Scottish High Court of Justiciary Decisons

 

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2014] HCJAC113

XC896/07

Lord Eassie

Lord Menzies

Lord Bracadale

OPINION OF THE COURT

delivered by LORD EASSIE

in the appeal

following a reference from the Scottish Criminal Cases Review Commission

by

THOMAS ROSS YOUNG

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Kerrigan QC;  Latif; Gilchrist;  Drummond Miller LLP (for George Mathers & Co, Aberdeen)

Respondent:  Ogg QC, AD;  Crown Agent

10 October 2014

[1]        At the outset of this opinion we record that, having heard further argument on behalf of the appellant on 29 May 2014 and having made avizandum, the court was informed that the appellant, Mr Young, died on 14 July 2014, prior to the advising of the case.  The death of Mr Young effectively meant that the proceedings thereby came to an end unless they were revived by being taken up by the executor of the deceased appellant, or another person recognised as having a proper interest in further pursuing the appeal, in terms of section 303A of the Criminal Procedure (Scotland) Act 1995. Mr Young died testate.  Under the will which he executed in 2009 he appointed as his executor Mr John A McLeod, solicitor.  In March 2013 Mr Young gave a written instruction to the executor to continue his appeal in terms of that section 303A.  In observance of the wishes of the deceased Mr Young, the executor applied to this court in terms of that section to authorise him to continue the appeal.  On 2 October 2014 the court granted that application and gave the executor that authority.  As was accepted at the hearing on 2 October 2014, the consequence of the granting of the application under section 303A is that the court can now advise on the arguments advanced on 29 May 2014. We therefore give the opinion which but for Mr Young’s death we would have delivered earlier in ordinary course.  

[2]        The now deceased appellant was convicted at a sitting of the High Court of Justiciary in Glasgow on 25 October 1977 of a number of charges in respect of offences committed in the early summer of 1977.  They principally involved crimes of violence, including violent sexual crimes against young women.  They included a charge of murder, two charges of attempted murder, two charges of rape, a charge of assault and robbery, a charge of assault and a charge of theft.  Following a reference from the Scottish Criminal Cases Review Commission the appellant lodged a note of appeal challenging his conviction on the charge of murder, which is charge 11 on the indictment.  It reads:

“(11) Between 10 and 27 June 1977, both dates inclusive, at the service road leading to Inchneuk Farm, Glenboig, or elsewhere in Scotland to the prosecutor unknown, you did assault Frances Barker, 289 Maryhill Road, Glasgow and did compress her throat, tie a ligature around her neck, push a pair of pants into her mouth and did murder her.”

 

[3]        The origins of the appellant’s application to the Commission and the Commission’s reference lie in the review of earlier investigations instigated by the police in the Strathclyde constabulary and the constabulary in Lothian and Borders into six homicides of women which occurred in Scotland in or around 1977.  That review included the murder of Frances Barker, of which the appellant had been found guilty.  In very broad terms the thrust of the review was directed to identifying similarities between the homicides and their attribution to an individual – “X”. 

[4]        The circumstances respecting that review are set out in the earlier opinion of the court delivered in the course of this appeal – [2013] HCJAC 145[1].  For convenience we repeat paragraphs 3 to 7 inclusive:

“
[3]  By letter dated 12 September 2005 Strathclyde Police wrote to the appellant's solicitors explaining that Strathclyde Police and Lothian and Borders Police were currently undertaking "Operation Trinity", a joint investigation into the murders of six women in 1977, including the murder of Frances Barker, and stating that the police, at the request of the procurator fiscal, wished to interview the appellant in the presence of his solicitor about the murder of Frances Barker.  The police interviewed the appellant, in the presence of his solicitor, on 20 September 2005.  As a result of this interview, the appellant formed the view that the police no longer believed that he murdered Frances Barker.  If the safety of the murder conviction was open to question, this called into question the safety of the other convictions, because the appellant was convicted on the basis of the Moorov doctrine.  Accordingly, the appellant made an application to the Scottish Criminal Cases Review Commission for review of his conviction.

