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AN APPLICATION BY THE LORD ADVOCATE UNDER SECTION 4(3)(B) OF THE DOUBLE JEOPARDY (SCOTLAND) ACT 2011 SEEKING AUTHORITY TO BRING A NEW PROSECUTION IN THE HIGH COURT AGAINS SEAN PATRICK TIFFNEY [2022] ScotHC HCJAC_4 (20 January 2022)
URL: http://www.bailii.org/scot/cases/ScotHC/2022/2022_HCJAC_4.html
Cite as:
2022 SCCR 35,
[2022] HCJAC 4,
[2022] ScotHC HCJAC_4,
2022 SLT 428,
2022 GWD 3-38
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2022] HCJAC 4
HCA/2018/17/XM
Lord Justice Clerk
Lord Menzies
Lord Brodie
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
An Application
by
THE LORD ADVOCATE UNDER SECTION 4(3)(B) OF THE DOUBLE JEOPARDY
(SCOTLAND) ACT 2011 SEEKING AUTHORITY TO BRING A NEW PROSECUTION IN
THE HIGH COURT
Appellant
against
SEAN PATRICK TIFFNEY known as SEAN PATRICK FLYNN
Respondent
Appellant: S McCall QC; G Jones; Roy Harley & Co, Edinburgh
Respondent: A Prentice QC, Sol Adv, L Thomson; Crown Agent
9 January 2020
Background
[1]
In 2005, at the High Court of Justiciary in Perth, the respondent stood trial for the
murder of his mother Louise Tiffney and the crime of attempting to defeat the ends of
justice. Louise Tiffney was last seen alive on 27 May 2002. At the time of the respondent's
2
trial in February and March 2005, Ms Tiffney's body had not been located. While her
disappearance was initially treated as a missing person enquiry, it developed in to a mu rder
enquiry. The Crown case against the respondent was based on circumstantial evidence. In
March 2005 the jury returned, by a majority, a not proven verdict.
[2]
In this application the Crown seek to set aside the acquittal and grant authority to
bring a new prosecution against the respondent under section 4(3)(b) of the Double
Jeopardy (Scotland) Act 2011, on the basis of new physical evidence, that was not available,
and could not with the exercise of reasonable diligence have been made available, at the
trial. This evidence relates to the finding of the remains of Ms Tiffney in East Lothian, and
evidence relating to the comparison of soil samples from that location with samples
recovered during the initial investigation from a vehicle used by the respondent.
Introduction
[3]
On 2 April 2017 human skeletal remains were found by a member of the public at a
wooded area at the side of the A198 Longniddry, East Lothian. Following dental and DNA
analysis the remains were identified as those of Louise Tiffney. The cause of her death is
unascertainable. At the time of recovery of the remains samples of soil and vegetation from
the deposition site were taken. In the course of the original investigation debris from inter
alia the front wheel arch of a Nissan Almera vehicle registered number N656 FSX ("the
Nissan Almera"), to which the respondent had access, was removed in July 2002.
[4]
The application asserts that a comparison of the samples taken from the deposition
site with those taken from the vehicle, specifically with that from the front wheel arch of the
vehicle (sample X295) has shown them to have inter alia, similar grain size, shape and
elemental composition. The morphology, chemistry, mineralogy and organic profile of
3
sample X295 are said to show strong to very strong comparability with samples from the
deposition site. Its n-alkane profile is said to provide extremely strong support for the
proposition that it came from the site where the remains were located.
[5]
It is averred that the additional evidence substantially strengthens the case against
the respondent such that it meets the test for authorisation of a fresh prosecution, which
would be in the public interest. First, the location of the remains is consistent with the
CCTV and telephony evidence led at trial to suggest that the respondent had made two trips
to East Lothian on the day of 28 May 2002, once in the early hours of the morning, and later
in the mid to late morning. The Crown case was that the first trip was to dispose of the
body, and the second was to see that it was not visible during daylight hours. Second, the
scientific evidence establishes a link between the Nissan Almera and the deposition site.
Third, the remains are not inconsistent with death having occurred in May 2002.
[6]
This is contested for the respondent, who relies on scientific evidence that whilst it
would be safe to conclude that the soil forming exhibit X295 could have been derived from
the body recovery location, it is also possible that there may be other locations within East
Lothian which would have a mineralogical and vegetation profile (and therefore organic
markers) similar to that of the deposition site. It is also maintained that the scientific
evidence advanced by the Crown does not provide a sound basis for the conclusions sought
to be drawn therefrom.
Evidence at trial
[7]
The Crown sought to attempt to establish that Ms Tiffney was dead by excluding all
other possibilities. The case presented was based on circumstantial evidence.
4
[8]
There is a joint minute between the parties agreeing a summary of the evidence
given at trial. The following is a very brief summary of the key parts of the Crown's case at
trial and the evidence relied upon.
(i)
The respondent was the last person to see Ms Tiffney alive, on 27 May 2002.
An argument took place between them late on 27 or early on 28 May 2002 following
his return to the flat they shared. The respondent's position, repeated to numerous
individuals, and to police, was that they had had an argument and his mother had
left in a rage, around midnight and he had gone to bed. In the course of the morning
of 28 May 2002 he called his mother's sister, and spoke to his grandmother's
husband, saying his mother was missing and that she had left the house at midnight.
(ii)
The respondent collected Ms Tiffney's sister and brought her to the house.
She noticed that Ms Tiffney's bag, money, keys, benefits books, and cigarettes were
in the kitchen. After inquiring of a number of friends, she called the police. Her
mother also attended. Both were adamant that Ms Tiffney would not have left
without her belongings, and in particular her cigarettes, being a heavy smoker .
