A of the 1995 Act.  This sample was tested using the SGM profiling technique with the result that a full profile was obtained and entered into the national database.  On 25 November 2004, the respondent was detained in terms of section 14 of the 1995 Act in connection with the rape and murder of Eadie and Scott.  On 26 January 2005, the respondent was detained in terms of section 14 of the 1995 Act.  During each of these periods of detention, a DNA sample was lawfully taken from him.  On 31 March 2005, at Dalkeith Police Station, a further DNA sample was lawfully taken from him in connection with the investigation into the rape and murder of Eadie and Scott.  That sample was tested using the SGM+ profiling technique and a full profile was obtained.

[58]      A buccal sample for DNA purposes was taken from the respondent on 17 April 2012 at HMP Glenochil by DS Ritchie and DC Smith, acting on the instruction of Det. Supt. Flanagan.  Det. Supt. Flanagan gave evidence that he had instructed DS Ritchie to obtain the sample under reference to section 19A of the Criminal Procedure (Scotland) Act 1995, and DS Ritchie confirmed that this was his understanding of the instructions he received.  Both gave evidence of their understanding that the appellant’s previous convictions enabled them to take a sample under section 19A.  Det. Supt. Flanagan instructed DS Ritchie that he was not to use physical force and that access to a solicitor, if sought, was to be facilitated.  The respondent was to be told that the sample was required for an ongoing police investigation.  DS Ritchie gave evidence that he advised the respondent that a sample was being sought in relation to an ongoing inquiry, and that provision of it was voluntary.  As he was in the process of explaining the legislation (to which he had had recourse prior to his visit to the prison), the respondent indicated that he was quite happy to provide a sample.  DC Smith confirmed that the respondent was told that swabs were being sought as part of an ongoing inquiry, that legislation was in place to allow this to happen, but that he had a right to refuse to give a sample. Almost straight away he said “go ahead”.

[59]      In an affidavit dated 12 December 2012, Det. Supt. Flanagan made reference to section 19 of the 1995 Act, later amended to section 19A in a subsequent affidavit.  He explained the reference to section 19 as an error, and stated that he was fully aware at the time of the terms of section 19A and was clear at the time that he was proceeding under that section.  In this he was amply supported by a contemporaneous exchange of e-mails with the Procurator Fiscal depute in charge of the case, in which, by e-mail of March 2012, the depute sent him a link to section 19A.  His reply makes it clear that he had considered the terms of that section.  He was also supported by the evidence of DS Ritchie, who explained also that although in his preparatory notes he too had referred to section 19, he had realised on looking in to the matter prior to taking the sample that the correct reference was section 19A.  DC Smith gave evidence that her understanding was that the power under which the samples were obtained was contained in section 19A.

[60]      Dr. Whitaker gave evidence in relation to the testing of ligatures carried out by him in 2004, referred to at paragraphs 27 and 28 above.  He explained that the reference profile of the respondent which was held on the system was a 6-site profile, whereas the profile he obtained from the coat was in a 10-site format.  He made inquiries as to whether the sample could be upgraded to a 10-site format and was told that this could not be done because there was not enough left.  He recorded this in a memo dated 7 May 2004 in which he noted: “I understand that no further sample remains from him in the database archiving system.”

 

Submissions
CROWN
Swabs
[61]      Addressing the issue of the admissibility of the buccal swabs obtained from the respondent on 17 April 2012, the Lord Advocate submitted:

(a)        The swabs had been lawfully obtained under section 19A of the 1995 Act;

(b)        In any event, the respondent had given informed consent to the taking of the samples; and

(c)        In any event, the samples were admissible under the principles of Lawrie v Muir 1950 JC 19.

[62]      There was no dispute that the previous convictions of the respondent were such as to bring him within the scope of section 19A.  The evidence of the police officers concerned indicates that they were all acting pursuant to that section, which evidence was supported by the e-mail chain (production 28) between the senior officer and the Procurator Fiscal depute in charge of the case.  A sample taken pursuant to section 19A may be used, in terms of section 19C(2)(a):

“(a)      for the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution, …”

 

which is the purpose to which both Det. Supt. Flanagan and DS Ritchie referred.  Where a person has previously provided a sample, section 19A may not be utilised “unless … the sample so taken or required has been lost or destroyed.”

[63]      Dr. Whitaker had given evidence that he was unable to upgrade the sample as no further sample remained.  Accordingly, the respondent fell within the scope of the legislation, the power was available and was invoked by the police.  The sample was therefore admissible.

[64]      If the court concluded otherwise, the sample was nonetheless admissible on the basis that the respondent had consented to its taking.  He had been informed that the sample was required in connection with a police investigation and crucially, he had been informed that he had the right to refuse.  It was not necessary for him to be advised of the specific purpose for which the sample is being taken.

[65]      Finally, if the court concluded that the sample had been irregularly obtained, the irregularity was one capable of being excused on the basis of the principles in Lawrie v Muir (supra).  The police had a power available to them under section 19A and had tried in good faith to exercise that power and any failure on their part was through error.  The respondent was not forced or tricked, was informed in broad terms of the purpose for which the sample was sought, and was given the opportunity to refuse.  He could be in no doubt that the police were collecting evidence which might be used against him.  The crimes in question were extremely serious and the samples were obtained using a procedure which was minimally invasive.

 

Double Jeopardy (Scotland) Act 2011
[66]      The Lord Advocate addressed the criteria which require to be established before the court could set aside a conviction and authorise a new prosecution.  The evidence requires to be new, and section 4(7)(b) requires the court to be satisfied that the new evidence was not available, and could not with reasonable diligence have been made available at the trial.  “Evidence” is not defined but should be given its ordinary meaning.  Section 4(4) provides that evidence which was not admissible at trial, but is admissible at the time of an application, is not new evidence.  That differs from the position in England, where section 78 of the Criminal Justice Act 2003 provides simply that evidence is new if it was not adduced at the original trial.  Subject to section 4(4) evidence is new if it was not available at the original trial.  The reasonable diligence test is higher than the test for new evidence under section 106 of the 1995 Act, where all that is required is a reasonable explanation of why the evidence was not heard in the original proceedings.  The court requires to be satisfied that the evidence was not available, and could not with reasonable diligence have been made available.  Given that the evidence upon which the Crown relies relates to scientific techniques which were not developed or in use at the time of the trial, this aspect of the test is met.  

[67]      Section 4(7)(a) provides that the court must be satisfied that the case against the person is strengthened substantially by the new evidence.  Section 4(7)(c) provides that the court must be satisfied that, taken with the evidence led at the trial, it is highly likely that a reasonable jury properly instructed would have convicted the person of the original offence.  The court thus requires to form a view of the new evidence alongside that led at the trial and assess whether it is capable of establishing guilt.  What is meant by “the case” is the evidence presented at the trial. In considering whether the case is “strengthened”, the court should not have regard to any evidence which was available but not led at the original trial.  It should have regard to the new evidence and the evidence which was in fact led at the original trial.  To do otherwise would require the court to embark into an open ended inquiry into all the evidence which might have been available to the Crown at the time of the trial.  The evidence which was available to the Crown but not led, requires to be taken into account in addressing the reasonable diligence test, but not otherwise.  If the new evidence satisfies the statutory test, the Crown could proceed to lead the evidence which was available but not led at the original trial, although in the present case it did not intend to do so.

[68]      In relation to the evidence available at trial but not led, the court required to bear in mind a number of factors.  First, the statistics were based on a technique known as conditioning, a method of which Prof. Balding was highly critical.  The software which he has developed allows analysis of complex and degraded mixtures, which conditioning does not.  The statistical probability was in any case low.  Secondly, the DNA was thought to be cellular, as can be seen from Dr. Whitaker’s original report, which noted that “DNA profiling tests have been performed on extracts prepared from the cellular material recovered from each of the portions of the ligatures listed above.”  Finally, Dr. Whitaker also stated that:

“… these results were explained if both Mr Hamilton and Mr Sinclair had had contact with these items at some time thus transferring their DNA to the surfaces tested.  It was not possible to determine from these results if the transfer might have occurred through consensual or non-consensual activity or whether or not the transfer was a result of direct (primary) or indirect (secondary) transfer.”

 

Consensual sexual intercourse would inevitably involve the handling of underwear. Bearing in mind all these factors, the LCN evidence would not have made any difference to the opinion of the trial judge.