 

[4]  In the course of the Commission's consideration of the appellant's application, on 12 March 2007 Crown Office forwarded to the Commission a copy of the report Strathclyde Police had sent to Crown Office in respect of the Operation Trinity investigation, in which it is stated that the police had re-investigated the murders of six young women, including Frances Barker, between 11 June and 2 December 1977, all the women having gone missing following social nights out and whose bodies were subsequently discovered dumped in the open air a substantial distance from where they had been last seen alive.  Reference was made in the report to what were described as ‘unique similarities’ between the murders, and the report expressed the conclusion that the same person(s) were responsible for all murders within a short time frame.  Appended to the Operation Trinity report were three further reports, namely a report by John Clark and Marjorie Black, forensic pathologists of the University of Glasgow dated 16 December 2004 ("the forensic pathology report"); a report by the Behavioural Analysis Unit at the Federal Bureau of Investigation, Quantico, Virginia, USA dated 23 January 2006 ("the BAU report"); and a report in which data relating to all homicides of female victims in Scotland between 1968 and 2004 have been collated, which is undated and unsigned ("the SCOTHOM report").

 

[5]  The hypothesis which underlay the conclusion of the Operation Trinity

investigation was that it may be possible to link crimes to form a series on the basis of perpetrator behavioural similarity, to enable a conclusion to be reached as to the likelihood of the crimes being perpetrated by the same person or persons.  Although in the course of these proceedings this practice was referred to by several names, we propose to refer to it throughout as "Case Linkage Analysis" ("CLA").

 

[6]  Strathclyde Police apparently took the view that CLA might be of assistance to them in the conduct of their Operation Trinity investigations.  The Commission observes in its reference to this court (at paragraphs 117-119) in dealing with the BAU Report:

 

‘117.  On what is page 1 of the Commission's copy of the report (the report is unpaginated), it is stated that Strathclyde Police requested an analysis and an opinion from the FBI on whether 'linkage' between six homicides could be established.  The purpose of the report is set out more fully at page 3, where it is stated:

 

“The purpose of this analysis was to behaviourally assess the overall condition of each crime scene and the dynamics of the offender(s) interaction with that scene (both contact and deposition sites) and the victim in order to determine if a linkage could be made between any of the six homicides”.

 

118. Strathclyde Police provided the FBI with aerial photographs of the crime scene and contact locations; detailed maps of the crime scenes and deposition sites; overall maps identifying the contact and deposition sites for each victim and the relationship of each site to the other sites; photographs of the last seen locations; photographs of the crime scenes, including the bodies; autopsy photographs; detailed photographs of the bindings, the ligatures and the gags used on the victims; photographs of the victims; a map highlighting the dimensions of Scotland in relation to the US and other countries in the UK; a map demonstrating the geographical relationship between Glasgow and Edinburgh; a map highlighting central Scotland and the contact and deposition sites; virtual representations of the bindings, the gags and the ligatures from the front and from the rear; and a photographic summary demonstrating the similarities in the crime scenes, the ligatures used to gag the victims, the ligatures used to bind their wrists and ankles, and the body positions.

 

119.  At pages 10 and 11 of the report, under the heading 'Crime Analysis', it is stated:

 

“Violent crimes scenes always tell a story - a story written by the offender, the victim and the unique circumstances of their interaction.  It is this interaction that makes crime scenes dynamic events that vary in complexity.  One of the fundamental tenants [sic] of crime scene analysis is to identify the multiple forensic and behavioural variables presented at the scene in order to interpret how and why these six women became the victim of homicide....While conducting an analysis of the behaviour manifested at violent crime scenes, it is essential to avoid becoming too focused on any one aspect and ascribing singular importance to it.  It is important to remember that no attempt was made to reconstruct the exact sequence of events.  Instead, it is the totality of the circumstances that is most important in assessing not only what happened but why and how it happened.”’

 

[7]  The Commission considered the various reports which were placed before it, and the appellant's statement to the Commission.  It addressed the test for additional evidence, and concluded that the terms of the Operation Trinity report were likely to have had a material bearing on, or a material part to play in, the jury's determination of the critical question which was put to them by the trial judge, namely "the question which you have to decide is whether you are satisfied beyond reasonable doubt that the accused is the person who murdered her"[i.e. Frances Barker].  The Commission concluded that there may have been a miscarriage of justice and that it was in the interests of justice that the case should be referred to this court.  Accordingly the Commission made a reference to this court in November 2007.”