(iii)
As agreed by joint minute at trial extensive "proof of life" inquiries were
carried out by the police. This included interviews with friends, family and
associates; public appeals; searches and checks with various authorities, institutions
and organisations including: the Benefits Agency, Inland Revenue, Passport Office,
all UK Police Forces, the Scottish and UK DNA Databases, prisons across the UK, all
UK NHS Trusts with accident and emergency or psychiatric units, various Financial
Institutions, UK Housing Associations and women's refuges. These inquiries failed
to show any trace of Ms Tiffney being alive after 27 May 2002.
5
(iv)
Evidence suggested an escalating breakdown in the respondent's relationship
with his mother including instances of his evincing malice and ill will towards her.
The respondent's grandmother had spoken in evidence to a conversation with her
daughter in which Ms Tiffney had said that the respondent had told her to "Get t o
fuck out of my life", to which she had replied "I can't be out of your life `til I'm not
breathing" to which he replied "that's a good idea". The respondent had also spoken
of hating his mother using the terms "I hate her".
(v)
Ms Tiffney's 5 year old daughter, Hannah, had been asleep before the
respondent came home on 27 May and remained asleep until 9am on 28 May 2002.
There was evidence that Ms Tiffney had been "a doting mother" to her daughter and
would never have left her. Various family members, Ms Tiffney's current GP and
Hannah's school teacher spoke to this, and to the close relationship between mother
and daughter.
(vi)
A neighbour from the flat immediately below Ms Tiffney, spoke of hearing,
while watching Newsnight at around 11.25 pm on 27 May 2002, footsteps running
across the living room above him towards the window, followed by a very loud,
startling, female scream, which ended abruptly. He heard nothing else. Another
neighbour, in the flat immediately above Ms Tiffney's, also heard a male and female
arguing, then a scream, then heard nothing more. The scream was short but loud,
and from a female adult.
(vii)
The appellant had access to a white Nissan Almera vehicle, registration
number N656 FSX belonging to his girlfriend. Only he and his girlfriend had a key
to it. CCTV evidence cameras at Picardy Place and Wolseley Place, Edinburgh, both
accurate for time and date, showed a vehicle heading East on Wolseley Place at 0120.
6
The vehicle was identified as a Nissan Almera manufactured between 1995 and 2000,
with a roof spoiler, and what appeared to be spoked alloy wheels, consistent with the
vehicle to which the appellant had access. A car with the same appearance was later
seen heading West at Wolseley Place at 0231 and at Picardy Place at 0233. The
defence position was that a vehicle could only make that journey if driven over the
speed limit. The vehicle in each case appeared white, but certain other colours could
have that appearance on black and white recordings. Testing using different colours
of vehicle suggested that the car seen at 0120 could have been white, citrine or glacier
blue; whereas the car at 0231 could only have been white. The police had traced
owners of other white Nissan Almeras in Scotland, with the same attributes as the
car in question, and asked their whereabouts at the times in question. This evidence
was used by the Crown to suggest that other similar cars might be excluded.
(viii) Footage from the camera at Wolseley Place at 1146 showed an apparently
identical vehicle heading East. This coincided with a period during which the
appellant had left the house, as inquiries as to the whereabouts of Ms Tiffney
progressed. He claimed he had gone to his work at the Corn Exchange in the West of
Edinburgh at that time. However, telephone cell site evidence relating to calls
definitely made to or from the appellant's phone showed that the signal from these
calls was picked up by masts at Tranent, Jewel & Esk Valley College, Midroad
Industrial estate, Prestonpans, and Lochend House, all between 1223 and 1236. The
user of the phone was east of Lochend House during this period. This evidence
contradicted the respondent's position that he was at his place of employment in the
west of Edinburgh, checking if he had a shift that morning. The Crown theory
advanced at trial was that the respondent had murdered his mother and disposed of
7
her body in the early hours of 28 May 2002, probably in East Lothian, and had
returned to the site later that afternoon. It was suggested by a police witness that
when someone disposes of a body in darkness they will return to see if the body is
visible in daylight.
(ix)
The respondent had shown an apparent lack of concern in the days and
weeks that followed his mother's disappearance and, according to some witnesses,
failed to participate in efforts to find her.
(x)
The Nissan Almera used by the respondent, was seized on 14 June 2002 and
found to have a quantity of blood on the carpet lining of the boot, the DNA profiling
of which matched that of Ms Tiffney. The blood appeared diluted in parts. It did not
appear to be very old. A dust sheet, in which a body could have been wrapped, was
missing from Ms Tiffney's flat and was never recovered.
The defence position at trial
[9]
Apart from the evidence above, there was also evidence that Ms Tiffney could be
volatile, that she had a history of depression, for which she sometimes took medication, and
she sometimes ran out of medication when doing so. Although she had £398.96 in her bank
account, she was in debt for the sum of about £2,000 to her mother, £1,547 to a catalogue
company and £1,177 to a finance company. This was not unusual for her, however: she had
been made bankrupt in 1999. Without disputing that Ms Tiffney was very attached to
Hannah, it was pointed out that the child's attendance at school was erratic. There was
evidence that Ms Tiffney was upset over the rows with her son. The absence of a show of
concern from the respondent was explained by his unemotional nature, about which
witnesses gave evidence.
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[10]
It was submitted by the defence that it could not be established beyond reasonable
doubt that a crime had been committed. Ms Tiffney was a volatile individual with a number
of personal and financial difficulties, who may not be dead and could have simply left and
changed her name. Even if the jury concluded that she was dead, they could not be satisfied
(a) that she had been murdered; or (b) that the respondent had murdered her. Occasional
rows between mother and son did not constitute a breakdown in their relationship, and
there had been no ill will and malice against her. The evidence was weak. It was not for the
respondent to explain the evidence relating to the blood in the boot, which could not be
aged. No forensic evidence supporting the Crown's case was recovered from the
respondent's clothing, the flat or the stairway. No blood stains were identified in the flat
apart from a partial profile which was a mix of Ms Tiffney's and a male other than the
respondent. No other supportive evidence was found in the Nissan Almera. Paint samples
recovered from the boot of the Nissan Almera, which it was suggested could have been
transferred by the missing dust sheet, did not match the control samples taken from
Ms Tiffney's flat. There was in fact no reliable evidence that a dust sheet had in fact been
removed. The jury could not be satisfied that it was the respondent's car in the CCTV,
which might in any event not have been a white car. There had been no attempt to conceal
Ms Tiffney's belongings, and neither of the neighbours who heard screaming had felt the
need to call the police.