[69]      The final matter about which the court requires to be satisfied is that it is in the interests of justice to set aside the acquittal and allow a new trial.  The respondent maintained that a fair trial cannot be guaranteed because of the extent of prejudicial publicity.  In dealing with such a matter in advance of a trial the test is a high one, namely whether or not it is inevitable that the respondent will not receive a fair trial.  The court should have regard to the following factors:

• The passage of time: a considerable period of time has elapsed since any of the publicity relied upon by the respondent
• That the trial judge will be able to direct the jury on this matter, and there is a strong presumption that juries will follow directions
• The trial process itself focuses the jury on the evidence itself and ensures that they try the case in accordance with their oath, and the evidence
• The trial could be relocated outwith the area of the crimes
• It is open to the court to make or continue a Contempt of Court order
• It is highly unlikely that the jury will have read all the prejudicial material.

[70]      If all these factors are taken into account, it is not possible to say that it is inevitable that the respondent will not get a fair trial.  The fact that a fair trial can be achieved is a relevant factor in considering whether it is in the interests of justice for the application to be granted.  All the witnesses save one who was listed but not led at the trial are available to be called in any new trial.  The Crown had acted expeditiously, after the passing of the legislation, to commission the new work and bring the matter to court.  Moreover, these were appalling crimes in respect of which there was compelling evidence that the respondent was responsible.  The families of the girls are still alive.  To grant the application would maintain confidence in the system.

[71]      Turning to the evidence itself, the trial judge had upheld the no case to answer submission on the basis that, in the absence of a temporal link between the depositing of the respondent’s semen and any acts of violence, that evidence, together with evidence indicative of Scott having been in a vehicle owned by the respondent, was” neutral” as to any involvement by the respondent in acts of violence.  The trial judge considered that there was neither evidence of compulsion or force in relation to any sexual activity, nor any evidence linking the respondent with any of the items used in the course of killing the girls, such as the ligatures.  The court should proceed on the basis that this decision was correct.  The present application was not an appeal and the correctness or otherwise of that original decision was not a matter for consideration.  Rather, new evidence supplied the deficiencies identified by the trial judge.  The overall effect of this evidence was to allow the inference to be drawn that DNA from the respondent and Hamilton was deposited on ligatures at a time when they were being used as ligatures.  The forensic examination carried out was extensive and scientifically complex.  It is the combination of new techniques, only available since the trial, which has permitted the DNA material matching the respondent and Hamilton to be detected, sampled and interpreted as it now has been.  A number of items of evidence are relied upon in support of the application, but provided that any one of them satisfies the statutory test, the application may be granted on that basis alone.  In respect of the new evidence:

 

Ligature X106
[72]      Only the use of Crimelite enabled the Davidsons to visualise the stains on this item and direct where sampling should take place.  Without Crimelite they would simply have sampled anywhere within an area, using investigative intuition, but with no clear border where sampling should start or stop.  The disadvantages of such an approach were illustrated by the testing initially carried out by Lester Knibb, a retired forensic scientist who had worked originally for the Lothian and Borders Police in their Forensic Science Laboratory, and then later for the Scottish Police Services Authority when forensic science services were devolved to that body.  He had carried out testing on this and other items in 1977, 1988, 2001 and 2004.  In respect of this ligature, he was able to see the knots but not the staining, so sampled the general area of and around the knots, whereas Geraldine Davidson was able to distinguish the staining from the general background.  The deficiencies of a system which relies on investigative intuition can also be seen from the testing carried out by Dr. Whitaker in 2004, when a significant background attributable to the girls themselves was noted, not surprising in the absence of a tool such as Crimelite.  The DNA evidence in relation to this ligature is different from the LCN evidence which was previously available, since the scientists are now able to opine on the significance of the indication of trace amounts of DNA not attributable to any of the respondent, Hamilton or the two girls.  At the trial, a forensic opinion on the likely involvement of third parties was not available, and could not with reasonable diligence have been made available.  Now, scientists can opine that despite extensive, focused testing, directed to areas of complex ligatures which would have been subjected to substantial handling by the offenders, there is no indication to support the presence of DNA from any other common individual.  Moreover, this evidence rebuts any contention that the sexual activity was consensual.  The lack of a third party and the absence of consent entitles a jury to hold that the sexual activity was contemporaneous with the violence.

[73]      The LCN profiles originally detected could not provide any information regarding the actions which caused the DNA to be deposited.  The evidence of Lester Knibb (to this court) was that he was not qualified to interpret the results of DNA analysis.  Dr. Whitaker explained that forensic scientists adopted a hierarchical approach, starting with the nature of the source, before moving to the nature of the activity, but in 2004 they had been very much at source level.  The general approach was that where results were obtained from LCN profiling it was inappropriate to comment upon the activity by which the DNA was transferred.  By contrast, as a result of the testing on areas targeted by the use of Crimelite, Geraldine Davidson can say that since the samples have been recovered from areas which were preserved within the knots, and tied areas, that is consistent with the DNA having been deposited at the time the ligatures were tied.  This interpretation was not available at the trial and transforms the significance of the DNA evidence from neutral to supportive of an inference that it was deposited during acts of violence.  Contrary to the position which was before the trial judge, there is now evidence to link the respondent with acts of violence.

 

Ligature X107
[74]      Again, it was only the use of Crimelite which enabled sampling to be directed at the areas tested, a matter of some importance standing how small the areas are.  Crimelite photographs showing the small line of material extending across the pinched section could not have been made available at the trial.  The benefits of directed sampling as opposed to investigative intuition can be seen here.  The seminal fraction of area 23, produced by Sperm Elution, could not have been obtained in 2007.

[75]      The opinion of Geraldine Davidson is that there is nothing to support the presence of DNA from a further identifiable common individual.  By contrast, in Dr. Whitaker’s 2004 testing the possibility of additional bands relating to such an individual was a live issue.

[76]      The LCN results available in 2004 could not have provided information regarding activities by which DNA was deposited.  Now, from the location and nature of the results which she has identified, Geraldine Davidson is able to opine that the areas in question were likely to have been held when the tights were being torn, the findings being consistent with the respondent and Hamilton tearing the tights.  This takes the evidence from neutral to being capable of bearing the inference that the DNA was deposited in an act of violence preparatory to applying the tights as a ligature.

 

Ligature X108
[77]      In the case of Hamilton, the use of Crimelite, extended AP testing and Sperm Elution mean that the source of the DNA can be identified as semen.  This could not have been done at the trial.  At that time, the ligature had been subjected to AP testing with a negative result.  The identification of Hamilton as a possible minor contributor to DNA on this item, and the statistical analysis by Prof. Balding could not have been achieved without Minifiler and likeLTD.  This is new evidence which was not, and could not have been, available at the trial.  The areas sampled were at the periphery of areas sampled during the original investigation and would not have been likely to have been identified by chance and investigative intuition, but were discovered during 2012 thanks to the application of the new detection and recovery techniques.

[78]      Dr. Whitaker had offered a statistical evaluation using only the bands which were unique to the respondent, and based on population sampling, whereas the likeLTD technique is considerably more sophisticated and allows a calculation which also takes into account the fact that there are bands present in the profile of the respondent which are not present in the partial profile identified.  The effect of the new evidence is to transform the significance of the findings from neutral to having evidential significance supportive of an inference of violence.

[79]      Again, the significance of any additional bands of DNA detected now requires to be seen in the context of the evidence that there is no evidence across all the testing to suggest the presence of another commonly identifiable individual.

 

Underpants X109
[80]      The evidence relating to this item is new and could not with reasonable diligence have been made available at the trial.  The previous testing in 1977 and 1998 had returned negative results for semen.  The pants were multi-coloured and patterned.  The original strategy in 1977 and 1998 was to target visible stains and activity-related areas such as the gusset.  That was a reasonable approach, given the nature of the tools available, but produced negative results.  Even with the use of Crimelite, the evidence of Geraldine Davidson was that it was difficult to detect the areas in question because of the patterned nature of the garment.  Area 3 was on the upper front and could not have been detected by targeting activity-related areas.