 

[5]        The issue which the court considered in the hearing which led to the delivery of that opinion was whether a technique known as case linkage analysis – “CLA” – was a sufficiently developed science that it might be relied upon and thus be admissible as expert evidence in judicial proceedings.  Having heard evidence from those engaged in the academic and scientific development of that theory, this court concluded that CLA was not sufficiently reliable to be admissible as expert evidence in judicial proceedings.  For convenience we repeat what we said at paragraphs 56 to 58 in that earlier opinion:

“[56]  Having considered the evidence of both Professor Canter and Dr Woodhams we have little difficulty in reaching the conclusion that CLA evidence, in its present state of development, does not possess the necessary qualities to render it admissible in court, either before a jury or in appellate proceedings.  It is an area of academic research which is still in its infancy - it is an aspect of behavioural science which has only been actively pursued since the 1980s, and Dr Woodhams stated that there were only six research papers analysing potentially linked murders, and about twelve papers analysing potentially linked rapes.  While the underlying theories of behavioural consistency and behavioural distinctiveness appear to have some foundation in general experience, the application of these theories in the context of criminal behaviour, and CLA in particular, is not yet tested.

 

[57]  There are several aspects of the methodology of CLA at present which suggest that it is not yet reliable.  Most studies do not take account of victimology, and the effect of a victim's reaction and behaviour on the behaviour of the offender.  Research to date is concerned only with closed, or solved, crimes, and it is not apparent that it can safely be applied to predictions, or unsolved crimes.  Inter-rater reliability remains a real issue, and there appears to be no agreed or uniform procedure (either within the UK or worldwide) to check and certify this.  Indeed, there are no agreed international or national standards in the field of CLA.

 

[58]  Perhaps the aspect of CLA which is of most concern when considering whether or not it is sufficiently reliable to be admissible evidence is its known high error rate, and the lack of any means whereby a fact finder may weigh and assess the evidence in a particular case.  Professor Canter accepted in his evidence that the best AUC which has been achieved in CLA is 75%.  This means that in a quarter of potentially linked crimes (and perhaps more), CLA will indicate that crimes are linked, when it is known that in fact they are not linked.  There is no way in which a fact finder in a particular case can form a view as to whether the crime which is being considered is or is not correctly linked to another crime.  No weighting can be given to the CLA evidence - it is either right or wrong, but no assistance can be given by a CLA ‘expert’ as to which, in a particular case.  Even in the best conditions, with the best researchers using the best practices, there is still a high number of false positives and false negatives, and no satisfactory explanation has yet been found for this.”

 

[6]        However, recognising that the issue remitted to the court by the interlocutor appointing the hearing which led to that earlier opinion of 13 November 2013 was limited to the question whether CLA was a sufficiently established and reliable science to enable expert evidence to be led, the decision on that remit could not be seen as deciding the appeal.  Hence the court has heard parties further by way of both written and oral submission on the grounds of appeal.

[7]        On behalf of the appellant, Mr Kerrigan submitted that notwithstanding the conclusions reached by this court respecting the status and reliability of CLA this court should nonetheless hear, as fresh evidence in terms of section 106(3)(a) of the Criminal Procedure (Scotland) Act 1995, evidence from the following:

“(a)      Evidence from two pathologists who, in a report dated 16 December 2004, reviewed the reports of the autopsies carried out in the six cases embraced in Operation Trinity in order to elicit their opinion evidence on the similarities in the circumstances and methods deployed by the assailant in each of the cases respectively. 

 

(b)        Evidence from the police officers who had conducted Operation Trinity and compiled the Operation Trinity report as to their findings

 

(i)         That they reasonably inferred that the same person was responsible for the six deaths under review and

 

(ii)        A link between one of those cases and “X”.

 

(c)        The database – the SCOTHOLM database report -compiled for Operation Trinity.

 

(d)        The circumstantial evidence found by police officers of similarities between the six homicides:

 

(e)        Certain evidence of DNA profiles and witness sightings of a caravanette at a particular location on a specified date in the autumn of 1977:  and

 

(f)         Post-mortem findings respecting the death of a female of whose murder X had been convicted.”

 

Put shortly it was submitted that in light of that evidence it would be open to this court – and in principle a jury – to infer that the similarities between the six cases were sufficiently striking and persuasive that it could be concluded that the six homicides had been committed by the same person;  that the person in question was most likely to have been “X”;  and accordingly that there must be a reasonable doubt whether the appellant had committed the murder of Frances Barker, of which he had been convicted. 