Evidence in this application
Professor Lorna Dawson
9
Introduction
[11]
Professor Lorna Dawson is the head of the Soil Forensics section at the James Hutton
Institute, Aberdeen where she is a principal research scientist. She holds the qualifications
of BSc (hons) in geography from the University of Edinburgh and a PhD in Soil Science from
the University of Aberdeen. She is a visiting professor in Forensic Science at the Robert
Gordon University, Aberdeen, a Fellow of the British Society of Soil Science an d a Chartered
Scientist. She has published widely on the subject of forensic soil science and is an Expert
Advisor to the National Crime Agency. In April 2017 Professor Dawson had been asked by
Police Scotland inter alia to attend and sample soil and vegetation from the deposition site
and carry out a comparison of it with the soil and plant material and debris recovered from
the Nissan Almera in 2002. She concluded that the vegetation cover at the deposition site
was broadly consistent with observations made in relation to botanical reports submitted to
the police in 2002. The pollen assemblage found at the site now differed, reflecting not only
the plants grown at the contact location habitat, but also the wider environment which is
wind-blown (tree species from across the road for example). From aerial photographs she
found the visible vegetation at the site to appear to reflect its composition in 2002, primarily
sycamore and sea buckthorn, but with greater cover and in particular a spread northwards
of sea buckthorn. The site is part of a strip of coastal scrub the soil of which belongs to what
is known as the Fraserburgh Series, a brown calcareous soil derived from windblown shelly
sands typically found on raised beaches. Fraserburgh Series soil type makes up only 0.5% of
the land cover within a 10 mile radius of Edinburgh. Various maps showed the distribution
broadly in the East Lothian area of the geology of the site; and the nature of the soil,
including the areas of Fraserburgh Series soil. These did not exactly overlap so it was not
possible to identify with clarity where the geology and soil characteristics matched; suffice it
10
to say that there were other areas within East Lothian of examples of Fraserburgh Series soil;
and other areas of similar geology, particularly close to North Berwick and Dunbar, in
respect of geology.
Some basic aspects of soil analysis
[12]
Soil is a mixture of inorganic, organic and biological material. The inorganic
represents the geological parent material, and certain man-induced particles. The organic
represents plant derived components at various levels of decay, as well as man -induced
organic material. The biological represents living organisms, plants and plant fragments. At
the James Hutton Institute, the exercise of comparing a questioned sample of soil with a
known sample starts with a visual comparison. The appearance of the physical macro and
microscopic features, for example, texture and grain shape and size are examined to see
whether they appear comparable. The samples are then analysed and their analytic features
compared, both as to inorganic features and organic features. The inorganic analysis is done
in two ways: SEM EDS and XRD. SEM refers to scanning electron microscopes which used
electrons instead of light to form 3D images of the material observed. This is combined with
EDS energy-dispersive X-ray spectroscopy which allows determination of the chemical
elements present at the point of analysis. XRD refers to X-ray diffusion which is a method to
test mineralogy. It is used to determine the structure of materials or identify materials based
on known diffraction patterns of different materials. The organic analysis is done by GC
gas chromatography. This method separates and analyses the individual carbon chain
compounds within the material. The n-alkanes - straight-chain, predominantly odd-chain
carbon compounds of carbon and hydrogen, commonly known as hydrocarbons; and the
fatty alcohols - straight-chain, predominantly even-chain carbon compounds, which contain
carbon, hydrogen and oxygen, are those which have been found to discriminate for the
11
purpose of comparison, and so are the areas of focus of the GC analysis. The former are odd
compounds C21-C35, the latter even compounds C20-30. The material in question was
subjected to all these tests.
[13]
Although Professor Dawson, as principal research scientist gave evidence about the
findings of various test which were carried out, she did not herself conduct all the tests. The
evidence reflects the work of a number of experts in different fields, referred to in a report
dated 19 January 2018, lodged as a documentary production in the form of a composite
report. Professor Dawson had sufficient knowledge of the various techniques in question to
give evidence for the purpose of the application, although detailed interrogation of the exact
interpretations would be a matter better addressed to the primary experts, in chemistry,
geology, mineralogy or other disciplines.
[14]
The samples from the Nissan included samples which were for these purposes
labelled as follows:
-X251 Debris from wheel arch, steering and suspension, front o/s
-X255 Debris from wheel arch, steering and suspension, rear n/s
-X257 Debris from wheel arch & suspension, rear o/s
-X287 Debris from wheel arch, rear o/s
-X295 Debris from wheel arch, front n/s
-x297 Debris, front off side footwell
-X468 Sand from boot
-X617 Debris brushed off grill end.
[15]
Soil samples from the body recovery site were labelled X904/1 - X904/6, representing
markers 1 -6 placed within the vicinity of the body deposition, a wooded area off the A198.
A control sample, X905 (occasionally referred to as X405) was taken from soil 15 metres east
12
of the entry to the deposition site. [From the written material (for example power points
prepared by Professor Dawson) there were what appeared to be similar occasional errors in
the description of samples; this was not clarified in evidence but we are satisfied from a
comparison of these with the evidence of Professor Dawson that the samples should be
given the references attached to them in this opinion].