 

Ligature X110
[81]      Crimelite was required to identify the fluorescing area, and Sperm Elution was used to separate out the seminal fraction of area 50.  The use of Minifiler was necessary to produce the mixed partial profile and likeLTD was required to provide the statistical analysis.  Only the use of Crimelite to identify the void between the two corresponding areas of fluorescence enabled the scientists to suggest that the fluorescing material had been deposited when the item was ruffled up for use as a ligature.  The absence of DNA attributable to Hamilton in the void reinforces the view that his DNA was deposited in the item when it was ruffled up for use as a ligature.  Scott was identified as the major contributor to the partial mixed profile from two contributors found on this area, and had it been sampled during the original investigation it would have been attributed to her as the wearer.  It was only by the use of Crimelite that the significance of these areas could be identified, thus leading to the sampling, the identification of DNA and the conclusion – which even Prof. De Knijff conceded was possible – that the DNA was deposited when the tights were being used as a ligature and not when being worn normally.  This is significant evidence which was not and could not with reasonable diligence have been made available at the trial.  The statistical analysis available at the trial, produced a match probability of 1 in 2 of the population for the DNA types matching Hamilton; only likeLTD enabled the statistical analysis that his input was more than 1 billion times more likely.

 

Ligature X141
[82]      The evidence of Geraldine Davidson was that the finding of DNA attributable to Eadie was consistent with Eadie having been in direct contact with this belt, and would provide support for the assertion that the tying of the ligature was when both girls were together or had recently been separated.

 

Prof. De Knijff
[83]      In his first report he had stated that he could see no clearly erroneous conclusions or interpretations in the findings reported by the Davidsons.  In his second report he had changed his mind, but his revised view was based on documents all of which had been provided to him at the time of his first report.  Nevertheless, he agreed with much of the Crown case.  Despite his criticism of activity- related opinions, on seeing the Crimelite photographs (for the first time) he agreed that the interpretation of Geraldine Davidson was a possibility and could be consistent with the DNA on area 46 of X110 being deposited at the time it was being used as a ligature.  He did not take any issue with Mr McDonald’s results and agreed that there was no evidence to support the presence of DNA from any other commonly identifiable individual.

[84]      Originally he was supportive of the Crown’s position that the evidence regarding X141 was supportive of the contention that it had been used as a ligature when the girls were still together or had recently been separated, but his position changed on viewing a recently published paper to which the court was not referred. One can see a pattern of changing opinions on matters of substance.  He had limited information, perhaps limited expertise in certain areas, and himself rarely examines the productions from which the DNA tested by him comes.  Geraldine Davidson explained the value of what she described as a “holistic” approach.  She described her specialism as finding, identifying, recovering and contextualising biological material.  Prof. De Knijff’s expertise is more akin to that of Mr McDonald, who only reports on the DNA sent to him.  Prof. De Knijff didn’t see or examine the production (or the multimedia dvd) and despite knowing he could ask to examine the other experts’ working papers he did not do so.  Where his evidence conflicts with that of Geraldine Davidson the court should prefer her evidence.

 

RESPONDENT
Admissibility of the buccal swabs
[85]      In advancing his submission that the swabs were inadmissible, Mr Duguid recognised that the respondent’s previous convictions meet the criteria for the use of section 19A, that it was clear that the intention was to use that section, that no force was to be used and if he asked for a lawyer that request was to be facilitated.  However, there is a conflict between the statutory authority, which Mr Duguid submitted only allowed samples to be taken for the purpose of adding to the national database, and the reason given to the respondent, which was that the sample was required for an ongoing inquiry.  The provisions of section 19C which provide that a sample taken under section 19A may be used for the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution, relate to the uses to which the samples may be put after they were taken.  They do not mean that the samples may be taken for this purpose.  The respondent was a suspect and should have been cautioned before the sample was taken.  To say that the sample is required in connection with an ongoing police inquiry is not enough to inform a person that he may incriminate himself by agreeing.  In those circumstances the respondent’s consent to the giving of the sample was not an informed consent. The process of taking the sample was akin to that of questioning.  Reference was made to Miller v Smith 2013 SCCR 169.  It can never be informed consent where a person has not been told of the true reason for the taking of the sample. 

[86]      The prerequisite for the use of section 19A is that any earlier sample has been lost or destroyed.  The Crown have failed to prove that by any evidence other than hearsay.  If the sample taken by DS Ritchie was not admissible, the conclusions of the Crown’s forensic scientists were undermined in their entirety.  It was of no moment that the Crown might hereafter be able to take a sample which would be admissible: the scientific examinations could not be repeated.  This court is bound by the normal rules of admissibility of evidence, by virtue of rule 59.4 of the Act of Adjournal which applies to the hearing and determination of an application such as this, and provides in para 9 as follows:

“Where the High Court hears any evidence it shall do so in accordance with the existing law and practice as to the taking of evidence in criminal trials in Scotland”.

 

If the sample was not in an admissible form at the time at which this court heard the evidence that was an end of the matter.  The Crown were precluded from taking a further sample, at common law or otherwise, and asking the scientists to compare it with the sample they used.  It would not avail the Crown that they would be able to obtain a warrant to obtain a sample from the respondent, because that would require a re-reporting of the findings of the scientists and a new double jeopardy application, which is not possible since only one application may be made.  The taking of the sample may be repeatable but the making of an application is not.

[87]      If the court were satisfied that there had been an irregularity in the taking of the sample it was not one which could be excused.  The Crown were at fault in the original trial in failing to lead the evidence in relation to the ligatures.

[88]      Apart from the objection to the buccal swabs, counsel for the respondent advanced a further objection in relation to the evidence concerning the ligatures.  The only admissible evidence related to those findings which had been sent to Prof. Balding and Mr McDonald for statistical analysis.  Evidence which had not been subjected to such an analysis was inadmissible as irrelevant.  In the absence of statistical analysis, they are not results to which any reliance could be attributed.  Geraldine Davidson gave evidence that many of the results she obtained were duplicated, but not all were.

[89]      It was not appropriate to rely on results which are below the criteria normally applied for investigative purposes.  It is not normal practice to include or report on samples which cannot be subjected to statistical evaluation.  When Dr. Whitaker reported in 2004, the only samples he reported on for the purposes of giving evidence were the four which could be given such an evaluation.  Susan Ure, a Forensic Scientist with the Scottish Police Authority, gave evidence that she would not normally include in her report a result which could be given neither a match probability nor a likelihood ratio.  This is a matter bearing on the admissibility of the evidence, not simply its weight.  This is evidence which cannot be interpreted by any scientist with any accuracy.  For example, none of the evidence relied upon to suggest contact between the respondent and the ligature X110 or X141 has been statistically evaluated.  In 2007, the Crown had available from Dr. Whitaker evidence of a statistical occurrence of 1 in 2 of the population regarding the band matching the respondent identified on X110, so it is even arguable that the case in this respect was stronger in 2007.

 

Double Jeopardy Act 2011
[90]      The only evidence which could be led at any subsequent trial was the evidence led at the original trial and the new evidence upon which authority to bring the new prosecution was based.  It would not be open to the Crown to lead any other evidence, either evidence available but not led at the trial, or other new evidence which was not subjected to the scrutiny of the court in this application.  It is not open to the Crown to lead evidence which, if included in the application, would have been rejected by the court as not constituting new evidence.  Such a situation is what the Scottish Law Commission were trying to guard against when they concluded (Scottish Law Commission, report on Double Jeopardy (no. 218) paragraph 5.15) that:

“For the purpose of a new evidence exception, evidence should be regarded as ‘new’ only if it was not, and could not with the exercise of reasonable diligence have been, available at the original trial.”

 

[91]      The SLC had not discussed what evidence might competently be led at any trial which followed a successful application under the Act.  Section 6(9) of the Act, which provides that in a new prosecution it is competent for either party to lead evidence which it was competent for that party to lead in the earlier proceedings, is not designed to enable evidence available but not led in those proceedings to be led: it is to ensure that any evidence led in the original proceedings may still be led in the subsequent proceedings, even if changes in the law have rendered the evidence inadmissible.  For that reason, the Crown require to give notice of any such evidence, in terms of section 6(10).

[92]      The evidence laid before the court is not new evidence.  It is evidence of exactly the same type as evidence which was available but not led at the original trial, namely that of an expert interpreting stains on clothing.  They may be different stains but they are on substantially the same articles of clothing.  The discovery of stains has been advanced by science, but it is the same expertise which is being applied.  For example, the statistical results relating to stains E1 and E3 on the brassiere (X108) are now more exact, and one can acknowledge that a change from a statistic of 1 in 13 to 1 in a billion results in evidence which is more persuasive, but it can’t really be said to be either new or to strengthen the case.  The evidence in relation to the underpants (X109) can’t be said to strengthen the case, because there was already evidence from other sources capable of establishing sexual activity between Scott and both the respondent and Hamilton.

