Criminal Law
Double Jeopardy
Double Jeopardy and HMA v Auld
Gillian Mawdsley* comments on Her Majesty’s Advocate v. Francis David Auld [2016] HCJAC 18,
an application under section 3(3)(b) of the Double Jeopardy (Scotland) Act 2011
T
he Double Jeopardy (Scotland) Act 2011 (2011 Act)
commenced on 28 November 2011 with retrospective effect.
Following that, there may have been a perception that this Act
provided a method by which the Crown could seek retrials,
creating the Crown with a right to make applications where
there had been unsuccessful prosecutions, for whatever reason,
resulting in acquittals. That course of action might be especially
inviting to the Crown where expectations of achieving a
conviction had been high, perhaps based on the public
perception (not of course the relevant test) of the crime and/or
the reporting of the evidence.
Examining the recent decision in the Crown’s unsuccessful
application in relation to the case involving Francis Auld and
the death of Amana Duffy provides clarity on the interpretation
of the section 3(3) (b) of the 2011 Act. It certainly tends to rebut
any such perception about applications under the 2011 Act
being inevitably successful. That supports Fiona Laverick’s
comment on Sinclair 1 (though dealing with a section 4
application) that:
“The double jeopardy principle exists for good reasons,
but the narrowness of the exceptions in the [2011] Act
coupled with their limited use to date only in extremely
serious cases, should leave all but the most hardened
supporters of an absolute rule satisfied that the reforms
have been a positive development”.2
Turning to this application, it is worth recalling the
background to the 2011 Act. There have been few cases in the
last twenty-five years that have heralded the outcry that the
1992 verdict in the murder of Amanda Duffy received. One
can speculate that it may have been as much for the jury’s
verdict of ‘not proven’ as its effect meaning that the accused
had tholed his assize, at common law, requiring him never to
stand trial again.3
The logic of the argument about the finality of the verdict
is clear; the jury has spoken. It should not be a matter for the
State to determine whether or not to accept such a verdict.
There needs to be closure in respect of the result of criminal
trials, balancing fairness to the accused and providing
protection against State oppression.4
The 2011 Act recognised that there may be significant
advances in the detection of scientific evidence, production of
new evidence or admissions made by the accused, meaning
that an acquitted person should be able to face a retrial in certain
circumstances. By creating that right, public confidence in the
Scottish justice system is promoted ensuring that justice can
always be seen to be done.
Facts
The details of the murder are set out in detail in the decision.
In brief, Amanda Duffy was murdered between the early
morning and evening of 30 May 1992. She had last been seen
alive in the company of the accused knew each other from
school. Both were described as being quite drunk. Amanda
Duffy had been out with friends when she met the accused
near Primark, Hamilton. Both remained together when others
had left. Contradictory evidence was led as to any physical
contact between them.
A witness, Brian Greig, spoke to a conversation with the
accused some time after the murder when he said that he had
Page 116
2016 SCOLAG (June)
met Amanda Duffy, walked round the precinct and kissed. They
heard someone shouting and Amanda Duffy said “It’s okay,
it’s only Mark”. The accused had left her with Mark and gone
home. None of the friends in whose company the deceased had
spent the evening was called Mark. She had never had a
boyfriend called Mark.
At the post mortem, Amanda Duffy had injuries to the head
and neck. Of significance, an injury to the right breast was
caused by a human bite which had bled and had been inflicted
within an hour prior to death, being “’excruciatingly painful’ and
an active, aggressive bite, rather than a ‘love bite’”. It had been
agreed that the accused had caused the bite. The accused also
had injuries consistent with having been caused by fingernails.
Examination of the inside right cup of the deceased’s bra was
negative for the presence of blood, suggesting that it was not
worn after infliction of the bite.
The accused was interviewed on several occasions. He
indicated that had left her in the company of Mark.
Application
Applications under the 2011 Act were expected to arise
infrequently, perhaps once in every five years. Auld represents
the second such case where an application has been made.
Section 3 applications can be made in summary or solemn cases,
and here the application sought to rely on alleged admissions
by Francis David Auld that were made or became known of,
after his acquittal.
Section 3 (3)(a) of the 2011 Act sets out the conditions
required after the acquittal are:(i) the person admits to committing the original offence or
a relevant offence, or
(ii) such an admission made by that person before the
acquittal becomes known.
There are other conditions to be satisfied in that:- The evidence must strengthen substantially the case
against the accused and that, on that such evidence,
taken together with the evidence led at trial, it is highly
likely that a reasonable jury properly directed would
have convicted him;
- The Crown has met the reasonable diligence test; and
- It is in the interests of justice to set aside the acquittal
and authorise a new prosecution.
The court may set aside the acquittal only if satisfied that
the admission was not known, and could not with the exercise
of reasonable diligence have become known, to the prosecutor
by the time of the acquittal in respect of the original offence.
Here the Crown submitted that there were five witness
statements now falling to be admitted under this application.
These came from the following.
Daniel McDougal
This witness was an acquaintance who was not interviewed
at the time. After the murder, the accused had told him that
he had been with the deceased that night. He advised him
about Mark whom he did not know, but thought Mark must
have known him from school. Mark said “Fuck off ya wee
prick I’m shagging her.” When McDougall told him that he
should have told Mark to “fuck off” the accused had replied
Double Jeopardy and HMA v Auld
that he was not a fighter. He warned the accused that he would
get “done” with the murder, as the last person with the
deceased. The accused replied “I won’t get done with that,
I’m too cute for that”.