[16]
There is no universally accepted scale for use in assessing the level of similarity
between compared soil samples. One recognised scale is that known as the Pye &
Fitzpatrick scale. According to this scale, categories of comparability are classified
according to the nature of the evidence, as follows:
Category of
Comparability
Examples of type of evidence
None
Different in virtually all respects
Limited
Some general comparison in terms of soil morphology (colour,
texture, and/or relatively common particles)
Moderate
General comparison in terms of soil morphology, especially in
having a similar assemblage of relatively common particle types
in common, some of which may have distinctive textural or
chemical features
Moderately Strong
Fairly high degree of comparability in terms of soil morphology,
as well as chemical, mineralogical and/or biological properties;
including relatively unusual particle types in common
Strong to very strong
High degree of comparability in terms of soil morphology as
well as chemical, mineralogical, and/or biological properties;
including several relatively unusual particle types present
Extremely strong to
conclusive
Physical fit (rocks) and very high degree of comparability in
terms of soil morphology as well as chemical, mineralogical,
and/or biological properties, including one or more very unusual
particle types present
13
Some soil scientists consider that the examples of evidence test requires a degree of
subjective assessment, and favour using an exclusionary scale, thus:
The possibility that the material originated from the same source is eliminated (excluded)
No conclusion can be reached. This can occur when there is insufficient material available
or where there is mixing with other material or there has been a change
The possibility that the material originated from the same source cannot be eliminated. This
conclusion is reached when the material cannot be differentiated from the exemplar using all
observed or measured characteristics.
The materials were once part of the same broken object. This conclusion can only be reached
when two or more parts physically fit together.
Analysis results
Visual examination
[17]
The control samples were predominantly sandy. Most of the vehicle samples
appeared to be a mixture of sources, but X295 from the front n/s wheel arch appeared to be
predominantly a single source sample. A visual examination was enough to identify that
X295 was an example of Fraserburgh Series soils, as were the control samples. One of the
available soil databases confirmed the presence of Fraserburgh Series soil on the relative
location of the deposition site. X295 could not be excluded as having a common origin with
the control samples.
Inorganic Analysis
SEM EDS
SEM
[18]
All deposition site samples had similar characteristics in terms of grain size, shape
and chemical elements. The measurement was done visually with the aid of a scale in the
eyepiece of the microscope. They are siliceous soils with variable amounts of organic
14
material. The sand grains range in size from approximately 70-580 microns. They are rich in
quartz and the grains range in shape from sub-angular to sub-rounded. Certain of the
questioned samples X251; X255; X287; X617 could be excluded as coming from the
deposition site as a single source. The sand grains were generally more angular and smaller
than those in the control samples. X468 consisted of clean sand with a uniform grain, the
overall size range of which was more restricted than in the control samples, but the size
range of 250-300 micron range were similar to the larger grains in the control samples, and
the grains were similar in shape. X295 presented similarities with the control samples, being
sandy with aggregates rich in organic matter within the finer-sized particles. The grains
ranged from 100-500 microns and with sub-rounded to sub-angular shapes also being
present.
[19]
It is common practice at the James Hutton Institute to sieve material to remove
particles which are >1mm, stones and other fragments which are stored separately. The tests
are then done on the sieved material of <1mm. The reason is that otherwise the larger
material would dominate. In Professor Dawson's view, these larger components of stone
and road are not useful. They are very common and may be found in any exterior location
in a car. She understood it to be general practice in soil science not to look at such
fragments, making reference to an academic article to this effect. Such fragments were not
helpful in analysis.
EDS
[20]
The control samples divided into two groups on analysis: set (a) consisting of
X/904/2-X/904/6; set (b), consisting of samples taken closer to the road, namely X904/1 and
X905. Set (b) had slightly higher magnesium, calcium, iron and carbon than the remaining
samples. The samples which could be excluded by SEM as coming from the deposition site
15
as a single source also had a different EDS chemical profile from those of the control
samples. EDS analysis of X468 showed a spectrum similar to that in sample set (a) but with
lower calcium and additional sodium and chlorine. Analysis of X295 showed a spectrum
with close similarities to the profile found in sample set (a) with some additional sulphur.
This could be accounted for, in Professor Dawson's view, by the 15 years which separated
the taking of the samples. It is within a variation which might be expected over time. The
additional sulphur is "neither here nor there".
[21]
The conclusion from these sets of analysis was that based on SEM EDS characteristics
neither sample X295 nor sample X468 could be excluded as coming from the general vicinity
of the deposition site. The 19 January 2018 report stated that in fact sample X295 showed
strong similarity to sample set (a) but with additional sulphur as noted above. The
remaining samples could be excluded as coming, at least as a single source sample, from
that site.
Mineralogy
XRD
[22]
Four samples were analysed for mineralogy: X295; X468; X287(rear o/s wheel arch)
and X904/3. Samples X904/3 and X295 were found to be similar in mineralogy, although
there was a trace of calcite in sample X295 and slightly more feldspar than in the control
sample. This was the result of tests carried out by Professor Hillier, soil mineralogist. His
view, based on his experience, was that the minerals were similar in both composition and
proportion. Calcite is calcium carbonate, a mineral common in shelly sand, feldspar is
aluminium silicate found in granite and used as a road surfacing material which means it
cannot be used definitively for comparison purposes. The general suite of minerals in any
given area will be similar over a spread of kilometres. This mixture is representative of
16
Fraserburgh Series soil. There will be ancillary fine trace minerals which will vary across an
area such as calcite and dolomite. These differences may be such that one can say, for
example because of the different proportions of calcite or dolomite, that the soil came from a
different area of Fraserburgh Series soil. The conclusion was that sample X295 could have
originated in large part from the same location as test sample X904/3.
[23]
X468 also had similarities in terms of minerals present, but the background of the
XRD trace was quite different, reflecting different organics in the sample. Thus, despite the
visual and SEM EDS similarities with the control samples, X468 could be excluded as
coming, as a single source, from the body recovery site. X287 had a much higher feldspar
content and also contained pyroxene suggesting a basaltic parent material, including road
stone which is often quarried from such rock. It too could be excluded as coming, as a single
source, from the body recovery site.