[93]      The “case” for the purposes of section 4(7)(a) of the Act cannot mean simply the evidence which was presented at the trial.  The proper interpretation was that “the case” included evidence which was available but not led at the original trial.  In considering whether the case against the person is “strengthened substantially” by the new evidence, the court requires to consider all the evidence which was available at the time of the trial, not simply the evidence presented to the court.  That includes the evidence of Dr. Whitaker which the Crown could have led to show a connection between the respondent and the ligatures.  This, in relation to E3 with a statistical match probability of 1 in 390, was described as providing moderately strong support for an association between the respondent and the item in question.  It is for the Crown to explain why they did not lead evidence which was available, but their explanations are not tenable.  The evidence might have been low template, low probability evidence, but the assessment of its value would have been a matter for the jury.  The only evidence which they might have led from Dr. Whitaker related to the 4 instances where all the DNA could be accounted for by the four individuals from whom they had comparison samples, none of which showed any additional bands.  The fact that accreditation of LCN testing did not take place until 2009 is not relevant, since it is a matter of agreement that evidence regarding such testing has been accepted in many countries.

[94]      The exercise which Geraldine Davidson carried out and which led her to conclude that there was no evidence of DNA from another common individual could conceivably have been carried out by Dr. Whitaker in 2007.  Crimelite has enabled certain areas of staining to be identified, but untying all the knots and sampling the areas thus revealed is an exercise which could have been carried out in 2007.  The technique of Sperm Elution has advanced the process of separating a seminal fraction from a cellular fraction of a stain, but there was a technique which could do so in 2007.  The Crown should not succeed in this application just because they have applied more money and care to the exercise than they did the first time.  It ought to have been obvious in 2007 that the stain on the coat (X140) was not a drainage stain, because the vaginal swab from Scott showed Hamilton as the major contributor, suggesting that the stain on the coat which was attributed to the respondent was not a drainage stain.  At the original trial, Lester Knibb gave evidence that he had identified semen on the belt (X141), which finding should have led to a closer examination of that article. Further testing might have been able to establish a link between the source of that semen and the ligature.

 

Prejudicial Publicity
[95]      A significant feature is the amount of prejudicial publicity regarding the respondent.  Acknowledging that the worst material was published in 2008, nevertheless much of it would still be available on websites.  This case has a certain notoriety and potential jurors are likely to have read material about the trial.  Listening to evidence during the trial is likely to jog their memories of information which they have previously read.  This was a case which brought a law officer to Parliament to explain the Crown position, resulting in a public statement by the Lord Advocate, a change in the law, and this application.  That is exceptional, and takes this case well beyond the usual pre trial publicity cases. 

[96]      In the course of argument, reference was also made to Brown v Glen 1998 JC 4; Wilson v HM Advocate 2009 JC 336; Fraser v HM Advocate 2011 SC (UKSC) 113; Radchikov v Russia ECtHR, 24 May 2007 (no 65582/01); HM Advocate v Rudling 2010 SCCR 155; Montgomery 2001 SC (PC), Lord Hope at 30C; R v Dobson [2011] EWCA 1255.

 

Discussion

The Double Jeopardy (Scotland) Act 2011
[97]      Section 4(3) of the 2011 Act sets out the conditions which must be satisfied to enable a person who has been acquitted of an offence to be charged with and prosecuted anew for the same offence.  These are (a) that there is new evidence that the person committed the offence; and (b) that the High Court of Justiciary has set aside the acquittal.  The legislation does not define what is meant by “new” evidence, other than to provide that evidence which was not admissible at the earlier trial but which has since become admissible, does not constitute new evidence.  In our opinion, “new” evidence within the meaning of the section simply means evidence which was not adduced in the original proceedings.  It is instructive to note that the court may set aside an acquittal on the basis of new evidence only if the conditions in section 4(7) are satisfied.  One of these is that the new evidence “was not available and could not with reasonable diligence have been made available at the original trial”.  This condition would not be required were the meaning of “new” evidence in section 4(3) restricted to evidence which has only emerged since the original trial.  Such an interpretation would render meaningless the condition in section 4(7)(b).  The requirement that the court must be satisfied that the evidence was not or could not with reasonable diligence have been made available at the trial is a safeguard against the concern, expressed by counsel for the respondent, and addressed by the Scottish Law Commission, that evidence which was, or could with reasonable diligence have been made, available at the original trial, but was not led, for tactical or other reasons, should not be sufficient to enable an acquittal to be set aside.  Such evidence may be “new” for the purposes of section 4(3) but it could not meet the demands of section 4(7)(b), and thus could never be the basis upon which an acquittal could be set aside.  In the equivalent English legislation on this matter, the question of whether the evidence was available or could with reasonable diligence have been made available at the trial is only a factor to be taken into account in deciding whether it is in the interests of justice that the acquittal be set aside.  There is no requirement that the reasonable diligence test be met before an acquittal may be set aside.  The Scottish legislation does impose such a requirement, by the combination of section 4(3) and section 4(7)(b).  The combined effect of these subsections is that an acquittal may only be overturned where the evidence relied upon in the application is both “new” and was not, or could not with reasonable diligence have been made, available at the original trial.

[98]      In considering whether the new evidence meets this latter test, the court requires to take into account the nature, extent and effect of any evidence available at the trial but not led, and consider whether, with reasonable diligence, the evidence now relied upon could equally have been made available at the trial.

[99]      Of the remaining conditions which require to be satisfied for the purpose of section 4(7), the first is “that the case against the person is strengthened substantially by the new evidence” (s 4(7)(a)).  The use of the word “case” is relatively unusual in our procedure and in legislation.  The most common occurrence is in the phrase “no case to answer”.  In that context the “case” clearly means the evidence led at the trial.  It was submitted on behalf of the respondent that the “case” meant not only the evidence led at the trial but the evidence which was available to the Crown but which was not led, and that one must have regard to both of these matters in considering whether the new evidence has a strengthening effect.  In our view, however, the “case” for the purpose of section 4(7)(a) must mean the case upon which the person was acquitted.  In other words it involves consideration only of the evidence led at the trial, and the legitimate inferences which may be drawn from it.  The question is whether the “case”, in the form of the evidence led against the accused at the original trial, may be considered to be strengthened substantially by the addition of the new evidence.  This interpretation of the “case” is consistent with the condition contained in ss 4(7)(c), namely that the court must be satisfied that on the new evidence and the evidence which was led at the trial, it is highly likely that a reasonable jury, properly instructed, would have convicted the person of the original, or a relevant, offence.  That condition focuses on the combination of the evidence led at the original trial and the new evidence: apart from its bearing on the reasonable diligence test, there is no room for consideration at this point of evidence which was available but which was not led.  The court requires to have regard to what it considers to be the evidential and potentially persuasive effect of the new evidence in combination with the evidence led at the trial.

[100]    The court requires to be satisfied that the case is strengthened substantially by the new evidence.  This requires the court to be satisfied that the new evidence has more than a trivial or marginal effect on the strength of the case.  Its strengthening effect must be more than de minimis, rather it must add weight or substance to the case against the individual.  In general, the question of whether a case is strengthened substantially may also require consideration of the evidential and persuasive effect of both the new evidence, and, insofar as such an exercise can be carried out by a court which did not hear that evidence, the evidence which was led at the original trial.  The unusual aspect of this case is that it failed on the basis of sufficiency.  The acquittal was not the result of the verdict of a jury reached on an assessment of the quality and strength of the evidence, but on the basis of a no case to answer submission.

[101]   The decision of the judge at the original trial to uphold a submission of no case to answer is not a decision which is open for reconsideration.  The Lord Advocate submitted, without contradiction, that this court requires to proceed on the assumption that that decision was correct in law.  This is not an appeal, and it is not part of our function in terms of section 4 of the 2011 Act to review the original acquittal.  We have not heard any submissions directed to whether that decision was right or wrong in law.