Alexander McCartney
He was a retired prison officer working at HMP
Longriggend. While Auld was on remand he had a conversation
which McCartney initiated regarding the charge when Auld
replied “we were just fooling about and things got out of hand”.
McCartney had reported it to his supervising officer who had
dismissed this as hearsay. It was McCartney’s duty to chat to
such prisoners to try to gauge their mood and “to determine if
they were suicidal”.
Caroline Vandeleur and Patrick Vandeleur
They were friends of the accused. After the acquittal, when
asked if he had anything to do with the murder, he had
responded by stating “that’s something that naebody will ever
know”, adding “it doesnae really matter, she was ugly anyway”.
The accused was also convicted of various offences in relation
to threatening telephone calls to them both saying “Caroline
you’re next” and “Patrick, Patrick, Patrick, you thought Amanda
was the last, well you’re next after Caroline”.
Paul McAteer
In early 1993, the accused, a passenger in his taxi, seized
the radio microphone saying “I done it, I done it, I done it”.
Decision
The Court in effect did not require to consider the conditions
though they made some comments considered below. In effect,
the statements submitted by the Crown as amounting to
admissions in relation to all witnesses except McCartney were
rejected as being capable of constituting admissions.
In relation to section 3, any statement must be such as can
fairly and reasonably be construed as an admission that the
individual committed the offence. That will vary according to
circumstances. The context in which the statement is made is a
vital consideration. That is not the case here: the evidence is
not capable of being placed before a jury in an admissible form.
It therefore cannot be said to strengthen the case against the
respondent, and is incapable of having any effect on a jury. The
remaining conditions of section 3(4)(b) and (c) thus cannot be
met. Had the statements in question been admissible
admissions, we would have had no difficulty in concluding
that the reasonable diligence test (3(4)(a)) had been met, but
that question does not now arise.
The remarks made to McDougall were not such that they
are an admission to murder. If the answer is not a categorical
denial it must be construed as an admission. That is simply
not tenable. So far as the phone calls to the Vandeleurs and
the statements in McAteer’s hearing are concerned, the accused
was already isolated in the community where former friends
had deserted him and made it clear that they now believed he
had been guilty of the offence for which he was acquitted. It is
a reasonable inference that the accused had made the telephone
calls, but against the background that they had “fallen out.”
While frightening, they were not reasonably or fairly to be
taken to amount to an admission, similarly with the incident
with McAteer amounting to “misguided, unpleasant and
immature conduct”.
The position relating to McCartney is rather different since
that could amount to an admission. Statements made by a
prisoner on remand to a prison officer could be admissible.
The overall test for the admission of a statement as for any
other statement made by the accused is fairness. The absence
of cross examination or interrogation, and the fact that the
purpose of initiating a conversation was an innocent one, are
all relevant factors, but they are far from decisive. The present
case involved a young man remanded on a charge of murder,
who was engaged in conversation by a prison officer, with the
specific purpose of eliciting a response, where the subject matter
of the conversation was the very charge upon which he had
been remanded clear legal principle that an individual in the
position of the respondent is protected from any further
investigation of the charge. Had a police officer instigated this
conversation there can hardly be any doubt that the response
would be inadmissible. The initiating remark can be viewed as
a “prompt” to speak: what else might the response be expected
to relate to but the subject matter of the prompt? The context of
this conversation robs the statement of any voluntary character.
The initiating remark constituted an encouragement to a
remand prisoner to discuss the subject matter of his remand.
That much the advocate depute accepted. He did not accept
that the remark was either intended or likely to elicit a response
relating to the charge. A prison officer dealing with a remand
prisoner, especially a young person, needs to think very
carefully about the subject matter upon which he opens
conversation. The response cannot be viewed as voluntary or
spontaneous, and is inadmissible.
Conclusion
So, in effect, the application arguably failed on the basis of
what constitutes an admission and the circumstances that any
such alleged admission was made. Usefully the position
regarding a prison officer and his role in relation to any
admission being obtained is discussed, paralleling that with
the role of a doctor. What can be said is admission will still
require to be examined both as to their content, the context in
which they are made before such evidence can be assessed as
satisfying the first test in section 3(3) of the 2011 Act.
In expressing its decision, the court did recognise that it
was “a very delicate matter [in a case] which caused great
distress to the family of the deceased, and shock within the
community”. Somewhat critically perhaps, the court confirmed
that it looked at only the evidence i.e. section 3 that the
application was based and the evidence at the trial. The court
somewhat critically added that
“It cannot be swayed by considerations of other, possibly
strengthening, evidence, [presumably DNA conceded by the
Crown as not supporting an application under section 4] which
may be in the hands of the Crown but which has not formed
the basis of an application. It is not helpful for such material
gratuitously to be included in an application such as this, where
the law is very clear that it is only in the interests of justice to
set aside an acquittal where all the conditions imposed by
Parliament have been met”. [para [66]
The standard for a new prosecution remains high. The court
has granted an application in respect of Ronnie Coulter in the
murder of Surjit Singh Chhokar.
* Gillian Mawdsley is a solicitor who writes widely on law and
justice. She is a member of the Scottish Solicitors Discipline
Tribunal and is involved in a range of judicial education, tutoring
at the Universities of Edinburgh and Strathclyde at
undergraduate and postgraduate levels
1.
[2014] HCJAC 131
2.
Case Comment, 2015 Edin. L.R. 403
3.
(MacDonald, Criminal Law, 5th edn (Edinburgh: W. Green, 1948), p.272).
4.
Scottish Law Commission Discussion Paper on Double Jeopardy (Scot Law
Com DP No 141, 2009 paras 2.30-2.37.
2016 SCOLAG (June)
Page 117