Organic Analysis
GC
n-Alkanes
[24]
The n-alkane profiles of X295 and X468 were similar to the profiles of control samples
X904/2-6. X295 was very similar in n-alkane characteristic to the control samples, having a
very strong C29 dominance, which reflected the sea buckthorn and sycamore profile, both
species common at the deposition site. The pattern of distribution was represented in a
chart. The association of say, sea buckthorn with sycamore, will produce a different pattern
from, for example, sycamore with grasses. Sea buckthorn and sycamore may be relatively
common. However, different habitats and different locations with the same general species
but subject to differing uses or climactic conditions will result in a different profile, as the
rate of breakdown of alkane compounds will be different.
17
[25]
The analysis did not allow quantification of exactly how much of the profile
represented sea buckthorn or sycamore. However, it was possible to identify what
proportion of either of these was present relative to the other, and this was reproduced to
show the pattern of occurrence as a representative proportion. The comparison looks at the
pattern in terms of dominance and concentrations as a relative percentage of the whole. The
similarity was most marked between marker 5 - X904/5 - and X295, which were very similar.
The characteristics of all the other queried samples tested were different.
Fatty Alcohols
[26]
The alcohol profile in X295 was similar to the alcohol profiles of control samples
X904/2-6, with the similarity between X295 and X904/5 and X904/6 being very similar. X468,
whilst similar in n-alkane profile, had different contributions from two of the alcohol
compounds tested for, C20 and C28. Characteristics of all other samples were different.
Again, the pattern of distribution was presented in graphic form, reflecting dominance and
concentrations relative to each other and as a percentage of the whole.
Statistical ratios
[27]
This was an exercise carried out by a statistician, Dr Mark Brewer, using the results
of the organic analysis. The intention was to compare information available from certain
data sets with X295, specifically focusing on C29, and in an effort to obtain a ratio of the
likelihood of that coming from the deposition site as opposed to another site within a 20km
distance. The data sets used were (a) the control samples; (b) samples used in Operation
Columbus (used in HM Advocate v Sinclair No 2 2014 SCCR 554) and taken from the Gosford
beach/Longniddry area; and (c) a national database. The analysis suggested that on the
basis of the n-alkanes the three data sets in question can be distinguished from one another .
This suggested that X295 was more closely associated with the deposition site than other
18
samples in the data sets, whereas X468 was more closely associated with the Operation
Columbus samples than any other data set. Using alkane C29 as the basis for the statistical
approach produced "extremely strong support" for the h ypothesis that X295 came from the
deposition site data set than from one of the others.
Dr Duncan Pirrie
[28]
Dr Pirrie is principal consultant geologist for Helford Geoscience LLP. He holds
both a BSc and a PhD in geology and has been employed as a professional geologist since
1985. He is a Fellow of the Geological Society of London. He is Associate Professor within
the School of Applied Science at the University of South Wales, teaching in the Geology and
Forensic science degree programmes. He is a member of the academic research team of the
Home Office Centre for Applied Science and Technology. He has published widely on
geological matters. He knows Professor Dawson and has co-authored publications with her.
He did not think it was correct to say there was a universal approach that material should be
sieved at 1mm: some laboratories did so, some did not. He would not. The result of the
sieving is that only the finer grain samples have been tested; the coarser ones have not, and
we do not know what they might have established.
[29]
Three reports were ultimately prepared by Dr Pirrie, documenting his views on
Professor Dawson's reports, what further information or clarification was needed to enable
him to address the questions asked of him, the results of a review of the samples in question
and his own analysis thereof. The first report containing his initial views was dated 10 May
2019. In it he concluded that
"whilst the methods used are generally appropriate, the grain size/shape, elemental
composition and mineralogy have not been thoroughly quantified and/or reported.
The apparent similarity between the critical samples based on these parameters has
not therefore been adequately tested, hence limited significance can be placed on the
parameters."
19
The estimation of grain size alone was of limited value. He sought further information so
that he could evaluate these matters. He was concerned that the mineralogist,
Professor Hillier, had not provided with his report an "interpreted trace" or audit trail of his
conclusions.
[30]
In his final report, dated 6 September 2019, and in his evidence, he repeated that the
data presented in Professor Dawson's report as to grain size/shape, elemental composition
and mineralogy was not quantified and so was of "limited value in testing the proposition
that the soil forming exhibit X295 .......could have been derived from the body recovery
location". However, Dr Pirrie himself carried out a quantitative analysis of the mineralogy.
He noted that X295 and X904/3, 5 and 6 "are comparable with each other in terms of the
mineral types present, the mineral textures, and also the relative abundance of the minerals
present". X295 and X904/3 "show a very strong mineralogical comparison with each other
based on both the major/minor and trace minerals present". He concluded that this analysis
does
"demonstrate that there is a strong quantitative correspondence between the soil
sample analysed from the motor vehicle and the soils present at the body recovery
location."
[31]
Of the samples analysed by him, "the strongest similarity is between the soil samples
recovered from the vehicle [ie X295] and sample X904/3". However, he also identified that
X295 was "broadly similar" with a sample which he had collected 1 km North of the
deposition site. The difference lay in the proportion of calcite and dolomite. The calcite
could come from a shell which might have been sieved out.
[32]
In para 6.3 of his first report he stated that "there is an apparent extremely strong
similarity based on the available n-alkane data." He observes that these, however, are a
20
function of the vegetation at the locus, and there was no consideration within Professor
Dawson's reports of how many locations within the East Lothian area would give a similar
n-alkane profile. It was known that in 2002 the vehicle was stored outside in an area where
there were sycamore trees. It was possible that viable fragments of sycamore could have
been transferred to the vehicle depending on how it was moved after it was seized. He
considered further work was required to "assess the evidential significance of the reported
similarity". It was not known what proportion of the C29 dominance was related to sea
buckthorn or to sycamore or to both in combination. To know how strongly this result
represents a given site, one would need to know how much the C29 result varied across sites
with the same vegetation. He noted that Professor Dawson had suggested that the organic
markers were site specific. He recommended that additional control samples be collected at
Longniddry so that the variation in organic markers could be tested.