[102]    The acquittal proceeded on the basis that there was not a sufficiency of evidence, and we must proceed on the basis that the decision was correct. In this case, if we were satisfied that the result of the new evidence, with that led at the trial, is that there is now a sufficiency where it was decided that there was none previously, this would meet the test for substantial strengthening of the case.  But it would not be enough for an application to be granted, because the court would still require to consider the likely effect of such evidence on a jury.  As noted, this must involve considerations of the evidential and persuasive effect of the evidence.  However, what a jury would have been likely to make of the original evidence in isolation had they been given the opportunity, is not something we require to consider

[103]    The final condition which requires to be satisfied before the court could set aside an acquittal is that it is in the interests of justice to do so.  The factors which arise for consideration under this heading would include the fact of the acquittal, the effect any publicity attendant thereon might have on a subsequent trial, the importance of the rule against double jeopardy, the importance of finality, the stress which might be caused to an accused, to witnesses, to victims or their families, the seriousness of the crime(s), the nature and strengthening effect of the new evidence and the conduct of the Crown, both at the time of the original trial and since.

[104]    The submission for the respondent was that once the court decides that there is new evidence in respect of which all the conditions of section 4(7) are satisfied and that an acquittal ought to be set aside, the Crown, at any subsequent trial, is restricted to leading only the evidence which was led at the original trial and the evidence which has met the conditions of section 4(7).  We do not agree.  The safeguards in section 4(7) are designed to ensure that an acquittal is only set aside when there is new evidence of a compelling nature which points to the guilt of an accused.  Evidence which was available to the Crown but not led can never found a basis for setting aside an acquittal, but it does not follow that the Crown cannot then lead such evidence at any subsequent trial.  As long as the court is satisfied that there is otherwise new evidence, which meets the statutory tests, it may set aside the acquittal.  The effect of that is that the court would grant authority to the Crown to “bring a new prosecution” (s 4(3)(ii)).  That phrase, along with the phrase that an accused in such a case may be “prosecuted anew” (s 4(1)(b)) tend to support the suggestion that at a subsequent trial any available, competent evidence may be led.  Section 6(9), which provides that:

“In proceedings in a new prosecution it is competent for either party to lead evidence which it was competent for that party to lead in the proceedings on the original indictment or complaint (the ‘earlier proceedings’)”

 

would be consistent with that also.  Equally, although evidence which was not admissible at the time of the original trial but has since become so cannot be the basis for the granting of an application, if there is otherwise a basis for the granting of the application there is no reason why that evidence could not be led at any new trial, provided it remains admissible at the time of the subsequent trial.

 

Admissibility of the buccal swabs
[105]    Counsel for the respondent objected to the admissibility of the buccal swabs, and submitted that unless the Crown could lead, in the course of this application, evidence which established before this court the admissibility, at the time of the application, of the evidence of the taking of the swabs, the application could not be granted.  This submission appears to be drawn from rule 59.4(9) of the Act of Adjournal (see para 96 above).  That provision is a procedural one, which ensures that in the event of the court hearing evidence, it should do so in the normal way, with oral evidence, witnesses on oath, examination and cross examination, and so on.  But there are several reasons for concluding that it does not have the meaning ascribed to it by counsel for the respondent.  First, this court is not required to adjudicate upon the evidence, in the sense that a jury will be called upon to do. We require to be satisfied that the evidence is new, and that it meets the statutory tests.  That involves an evaluation of the likely effect such evidence will have on a jury, but it does not require any adjudication of fact by this court.  If evidence is inadmissible it cannot have any effect on a jury, so to that extent it makes sense for this court to be satisfied that when ultimately led before the jury it can be led in an admissible manner, but that need not dictate the manner in which the evidence is placed before us.  Secondly, this court is not obliged to hear evidence.  Clearly, it will often be the case that evidence will be led, but that does not necessarily follow.  In a subsequent confession case, for example, the circumstances of the admission may be so clear that it isn’t challenged, the evidence led at the trial may be agreed, and the focus may be on the interests of justice test.  Thirdly, the rule also envisages that this court may either remit to a fit person to enquire and report upon any matter affecting the application, or appoint a person with expert knowledge to act as assessor.  Such provisions do not accord with a requirement for a rigid adherence to the rules anent admissibility in those cases in which the court does proceed to hear evidence.

[106]    It is abundantly clear that any reference by the relevant witnesses to section 19 of the 1995 Act was an error, and that all concerned understood themselves to be proceeding, and did proceed, under section 19A.  There is no basis for the submission for the respondent that authority to take a sample under section 19A is restricted to the purpose of adding it to the database.  Section 19C2(a) provides that samples taken under section 19A can be used for the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution.  It is not disputed that the respondent is someone to whom section 19A applies, and there was hearsay evidence before us that the existing sample had been destroyed in previous testing.  In our view this court is entitled to proceed on the basis that the Crown would be able to establish that the prior sample has been tested to destruction, and that in any event one way or another the Crown would be able to prove that the upgraded DNA profile which they have attributed to the respondent is indeed his DNA profile.

[107]    In any event, it is also clear that the respondent voluntarily agreed to provide the sample, interrupting the police officers in the course of their explanations to confirm that he was content to provide it.  It was suggested that his consent could not be informed unless he had been given detailed information as to the precise purpose for which the sample was sought.  An attempt was made to suggest that he had been “misled” into thinking that the provision of the sample would not incriminate him, based on the fact that DS Ritchie had made an entry in his notebook, regarding the taking of the swabs which bore the words “not incriminating”.  DS Ritchie could not say why he had recorded that note, but there was absolutely no evidence to suggest that the respondent was given any information that the sample was being taken for a non-incriminatory purpose or that by giving it he would not be providing real evidence potentially against himself.  The information that it was for an on-going police investigation would lead to the opposite conclusion.  It is clear that he agreed to supply the sample, that he knew he did not require to do so and that he knew it was related to a police investigation.  In our view, it is clear that he gave his informed consent to the taking of a sample.  In any event, there would appear to be no reason why the Crown could not resolve the matter by obtaining a new sample.  The existence of the present sample is only necessary to the making of the application because it is the basis upon which the scientists obtained the profile which was used to make a comparison with their findings.  There is no reason why they should not be able to do a further comparison if necessary to enable them to give at trial the evidence which Geraldine Davidson gave before us.

 

Observations on the evidence

[108]    As already noted, when examination of a stain reveals a mixed profile, scientists may be able to allocate components of the profile to specific individuals in the form of a major/minor contribution.  The process of attribution may be assisted by the nature of the material being tested.  For example, for a vaginal swab there will be a high expectation that there will be present DNA from the individual from whom the sample was taken.  By subtracting that person’s DNA from any resulting mixed profile, the scientists can reveal components which must relate to any foreign DNA.  The same process can apply to garments.  There is again a high expectation that DNA will transfer from wearer to garment.  For example, in relation to the control sample from Scott’s coat (X140), 20I, it was assumed that part of the profile obtained would be attributable to Scott as the owner of the coat, so the bands present in her DNA were subtracted from the profile, revealing the remaining bands, which were found to be present in the profile of the respondent.

[109]    Sometimes some of the removed bands reflect bands which are present not only in the DNA of the wearer, as in the previous garment, but also in the DNA of the minor contributor to the mixed profile.  These common bands have the effect of “masking” the presence of the DNA of the minor contributor.  It is known that there are some bands which are shared amongst certain of those from whom samples were available in the present case (see for example paragraph 12 above).

[110]    In such situations, the traditional approach of scientists at the time of the trial was to attribute to the victim or owner of a garment all the bands applicable to that person, before considering only the remaining bands.  This is a process known as “conditioning”.  Once a part of the profile has been attributed to a specific individual, such as the wearer, that is said to “condition” the mixture.  At the time when Dr. Whitaker was examining samples relating to this case, he commenced by attributing to either Eadie or Scott any bands of DNA which were present in their profile, and “removed” them from the mixture.  Since a strong profile of Hamilton had been identified on the vaginal swabs, remaining bands after Scott and Eadie were accounted for, were attributed to him.  Only remaining bands, which were not attributable to any of these three individuals were then compared with the profile of the respondent, even though some of the removed bands were reflected in his profile. Any shared bands were not taken into account.

[111]    Dr. Whitaker explained that DNA could be transferred not only from a wearer of an item but from touching or handling of an item, and he referred to experiments which his unit had carried out in this regard. In cross examination, Dr. Whitaker accepted that primary contact generally results in a greater level of DNA remaining on an item than secondary transfer.  He explained that the pattern and strength of DNA found will be taken into account in making an assessment of how the DNA might have been transferred to the item.  For example, in relation to the ligatures taken from Eadie’s body, the DNA bands observed in her reference profile were strongly represented in the results.  Although her DNA might be expected on these items since they have been recovered from her deceased person, the scientific opinion was that a more likely explanation was that this part of the profile had been transferred to the items tested through Eadie wearing them, and that the ligatures recovered from her person were actually items of her own clothing.