[8]        We consider first the invitation to hear evidence from the two pathologists of their review of the autopsy reports and the officers engaged in Operation Trinity respecting their review and consideration of the investigations carried out in the six cases in question, to which the data base report is an adjunct. 

[9]        While counsel for the appellant disclaimed any intention to lead CLA evidence, it appears to us that notwithstanding that disclaimer what counsel for the appellant proposes is in effect the leading of opinion evidence regarded linkage between the six homicides from those who have no claim to expertise in CLA.  While the pathologists are undoubtedly qualified as experts in pathology it is not suggested that they are qualified to express any view in terms of behavioural science or psychology.  Nor is it suggested that the pathologists have a developed methodology underlying any views expressed by them that the homicides bore striking similarities such that any meaningful conclusion could be derived from them.  As was explained in paragraph 58 of the opinion which we delivered earlier, those who have sought to develop CLA as a science have as yet been unable to achieve acceptable reliability in the endeavour to link cases.  We therefore consider that the notion that the court should accept the opinion evidence of those without any relevant case link expertise, which, in any event, academic and scientific study says cannot, at least as yet, achieve any acceptable standard of reliability, is one which we must reject.  The same applies, possibly a fortiori, respecting the opinions of the police officers engaged in Operation Trinity.

[10]      Perhaps in recognition of that difficulty, the submission for the now deceased appellant appeared to move in the direction of a submission that the jury – in casu this court – was itself qualified to conduct appropriate, but inexpert, case linkage analysis.  In doing so it moved to heads (d) to (f) in paragraph [6] above. In other words, if, on the basis of primary, and not opinion, evidence, namely evidence of the factual circumstances obtaining in each of the six homicides in question, the jury were satisfied that there were a sufficient number of striking similarities such that all of the homicides, including that of which the appellant has been convicted, must have been committed by another individual – the individual “X” – the jury could not be satisfied beyond reasonable doubt of the appellant’s guilt;  acquittal would therefore have to follow. 

[11]      In advancing that submission counsel for the appellant placed much reliance on Howden v HM Advocate 1994 SCCR 23 as establishing the proposition that it was open to a jury to hold, on the basis of an examination of circumstantial evidence, that two crimes had been committed by the same person.  It is no doubt true that the decision in that case proceeded upon the basis that it was open to a jury to conclude from circumstantial evidence that two crimes had been committed by the same person and thus to rely on the positive identification in one of those crimes.  However, as the Advocate depute pointed out to us, it is important to bear in mind the peculiar circumstances of the two charges in Howden.  The case concerned two armed robberies in Edinburgh, one on a building society office and one on a branch of a bank committed within 14 days of each other.  The charges were of course laid in the same indictment.  In each case there was video evidence of what occurred within the respective premises.  The accused, Howden, was clearly identified by witnesses as the perpetrator of the first robbery.  In the second robbery, in the bank premises, three members of the bank staff gave evidence, with varying degrees of confidence, that the accused had a resemblance to the perpetrator.  Their evidence as to the clothing worn by the robber was similar to the descriptions given in evidence by the witnesses in the first robbery in the building society.  There was evidence that the accused was a man who normally wore spectacles.  There was also evidence that in both incidents the robber wore “clip on” sunglasses and that shortly after the second robbery a person whose description matched the accused was seen to discard in the vicinity of the premises in which the second robbery occurred a pair of “clip on” sunglasses and a baseball cap similar in type and marking to that worn by the perpetrator.  The pistol used in each of the incidents was depicted on the video of each incident; the pistol appeared from examination of the video footage to be identical.  And a similarly worded threat was made to the staff in each case.  The trial judge instructed the jury that in the case of the second incident they could not rely on the resemblance identification alone but required to consider it in the light of the circumstantial evidence and required to be satisfied on the basis of the circumstantial evidence that the same man was involved. 

[12]      In delivering the ex tempore opinion of the court the Lord Justice General endorsed the approach of the trial judge.  While at one point in the opinion the Lord Justice General said that the strength or otherwise of the eyewitness identification in the second incident was not of importance in the circumstances, provided the jury were satisfied that the same person committed both robberies, it is, in our view, apparent that the decision in Howden v HM Advocate was given against the particular circumstances and the particular evidence obtaining in that case.  The case is, in our view, far removed from the case linkage exercise which counsel for the appellant advocates should be pursued in the present appeal. 