[33]
He questioned the value of the statistical ratio evidence in Professor Dawson's report
in the absence of evidence showing how variable the n-alkane dominance is across sites with
broadly the same vegetation. The comparison was of much more value. He considered that
"it would be safe to conclude that the soil present forming exhibit X295 could have been
derived from the body recovery location" (the emphasis is his). However, it was also
possible that there may be other locations within East Lothian which would have a similar
mineralogical and vegetation profile as the deposition site.
[34]
His ultimate conclusion was:
"The modern soil forensic analysis has demonstrated a strong similarity between one
sample recovered from the vehicle [ie X295] and samples from the body deposition
site."
[35]
In relation to the samples where the similarity was closest, these were taken closest
to the deposition site, not closest to the road. Based on the 2019 vegetation around the
21
deposition site the witness did not think he could have driven a vehicle close to the site. He
doubted whether it could have been done in 2002. A car would have had to crash through
the vegetation.
Submissions by the Crown in this application
[36]
It is submitted that the new evidence adds strength and substance to the case against
the respondent. It is consistent with and supplements the incriminatory evidence relied
upon and advanced at the original trial. The location of the remains is consistent with the
CCTV and telephone evidence led at the original trial. The scientific analysis of the debris
and the samples taken from the deposition site link the Nissan Almera car used by the
respondent to the location of the remains of Ms Tiffney. The condition of the skeletal
remains is not inconsistent with death having occurred in May 2002. It is capable of
supporting an argument that a jury should not have any reasonable doubts in relation to the
reliability and significance of the CCTV and telephony evidence at trial. It is capable of
being interpreted by a jury as establishing a strong link between the motor vehicle used by
the respondent and the location where Ms Tiffney's remains were found. It enables a jury to
conclude that Ms Tiffney is dead.
[37]
While Dr Pirrie was critical of some aspects of Professor's Dawson's report, he does
not suggest the conclusions are scientifically invalid. He says more sampling might have
given a more complete picture. However, the jury would be entitled to make the
comparison in the context of the whole case, and when one combines the evidence at trial
with the new evidence, including the scientific evidence, the Crown case is substantially
strengthened. At trial there was a line challenging the fact of death and that is now
22
absolutely plugged. The crime is the most serious one. It would be in the interests of justice
that the application be granted.
Submissions for the respondent in this application
[38]
It was accepted that there is new evidence which was not available, and could not
with the exercise of reasonable diligence have been made available, at the trial. However, it
was not accepted that the remaining elements of the test were met. It is not enough to say
that X295 could have come from the deposition site, as one proposition amongst other
propositions. The court has to assess the evidential and persuasive effect of the evidence,
which is weak.
[39]
It is not admitted that the skeletal remains were in a condition consistent with death
having occurred in 2002, and the Crown has led no evidence in support of that averment.
The Crown has led no evidence to support the proposition that what was discovered in 2017
was a body deposition site as opposed to a remains deposition site, although the former is
recognised as a possibility. It was accepted that there was hearsay evidence that what were
found were bones, and it was conceded that this was not consistent with a recent death. The
evidence before the court does not establish either that she was dead in 2002 or that she was
murdered.
[40]
The Crown rely on the original CCTV evidence led at trial, but it is not the case that
there was evidence that it was the same car seen in all the images. Since the trial, additional
CCTV footage, referred to in a further joint minute, had been discovered showing a vehicle
similar to that seen in the Wolseley Place footage travelling East through Portobello High
Street on 28 May 2002 at 02.35.46 hours according to its time stamp. That had the potential
to undermine the CCTV evidence led at the trial. The telephony evidence was limited, and
23
no evidence was led from the respondent's fellow employees to contradict his evidence th at
he was at work in the West of Edinburgh at the time of the calls in question. The cell site
evidence does not place the respondent's phone at the site of the remains nor does it have
him travelling in any particular direction. On the evidence he may not have been moving at
all.
[41]
The Crown state the matter too highly in submitting that the scientific evidence
establishes a link between the car and the deposition site. The evidence establishes only that
one cannot exclude X295 and certain samples from the deposition site as having a common
source. There could be other sites in East Lothian with a similar composition. This is
significant because there was evidence at trial of the respondent driving to North Berwick,
where it is known that there is Fraserburgh Series soil. It is not enough to add an adminicle
of evidence: the court must be satisfied that the evidence substantially strengthens the
Crown case and that a jury knowing of it would have been likely to convict.
[42]
There were practicalities also: how might the sample have been picked up by the
vehicle? Dr Pirrie doubted it would have been possible to drive to the site.
Analysis and decision
[43]
The court is only entitled to set aside an acquittal on the basis of new evidence which
was not available and could not reasonably have been made available at the trial where the
test in section 4(7) of the Double Jeopardy (Scotland) Act 2011 has been met, namely, where
the court is satisfied that:
(a) the case against the person is strengthened substantially by the new evidence,
....
24
(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.
For these purposes, the "case" means "the evidence led at the original trial against the
respondent" (HM Advocate v Coulter 2017 JC 115 at paras 37 & 40). It "involves consideration
only of the evidence led at the original trial, and the legitimate inferences which may be
drawn from it." (HM Advocate v Sinclair No 2 2015 JC 137 at para 99).
[44]
A case is "substantially strengthened" in terms of section 4(7)(a) where the new
evidence has more than a trivial or marginal effect on its strength. Its strengthening effect
must be more than de minimis, it must add weight or substance to the case against the
individual. In considering the strengthening effect of evidence the court may look at the
apparent defects in the original trial, for example in HMA v Coulter the absence of evidence
placing a weapon in the hands of any of the respondents, or in Sinclair No 2 the absence of a
link between the ligature and the respondent. When considering section 4(7)(c) in
particular, "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
trial" (Sinclair No 2, para 99). Assessment of the likely effect of the evidence on a jury "must
involve considerations of the evidential and persuasive effect of the evidence" (Sinclair No 2,
para 102).