[112]    One feature of this case was the identification in several results of a band or bands of DNA which could not be accounted for by any of the four control samples.  Although Dr. Whitaker had reported for court use only the results from B1, B4, D2, E1 and E3 as noted in paras 28 and 29 above, he had obtained results in relation to some of the other samples.  In particular he reported several results in which a full or partial mixed profile included either Eadie or Scott, but also additional bands represented in the profile of Hamilton, the respondent and “other(s)”.  Although the way the results were reported referred to bands which were represented in the DNA of “other(s)”, this essentially meant that there were in these results bands which could not be accounted for by any of the four samples available.  Dr. Whitaker did not report these for court use because with complex results such as these, it had not been possible to attribute a statistical probability of the occurrence of these results.  A statistical probability had been given for the results actually reported (except D2 which seems to have been missed) where no additional bands had been detected.  The statistical evaluation which he had provided for those results was based on population sample and the estimated prevalence of the existence of the relevant bands within the population.  He considered that it was not helpful scientifically to refer to a result which has not been evaluated as without evaluation one could not assess the significance or strength of the results.  He was aware that when the Davidsons came to carry out their testing in 2012 they took a different approach.  Such an approach was possible when there was available software such as likeLTD which enabled a more sophisticated approach, and allowed complex results to be interpreted.  likeLTD software enables all the bands and all combination of bands to be taken into account.  Accordingly, any shared bands could be taken into account by virtue of the complex analysis which could be carried out using the software, which considered all the possible DNA combinations which could give rise to a result.

[113]    Where additional bands were identified, not attributable to any of the four individuals from whom samples were available, several factors required to be considered.  One is the possibility of “drop in” as referred to above.  The presence of additional bands cannot be attributed to the process of degradation.  Nevertheless, the age of the sample is relevant, since there is always an issue with samples of the age of the samples in this case, which have been previously examined on numerous occasions, that DNA from “unknown” sources might be detected because the necessary working practices to avoid contamination were not in place or considered at the time.  The more often the samples are tested, or transferred from one place to another, the greater the opportunity for transfer of external DNA to the sample.  The relevance of the results marked “other(s)” required careful consideration in the context of this case given the sensitivity of the techniques employed and the possibility that the DNA is unconnected with the offence under consideration.  The evidence of Dr. Whitaker was that if one were unable to exclude by elimination tests DNA from Scenes of Crime Officers, scientists and the like, the possibility remained of the results indicating the presence of an unknown individual, and this would have been his evidence at the trial.

[114]    Prof. Balding developed the likeLTD software to enable the statistical evaluation of complex, low template DNA results.  Prior to developing the software he had been critical of the way in which such reports were typically prepared for court use.  In particular, he was critical of the process of conditioning, referred to above.  An approach based on conditioning depends upon only a partial use of the evidence, whereas likeLTD allows for a systematic evaluation of all the evidence.  It allows for the effect of masking, drop out, drop in, differing amounts of DNA being contributed by the donors to a mixed profile, degradation, and allows for the possibility of an unknown presence.

[115]    Where conditioning is adopted, the term “match probability” refers to the probability, based on the frequency of occurrence within the general population of certain bands of DNA, on a complete match for the DNA coming from someone other than the accused whose DNA is a match.  Match probability is not adopted in the use of likeLTD which allows for a likelihood ratio to be calculated.  Shared bands are taken into account, but where, for example, only 4 bands attributable to an individual are identified, the statistical analysis addressed the question of how likely it is that these bands came from that individual, despite the fact that all other bands in his profile are not present.

[116]    As referred to in paragraph [35], Crimelite is both a recovery tool and an interpretative tool.  Identification of where on a garment a stain is found may assist in identifying how it got there.  In particular, the use of Crimlite enables scientists to examine a garment or item as a whole, by examining the nature and distribution of any staining across the whole of the item, rather than simply in isolated sections.  This, together with the approach, driven by the availability of likeLTD, that conditioning does not allow the whole of the evidence available to be considered, led to the Davidsons approaching their extensive testing in this case with what they described as a holistic approach which involved consideration not only of individual results, but of these results taken together.  It is perhaps best exemplified by this extract from their report:

“In this case we have considered the resulting DNA profiles with respect to whether any of the four individuals involved in the case could contribute and whether the DNA profile obtained meets the criteria for us to statistically evaluate the results taking into account the number of components present and their respective heights. Many of the DNA profiles indicated low levels of DNA, mixtures of DNA from more than one individual and/or degradation. This resulted in DNA profiles that were not suitable for statistical evaluation using our current standard methods.

A common approach in attempting to reduce the uncertainty in profile calling arising from these effects of low level DNA is to perform repeat runs from the same sample.  The duplication of a component of a suitable height is deemed appropriate criteria for calling that component a true DNA component.  This duplication is used to form a consensus profile.  Having determined this then the results may be compared to the DNA profile of a known individual with a view to including or excluding them as a possible source of the DNA.  When considering complex DNA mixtures, taking into account the effects of masking it might not be possible to determine the full complement of results from any one individual or indeed the number of likely contributors to the mixture.

We have, in this case, used all the information present in the DNA profiles even when it is not duplicated and where it is below the criteria normally applied for statistical evaluation for investigative purposes.  This is to evaluate if one of the individuals in the case could contribute DNA to the profiles, albeit at a low or partial level to allow us to identify any DNA that is unaccounted for which could identify any other potential persons of interest.  Any interpretation of the findings is taken in context with the location, the method of sampling, the case circumstances and the presence of any known body fluids present in the area sampled.

The sensitivity of current DNA profiling techniques means that it is not uncommon to detect DNA profiles in addition to the body fluid or cellular material targeted in a case.  This can be background DNA from the wearer themselves or from other sources of DNA with which they have had contact with either directly or indirectly In cases such as this when the items have been examined on numerous occasions and at a time when the standard working practices did not deal with the detection of DNA then this has to be considered when interpreting any results.”

 

[117]    In the course of their testing, the Davidsons, like Dr. Whitaker, had also identified bands of DNA which could not be attributed to any of the four individuals under consideration.  However, they reached the conclusion, unavailable to Dr. Whitaker, that there was nothing in any of the results which was capable of supporting an inference of the presence of any additional, unidentified common individual.  It was suggested to them that they had taken an unorthodox approach in that they had not duplicated the results on which they relied.  Geraldine Davidson disputed this, saying that there was duplication of certain results but not all.  Most of the samples in all the ligatures had been duplicated, for example.  Where the same bands were seen occurring again and again it tended to suggest the presence of the same individual, and the evidence of Geraldine Davidson regarding the results relating to the respondent was that effectively there was a pattern apparent in the testing which justified her conclusions regarding the presence of his DNA.  As with Prof. Balding’s approach, it was necessary to look, not just at the unique components, but the shared components.  By contrast, in relation to the finding of bands of DNA which could not be attributed to any of the four individuals under consideration, Geraldine Davidson explained that there was a difference between recurring results which indicate the presence of DNA from a specific, possibly unknown, individual, and results which indicate non-consistent components being picked up on a one-off basis and differing from result to result.  The additional bands in the present case fell into the latter category.  There was nothing in the extensive testing which was carried out which suggested the presence of a profile from any other common individual.  The additional individual components identified were not seen consistently or repeatedly, and in the context of low-level degraded DNA samples, she was confident in opining that any added components were likely to be the result of drop in.  There were not in any event many such components, and the Davidsons, on the evidence of Geraldine Davidson, examined them for “repeatability” to see whether they might be indicative of a further individual.  However, their conclusion was that the additional components did not relate to any individual’s DNA but to separate drop in events.  Mr Duguid objected to the admissibility of evidence based on the Davidsons’ approach in all circumstances where their findings were not backed up by statistical analysis.  In our view, the objection is truly one of weight rather than admissibility.  This is a jury question, but insofar as it is relevant for us to comment on the matter, the evidence which Geraldine Davidson gave about duplication or repeatability of results, together with the extremely extensive testing carried out, meticulously presented in an illustrative manner in DVD form, together with the fact that Prof. De Knijff agreed with their conclusions regarding the absence of any other commonly identifiable individual, is such that in our view a jury would be entitled to consider it to be valid and persuasive

[118]    The fact that the two girls had been together socially on the night of their deaths gave rise to the possibility of transfer of DNA between them, with the possibility thereafter of secondary onward transfer from Eadie of Scott’s DNA and vice versa.  The time frame during which secondary transfer might be expected to remain detectable varies, and much will depend on the nature of the original, and subsequent transfer, and the activity with which either was associated.  Given that the girls spent time together it was not unreasonable to expect that the DNA of one might be found on the clothing of the other, and vice versa, and that indeed was something which was identified during testing.  However, the evidence suggested that it would be unusual to find that the predominant DNA on the clothing of one was the DNA of the other.  The only occurrence of such an instance was the finding of Eadie’s DNA on the belt (X141) used to tie Scott’s hands, which led Geraldine Davidson to the conclusion that the transfer of DNA had taken place when the girls were still together or shortly after they had been separated.