[13]      In that respect it is also to be noted that there is no direct evidence of any link whatsoever between the murder of Frances Barker and the individual “X”.  By contrast, there was a very substantial body of direct and circumstantial evidence incriminating the appellant.  Put briefly:

(i)         There was direct evidence of the appellant’s having attempted to murder another female victim at exactly the same location two weeks prior to the murder of Frances Barker.  The appellant was unanimously convicted of that crime, which is not under appeal.

 

(ii)        Bleached hairs similar to those of the deceased Frances Barker were recovered from within the cab of the lorry driven by the appellant. 

 

(iii)         Particular personal items belonging to Frances Barker were recovered from the appellant’s daughter, having been given to her by the appellant. Other such items were found by the police underneath the floorboards of a room in the dwelling in which the appellant was residing at the time of his arrest. 

 

(iv)          The account given by the appellant of how he came by those items was demonstrated to be false.

 

(v)        There were notable, and in the circumstances, suspicious features surrounding the appellant’s use of his lorry in that he failed to complete the records relevant to the date in question;  and

 

(vi)       The appellant accepted in an interview with the police that he might well have committed this murder during one of what he described as his ‘blackouts’.

 

[14]      Accordingly what is proposed by the appellant is that, notwithstanding the clear, direct evidence incriminating the appellant in the Frances Barker murder – which is not otherwise suggested in any of its particularities  to have been inaccurate, untruthful or unreliable – and notwithstanding the absence of any direct evidence that “X” had any involvement in the murder of Frances Barker, this court should embark upon the exercise of hearing evidence respecting five other homicides all  in the hope that it might eventually be persuaded that there were such similarities between the homicides that the court should disregard the direct evidence implicating the appellant in the murder of Frances Barker, and the absence of direct evidence implicating “X” in that murder, on the basis of similarity of essentially circumstance and modus operandi.  That, in our view, is in reality to invite the court to conduct the case linkage analysis exercise which expert evidence has demonstrated to us to be unreliable. 

[15]      We therefore consider that this submission on behalf of the appellant must be rejected.

[16]      Additionally, it has to be remembered that any fresh evidence founded upon in an appeal under section 106(3)(a) of the Criminal Procedure (Scotland) Act 1995 must be evidence which could have been placed before the jury at the trial, had it been available.  An attempt by the defence to lead evidence respecting other homicides not charged on the indictment in the present case will be open to the objection of being inadmissible as raising collateral issues.  As was stated in A v B (1895) 22 R 402 at page 404:

“Courts of law are not bound to admit the ascertainment of every disputed fact which may contribute, however slightly or indirectly, towards the solution of the issue to be tried.  Regard must be had to the limitations which time and human liability to confusion impose upon the conduct of all trials.  Experience shows that it is better to sacrifice the aid which might be got from the more or less uncertain solution of collateral issues, than to spend a great amount of time, and confuse the jury with what, in the end, even supposing it to be certain, has only an indirect bearing upon the matter in hand.”

 

At paragraphs 27ff of his Opinion in CJM v HM Advocate 2013 SCCR 215 the Lord Justice Clerk (Carloway), with the approval of the majority of the enlarged bench, affirmed that passage, and also the principles respecting the inadmissibility of evidence respecting collateral issues.

[17]      Counsel for the appellant suggested that the practical and policy considerations underlying the principle against the allowing of evidence of collateral matters could be obviated in the present case.  It was at an appellate stage and counsel expected that much of the factual matters might be agreed by means of a joint minute respecting witness statements, reports by experts and the like.  It should be recorded that the Advocate depute did not associate the Crown with that optimistic view of what might be agreed.  Be that as it may, as we have already indicated an appeal on the basis of fresh evidence proceeds upon the basis that the fresh evidence would have been admissible before the jury.  We therefore consider that the objection to the leading of evidence of the circumstances of five other homicides would be successfully opposed on the grounds of that being the leading of evidence of collateral issues.

[18]      Having regard to all of the foregoing matters, we have come to the view that we cannot uphold any of the grounds of appeal advanced by the appellant.  The appeal therefore fails.