[45]
As to the interests of justice, the Act does not narrate the factors the court requires to
take in to consideration, but such factors could include:
25
- the fact of the acquittal;
- the effect of publicity;
- 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. "The more certain the new
proof, the more it will be in the interests of justice to re-indict" (Coulter, para 47);
- the passage of time and any prejudice which may flow from it, including the extent
to which the original evidence is relatively intact;
- the conduct of the Crown, both at the time of the original trial and since.
[46]
Rule 59.4(9) of the Act of Adjournal (Criminal Procedure Rules) 1996 provides that
when hearing evidence in an application of this type the court should do so in accordance
with existing law and practice. However, the court is not required to hear evidence at all
and can even remit to a fit person to enquire and report on the matter. When it does hear
evidence it is not necessary to adhere rigidly to the rules of evidence: the real questions are
whether the evidence exists and whether it can be laid before the jury in a competent
fashion. Questions of admissibility are for the trial court. The court hearing the application
is entitled to proceed on the basis that at any retrial the Crown will be able to establish
matters for which only hearsay evidence is provided at the hearing on the application.
26
Does the new evidence substantially strengthen the case against the respondent?
The location and condition of the remains
[47]
On this matter it is relevant to look at what were the weaknesses in the Crown case at
trial. The most significant weakness by far related to the question whether Louise Tiffney
was dead. A considerable portion of the defence speech was devoted to suggesting that the
jury should not be quick to jump to the conclusion that she was dead. Emphasis was placed
on evidence suggesting that she was troubled, volatile, extravagant, impulsive and needy.
She was heavily in debt and she had numerous family and other problems. This evidence
was assembled to suggest that the jury could not be satisfied beyond reasonable doubt that
she had not simply turned her back on all her troubles. Reference was made to some
evidence that she had on a prior occasion changed her name, which could explain why the
proof of life evidence returned blank. Furthermore, there was no evidence that she had been
murdered. She had mental health problems, she was on antibiotics, was volatile, and
although a note in her medical records had recorded "not suicidal", that at least indicated a
sufficient concern about her mental health for the issue to be raised. The jury could not be
satisfied that she was dead, or even if she were, that she had not committed suicide. It was
not for the respondent to explain a spot of blood in his car, which could not be aged and as
to which there was no evidence about what might have caused it. There was no
incriminating evidence in the house, the stairway or the respondent's clothing. The CCTV
evidence was vague as to the car in question with nothing unique to suggest that it was the
car used by the respondent; and the telephony evidence was not scientifically exact and
could not be relied upon.
[48]
The finding of the remains of the deceased in a location consistent with both the
suggestion that the CCTV evidence showed the respondent driving towards and back from
27
East Lothian immediately after his mother was last seen, and the telephony evidence which
would be consistent with his being in an easterly location later in the day, when the second
CCTV evidence was seen, is evidence which in our view can only substantially strengthen
the Crown case. The telephony evidence may not enable the respondent's location to be pin-
pointed, but it is consistent with the case against him advanced by the Crown. It shows that
he was at least east of Lochend at the time when he maintains that he was in the far west of
the city. It weakens the arguments advanced for the defence, and strengthens the
circumstantial case advanced by the Crown. It plugs the gap created in the original trial by
the absence of conclusive proof of death. Moreover, the location of the body is also capable
of giving rise to the inference that suicide was not likely. We do not think that the
additional CCTV evidence relating to a car in Portobello on the morning in question is of
materiality, particularly since the accuracy of the time stamp on the camera cannot be
verified.
The soil site analysis
[49]
The criticisms which Dr Pirrie advanced against the evidence offered by Professor
Dawson related substantially to two points: first, that the evidence as to grain size/shape,
elemental composition and mineralogy was not quantified, and was thus of limited value in
establishing a link between X295 and the deposition site; and second that as to the n-alkane
profiles, other sites with a similar composition might exist elsewhere in East Lothian. We do
not consider that these two factors mean that the evidence is not capable of substantially
strengthening the Crown case, even before we consider the fact that Dr Pirrie's own
quantitative analysis led to a similar conclusion.
[50]
There were two weaknesses in Dr Pirrie's approach. The first was tendency to
examine aspects of Professor Dawson's evidence in isolation from each other, rather than to
28
look at the evidence as a whole. We return to this in the next section, but for present
purposes it is enough to say that what we must do is look at the evidence presented by
Professor Dawson as a whole, and ask whether, working through the various tests carried
out, it leads to a strengthening of the Crown case. The second weakness in Dr Pirrie's
evidence, from the forensic point of view, was that not surprisingly, he was assessing that
evidence as a scientist, rather than as a jury might assess it. Thus he reached the conclusion
that whilst the qualitative evidence presented in the report was consistent with X295 coming
from the deposition site, it was "not fully scientifically demonstrated". His complaint was
not that the approach taken by Professor Dawson and her colleagues was invalid; nor that
no conclusion could be reached on their approach; rather it was that scientific proof could
not be established from such an approach. However, it is in the nature of this evidence that
the opinion and expertise of the expert will be relevant, approaching the matter from the
point of view of legal, rather than scientific proof. To cite but one example: Dr Pirrie
expressed concern that he had not been supplied with a documentary interpretive trace to
vouch Professor Hillier's conclusions. However, when the evidence that Professor Hillier
had based his conclusions on his own experience and expertise of looking at the trace, and
had reached the conclusion from a visual examination was put to him, he accepted that
Professor Hillier probably had the expertise to do this. It would be a matter for the jury
whether they accepted the Professor's evidence about this. The same applies to the findings
of the other experts, and their decision to use the Pye & Fitzgerald scale, rather than the
exclusionary one. Dr Pirrie prefers to use the latter but it is not suggested that use of the
former is an unacceptable approach to take. In any event, even on the qualitative material,
Dr Pirrie accepted that the possibility could not be eliminated that X295 came from the same
source as certain samples from the deposition site. On the exclusionary scale such a
29
conclusion is reached when the material cannot be differentiated from the exemplar using all
observed or measured characteristics. The only higher category in the exclusionary scale is
that the materials were once part of the same broken object. This conclusion can only be
reached when two or more parts physically fit together.