[119]    Evidence was led on behalf of the respondent from Prof. De Knijff, professor of population genetics at Leyden.  90% of his work involved examination of bullets and cartridges with a view to recovering DNA from them; the remaining 10% involved examining DNA which had already been isolated from dental material, bones or drowned persons.  He was not otherwise in the habit of examining label productions.  In his evidence he had two central criticisms of the approach adopted by the Davidsons: first, it was not apparent to him from their report whether any of their results were duplicated or replicated; and secondly, he did not consider that they had enough information to enable them to proceed from source level conclusions – who might be responsible for a deposit of DNA; to activity based ones – how did it get there.  He would not report a conclusion based on the finding of a single unique component unless it was a feature which was repeatedly reproduced. The repetition of results may be treated as confirmatory.  He could not tell from the report whether results had been replicated.

[120]    He had prepared two reports.  In the first he had noted “I can see no clearly erroneous conclusions and interpretations”.  He agreed that the finding of Eadie’s DNA on the ligature around Scott’s wrists supported the assertion that the two were together or had recently been separated when Scott’s wrists were bound, adding “and I cannot give an alternative explanation”.  By the time he gave evidence he had changed his mind about these matters.  However, he continued to agree with the conclusions of the Davidsons that there was no evidence to support the presence of DNA from any other common individual, and conceded that their conclusions regarding the void area on the belt (X141) were possibly valid.

[121]    Where there were differences in the evidence of Geraldine Davidson and Prof. De Knijff, we preferred the evidence of Geraldine Davidson, for several reasons.  In the first place, some of the criticisms of Prof. De Knijff were based on an understanding that it was usual for forensic scientists in Scotland to report in exactly the same way as it is for scientists in Holland.  This was not correct, for example it is apparently the practice for scientists in Holland always to suggest alternative scenarios, even in the absence of any such suggestion from the defence.  It also appears to be the practice to contain within the body of the report some of what for a better word we will call “workings”, whereas in Scotland it is common for these not to be in the report but to be available for examination by defence experts on request.  He did know that he could have asked for the Davidsons’ file but did not do so. Hence he made the incorrect assumption that none of the results reported by the Davidsons had been replicated.  Furthermore, it is clear that Prof. De Knijff has limited experience in examining material of the kind under consideration in this case.  He is not familiar with the use of Crimelite, either as a recovery or as an interpretative tool.  He has not used the technique of Sperm Elution, although he understood it to be a subtle technique and a major improvement on what went before.  He has no expertise in the use of LCN DNA techniques.  His criticisms of the Davidsons, and in particular their activity based conclusions, were reached without (a) examining the items in question; (b) examining the file in which their workings were contained; or (c) looking at the visual representation of their results, which started by showing what was revealed by Crimelite and followed through each stage of their examinations, and was available in a step-by-step representation on DVD.

[122]    It was difficult to understand why Prof. De Knijff’s position had changed between his first report and his second report, since each report was based on exactly the same material.  No additional material had been supplied to him between the preparation of his first and second reports.  He suggested that there might have been a time pressure involved and that his second report was the result of greater reflection on the issue.  Such time pressure might account for the unfortunate fact of there being several errors in his report.  As to the conclusion regarding secondary transfer of Eadie’s DNA to the belt used to tie Scott’s wrists, he would have agreed entirely with this conclusion until about 2 weeks prior to the hearing when he read a review article which he considered shed doubt on those results.  Unfortunately, this article was not made available and was not put to the Geraldine Davidson for her comments.

[123]    We should record that we were unable to reach any conclusion one way or the other as to the reason that all the evidence available at the trial was not led.  The Lord Advocate advanced certain explanations based on an argument that the evidence was low-copy, low probability evidence which was cellular in nature.  Mr Duguid suggested that the Crown was at fault in not leading the evidence, and referred to certain statements made after the trial by the then Lord Advocate which may not be entirely consistent with the position now adopted by the Crown.  However, we are unable to comment on why that evidence was not led.  We did not hear evidence from the Advocate Depute who conducted the trial so we have no insight into his thought process at the time, or the reasons which led him to decide not to lead the evidence.  We cannot say how far the reasons advanced by the Lord Advocate, or any statements made by his predecessor, in fact represented the thinking of the Advocate Depute during the trial.  Accordingly, we restrict ourselves to commenting, elsewhere in this opinion, on the possible effect of that evidence and any significance which its availability may have to the statutory test which we required to apply.

 

Application of the statutory tests

[124]    Clearly the evidence is new in the sense of not having been led at the original trial.  We have also reached the conclusion that the evidence which the Crown relies upon in this application is evidence which was not, and could not with reasonable diligence, have been made available at the trial.  In reaching that conclusion we have taken account of the evidence which was available at the trial but which was not led, and have considered whether that evidence was such that it should, with reasonable diligence, have led to the evidence now relied upon being made available at the trial.  We are satisfied that it could not have been.  The evidence which is now relied upon is evidence which would enable a jury to draw conclusions about the respondent’s involvement in acts of violence against these two girls in a way which the evidence available at the trial would not have allowed.

[125]    The submissions of counsel which found favour with the trial judge were that there was no evidence linking the respondent with acts of violence against the girls, no evidence from which a temporal connection could be inferred between the sexual activity and the murders, no evidence that the two men were together when anything untoward happened to the two girls, and no evidence that Eadie had been in the respondent’s van.  It was submitted that the notice lodged for the respondent stating that the sexual contact had been consensual had not been rebutted.  The trial judge described these submissions as “sound”.  He considered that in the context of there having been agreed sexual activity between the respondent and the girls at some time during the time frame from when they were last seen to the discovery of the bodies, the evidence was “neutral” as to whether or not he was involved in violence against the girls or present when such violence took place.

[126]    The evidence of Dr. Whitaker would have provided a possible link between the respondent and the tights and brassiere used on Eadie and with the tights used on Scott.  Leaving aside the low match probability of the results, Dr. Whitaker gave evidence before us that at the trial he would have been able to say that the evidence supported the conclusion that the respondent had been in contact with these items but that he could not have said how any of his DNA might have been deposited there.  The material was cellular and could have been the result of handling the items during consensual sexual activity.  He would have been unable to give a time frame for the transfer of any DNA of the respondent onto these items.  In addition, his evidence would have been that the presence of additional bands of DNA in several of the results analysed by him left open the possibility of the presence of DNA from a further unidentified individual.

[127]    It is clear from the evidence before us that the evidence which might reasonably have been made available at the trial would not have gone beyond this.  On that evidence it may have been difficult for a jury to draw the conclusion beyond reasonable doubt that the presence of DNA attributable to the respondent on undergarments had not been deposited during consensual sexual activity.  The evidence is likely to have remained inconclusive.

[128]    The evidence now available presents a very different picture.  Not only is there evidence which supports the contention that the respondent handled the items in question, there is evidence from which a jury would be entitled to conclude that both the respondent and Hamilton did so in the course of tearing and tying the items for use as ligatures.  This addresses not only the trial judge’s concern that the evidence was neutral as to any involvement of the respondent in acts of violence, it is also evidence from which the conclusion may be drawn that (a) the respondent participated as actor; and (b) he and Hamilton were together when this was done.  This evidence, and the fact that in some instances it is possible to identify the source of the DNA as semen, provides a temporal link between the sexual activity and the violence, and assists in rebutting any argument that the evidence is equally consistent with consensual sexual activity.  So far as the evidence of statistical analysis is concerned, as counsel for the respondent submitted, a figure of 1 in a billion is considerably more persuasive than a figure of 1 in 2.  However, the strengthening effect of the statistical analysis does not rely on this factor.  The evidence now available from the application of likeLTD is of an entirely different nature from evidence based merely on match probability.  It enables not merely individual DNA types to be considered, but the whole of a person’s DNA, taking into account the fact that types which match the DNA of an individual may be present, but also allowing for the fact that other types within his profile are absent.  The evidence relating to Eadie’s DNA on the belt used as a ligature on Scott, suggesting that the girls were still together, or had only recently been together when this ligature was tied, minimises the effect of any lack of evidence that Eadie had been in the respondent’s vehicle.  The evidence in relation to the void area on the tights (X110) was striking and highly persuasive.  It provides strong evidence in support of the assertion that the DNA was deposited on the item when it was being tied as a ligature.  DNA containing types found in the profile of the respondent was found on both the tights and belt which together formed X110.  That on section 2 of the tights came from the area of the knot.  The finding of the respondent’s DNA in combination with that of Hamilton, in circumstances powerfully suggestive of Hamilton’s DNA having been deposited when the item was being applied as a ligature, is highly significant.  DNA containing types present in the profile of the respondent, found in areas 20 and 23 of X107 is significant because the DNA was recovered from an area where the garment might be expected to have been held in the act of being torn in preparation for use as a ligature.  Again, this DNA was found in combination with that of Hamilton.  The only other DNA on area 20 was consistent with having come from Eadie or Scott.  Moreover, whilst at the time of the trial the possibility that additional bands seen on examination of certain items related to a further, unidentified individual was a live one, the evidence available now is no longer “neutral” in the respects referred to by the trial judge, and provides a sufficiency of evidence against the respondent.  The case against him can thus be said to be substantially strengthened by the new evidence.

[129]    We are also satisfied that on the new evidence and the evidence led at the original trial, it is highly likely that a reasonable jury, properly instructed, would have convicted the respondent of the original offence.  The totality of the evidence supports the contention that the respondent handled ligatures used on both deceased at the time when those items were being used as ligatures, thus strengthening the case against him as actor.  Moreover, the assertion that he acted in concert with Hamilton is also strengthened, since in most instances where DNA which could be accounted for by the respondent is found, it is in combination with DNA which could be accounted for by Hamilton, in circumstances where the degree of testing has enabled the Davidsons to conclude that there is no indication of DNA from any other common individual and that the presence of any additional types of DNA is likely to be the result of drop in.  The evidence in relation to the tights ligature (X110) to some extent may be said to strengthen the case against the respondent as an individual, but its primary significance lies in the way in which it offers extremely strong evidence against Hamilton, thereby strengthening the concert case against the respondent.  The evidence in relation to the belt (X141) suggests that the two girls had not long been separated when that item was put in use as a ligature.  When one puts these factors in the context of evidence which suggests sexual activity between both the respondent and Hamilton and each of the girls; that, in each case, the underpants of the deceased had not been replaced after intercourse, given the lack of any indication of seminal drainage on those garments; that they were both tied up using items of underwear; that it is a reasonable inference that two individuals would have been required to restrain, gag, bind and murder the deceased; that there was evidence of Scott having been in the van belonging to the respondent; that transportation would have been required to deposit them in remote locations; and the general evidence of association between the two men, we are satisfied that the test in section 4(7)(c) has been met.

[130]    It was submitted that the information available to the Crown at the time of the trial was such that more intensive tests should have been carried out at that time, and might have produced results more comparable with the information now available.  In particular, it was suggested that the information available to the Crown in relation to X141 – the belt from Scott’s coat - was such that more should have been done to try to identify the donor of the semen stain identified thereon.  In his examination of 1977, Lester Knibb had identified semen on the belt.  In his evidence he made reference to a stain from the belt having been sent for analysis to Strathclyde Police laboratory and the FSS.  He did not give evidence as to the result, but in a joint report prepared by himself and Ian Hamilton dated November 2005, it is narrated that in 1977 tests were performed on portions of the intimate swabs, the coat and the belt in an effort to identify the source of the semen staining thereon but the results were inconclusive.  In an affidavit lodged as a production in the hearing before us, he referred to confirmation having been received in 1996 that the semen on the belt and the deceased had a common origin.  He did not repeat this during his evidence and was not asked about the matter at all.  Such a contention seems inconsistent with the report prepared by Martin Fairley and Ian Hamilton dated 13 May 1996 in which they report that the staining on the belt was analysed and produced a DNA profile matching that of Scott.  In an affidavit (production 19), Ian Hamilton referred to results showing that the semen on the coat and the intimate swabs had a common origin but that the staining on the belt yielded only DNA of Scott, and indicated that these results were reported verbally to Lester Knibb in the summer of 2005.  In 2001 a sample from the belt was analysed at the FSS but no identifiable profile could be obtained, the result being a complex, mixed profile from an unidentifiable number of people which could not, at that time, yield further information for comparison purposes.  An area of staining from the belt adjacent to the sample referred to in 1996 was sent for analysis in 2004, and like the 1996 sample, yielded a partial profile matching that of Scott.  It seems therefore that attempts were made to identify the source of the seminal staining but were, under the methods then available, not successful.  We do not accept the submission that the Crown might have been expected to carry out further examinations regarding this item, and we do not consider that other results which have now been placed before us are results which might with reasonable diligence have been placed before the court at the trial.  We should note that nowhere else in the evidence was there any reference to the semen found on the deceased and that on the belt as having a common origin, although as noted above, there was evidence of a common origin from semen on the intimate swabs from the deceased and the semen on the coat, and this is what led to the identification of the respondent.  It may be that Mr Knibb was in error in thinking that the common origin related to the belt rather than the coat.

[131]    Without the use of Crimelite it would not have been possible to target the many areas targeted for examination by Geraldine Davidson, and then selected for specialist testing.  It would not have been possible to interpret the results in the way in which Geraldine Davidson has been able to do without the specialist techniques which have become available since the trial.  The conclusions referred to above which advance the case against the respondent in the ways explained would not have been possible without the use of all the specialist techniques which have been developed since the trial, and the evidence upon which the conclusions are based could not with reasonable diligence have been made available at that time.

[132]    As we noted at paragraph [101] above, the question of whether a fair trial can be achieved is a factor to be taken into account in assessing whether it is in the interests of justice that authority be given for a new prosecution.  The argument was that the prejudicial publicity in this case has been such that a fair trial could not be held.  However, as counsel for the respondent himself recognised, much of the publicity in this case is of some antiquity, and is not likely to be at the forefront of the minds of potential jurors and many of them will not have read the material in question.  In a case such as this it is likely that the trial judge would give directions to jurors at the commencement of the case as to their responsibilities in this regard, and to follow that up should it become necessary to do so during the trial.  It is to be presumed that the jurors will follow the directions of the trial judge, and that they will be conscious of their oath to try the case on the basis of the evidence alone, and act accordingly.  Orders have already been made under the Contempt of Court Act, and the possibility remains of such orders being continued, thus limiting the amount of further publicity.  Any memory of the case is likely to be strongest in the area of Edinburgh and East Lothian, but there is no requirement that the trial take place in Edinburgh.  Taking all these factors into account it is not possible to reach the conclusion that the respondent would inevitably be deprived of a fair trial as a result of prior publicity.

[133]    In paragraph [101] above we noted some of the factors which we consider to be relevant to the question whether it is in the interest of justice to grant the application.  We consider that there are safeguards available at any future trial to guard against any risks attendant on the prior publicity attracted by the case.  The fact that there is a rule against double jeopardy is of course important, but the legislation provides for circumstances in which that rule may be departed from.  We have already made clear our views on the nature and strengthening effect of the new evidence.  That evidence is only available because of the new and more sophisticated scientific techniques which have become available since the trial.  It was submitted that the Crown were at fault in not leading the evidence available to them at the time of the earlier trial.  We are unable to reach such a conclusion.  However, for the reason we have given above, had that evidence been led we consider it would have been likely to have remained inconclusive to the respondent’s involvement in acts of violence.  In respect of the bringing of this application, the Crown have acted expeditiously.  The crimes to which the application relates are of the utmost seriousness.  We are satisfied that it is in the interests of justice that we grant this application and authorise a new prosecution.