[51]
We have not included in this assessment so far the statistical ratio evidence.
However, as we understood Professor Dawson's evidence, it is important to note that this is
not an exercise in comparison of the kind carried out by the other experts involved. Rather
it is an exercise of examining alternative hypotheses using the selected data sets. The
question is thus could the sample have come from an alternative location within the data
sets selected or is it more likely to have come from the recovery site. The conclusion that
there was "extremely strong" support that X295 came from the deposition site must be
placed in this context, in which it may mean that it is, on its own, of a more limited
significance than the wording of the conclusion might suggest to the uninformed. The
results of the exercise may of course be limited by the nature of the data sets selected, but we
are unable to say that the evidence has no value, especially when taken alongside the
scientific analyses carried out.
[52]
We are satisfied therefore that the statistical evidence also strengthens the Crown
case.
The condition of the remains
[53]
At first blush, it might seem somewhat strange that the Crown did not lead any
evidence before us as to the finding of the remains, the condition in which they were found,
and how they were distributed relative to the vegetation. In a submission in answer to those
for counsel for the respondent the advocate depute submitted that bearing in mind the
nature of the hearing the court is seized of all the material lodged, including productions,
30
but he did not draw our attention to any specific material, save a defence production which
we were not inclined to consider, having regard, amongst other things, to the fact that a
decision not to lead the witness in question had been taken after discussion with the
advocate depute. However, it should be noted that the Crown's averment as to the
condition of the remains is in fact rather limited. It is that the condition is "not inconsistent"
with death having occurred in May 2002. Notwithstanding the submission made by
Ms McColl we did not understand her to dispute that this was a possible inference which
the evidence might bear. No doubt there are others. It is admitted in the Answers that what
were found were "skeletal remains" which is consistent with hearsay evidence that what
were found were bones. Overall, we are satisfied that the inference that the remains were in
a condition not inconsistent with death having occurred in 2002 is one which the Crown
could legitimately advance at trial, even on the limited evidence which we have examined.
Taken with the proof of life evidence, it enables the Crown to suggest that Louise Tiffney
was dead all along, a possibility which counsel accepted arose on the evidence. This too
substantially strengthens the Crown case.
On the new evidence and the evidence led at the original trial, is it h ighly likely that a
reasonable jury properly instructed would have convicted the respondent of the original
offence?
[54]
Although we have examined separately the three strands of evidence relied upon by
the Crown as substantially strengthening the case, it must be borne in mind that the Crown
case is a circumstantial one, and should not be assessed by reference only to the significance
or strength of isolated bits of evidence. No piece of the evidence led at the original trial
should be examined in isolation, nor should the evidence of the finding of the remains, the
inferences which might be drawn from their condition, or the soil science evidence. It is the
31
cumulative effect of the evidence the row, the screams, the fact that the respondent was the
last person known to see the deceased, the blood, the CCTV, the telephony, both of the latter
being consistent with making a journey to East Lothian, and the finding of the remains in the
location and condition shown by the evidence, together with the scien tific evidence which
must be considered as a whole. The real question is whether all this evidence together
would not only entitle but would be likely to lead a jury to draw adverse inferences such as
to justify convicting the respondent.
[55]
We have referred to the tendency of Dr Pirrie's evidence to examine aspects of
Professor Dawson's evidence in isolation from each other, rather than to look at the evidence
as a whole. The court on the other hand, must look at that evidence as a whole, and address
the question whether the evidence, taking the combination of visual analysis, SEM, EDS,
XRD, and GC, both in relation to n-alkanes and fatty alcohols, builds up a persuasive and
compelling picture. Moreover, it must do so not by examination of that evidence alone, but
by an examination of that evidence as it might be seen in the context of the evidence led at
trial, and the significance of the finding of the body at the location in question. The context
in which the court must look at it now also includes the evidence from Dr Pirrie as to the
results of his own quantitative analysis, which on his own conclusion demonstrates a strong
quantitative correspondence between X295 and soil from the deposition site. It is the
cumulative effect of this evidence, taken with the evidence to which we have made reference
in the previous paragraph, which must be considered. Having done so, we consider that the
combination of evidence presents a compelling and persuasive case against the respondent
such that a properly instructed jury, considering it all together, would have been likely to
convict of the original offence.
32
Is it in the interests of justice to grant the application?
[56]
We have noted above the factors which may be relevant to this point. The crime is of
a most serious kind, and it is clearly in the public interest that such crimes be prosecuted.
The new evidence is considerably strengthening of the Crown case, and from a persuasive
point of view enables the Crown to present a highly compelling case. Three witnesses who
gave evidence at the original trial have since died, one suffers from ill-health and would be
unlikely to be able to testify and one cannot be traced. There is no basis to consider any
prejudice arises from these facts, given the availability of statements and the like. Of those
witnesses not called at trial, 13 are dead and 7 untraced. Again, we do not consider that the
absence of those witnesses would be significant or would prejudice the respondent . The real
evidence from the original trial is relatively intact, with the majority of productions and
labels still being available. There is no suggestion that the absence of any productions
creates any prejudice to the respondent, and looking at the list we do not see where any such
prejudice might arise. We have examined the list of labels which are no longer in existence
and we do not consider that any risk of prejudice to the accused arises from this, or that by
virtue of their absence it would not be in the interests of justice to set aside the acquittal and
grant authority for a new trial. Accordingly we are satisfied that the test in section 4(7) has
been met and we shall grant the application.
