End of the world

Published on Sunday 16 September 2007 01:23

ON HIS journey to and from work this past year, Alan Mackay's thoughts were probably never far from two isolated spots near to his East Lothian home. The bodies of Helen Scott and Christine Eadie, both 17, had been found some four miles apart almost 30 years ago, the former in a field of stubble near Haddington, and the latter on the foreshore at Gosford Sands. Both had been bound and raped before being murdered.

It was sheer coincidence that the man chosen by the Crown to prosecute serial rapist and killer Angus Sinclair for the double murder lived in Longniddry, within a few miles of both locations. But that coincidence might well have made it impossible for Mackay to leave his work entirely behind him in the Crown Office this past year, even when sitting quietly at home with his family.

Having been given the task last October of delivering justice at last in Scotland's most high-profile unsolved case, Mackay, according to colleagues at the Bar, felt the burden of expectation on his shoulders. "You feel it all the time as a prosecutor," said one former colleague, "but especially in a murder trial. You feel a duty to the victims' families and to society in general. A 30-year-old double murder of two respectable teenage girls is off the scale in terms of pressure."

This weekend, with the World's End case in ruins after the trial was halted by the judge, Mackay's handling of the prosecution is under scrutiny. The talk of the legal world is how the 45-year-old lawyer did a bunk when he realised the case was crumbling before his eyes.

On the day he and his colleagues expected the judge to bring the case to a close, Mackay had travelled into Edinburgh as normal, but with a heavy heart. Clearly anticipating what was to come, he had not been able to face taking up his position in the well of the court and instead boarded a train to the northwest of England.

For a few hours, he was regarded by police as a missing person and there were genuine fears among some lawyers that he had taken the failure so hard that another tragedy could not be ruled out. A few hours later, however, he called his wife to say he was all right but "needed some time". He was clearly devastated by his failure to secure justice for Helen and Christine and their long-suffering families. But regardless of the reasons, his disappearance struck a chord with every middle-aged and over-stressed professional who has been tempted to head for the hills when the pressure - or the boredom - simply becomes too much to bear.

So who is Alan Mackay? Why did Scotland's most infamous unsolved murder case go so disastrously wrong? And is there now no chance of justice for the families of Helen Scott and Christine Eadie?

"Alan is a decent, serious guy," said a former colleague. "He chuckles a bit, but he's not exactly happy go lucky. He's not the type to have lots and lots of friends but he is liked and respected. He's not a bit flippant like some of his colleagues in the Crown Office."

An advocate depute since April 2003, Mackay was promoted and given senior rank as a prosecutor in the Crown Office in January 2005. Unlike many of his colleagues, who sign up for three years of public service just to have it on their CVs, Mackay had told colleagues he was fully committed to working for the Crown and had no intention of returning to private practice and defence work. "That is a rare creature at the Scottish Bar," said one senior lawyer. The word often used to describe him, perhaps with faint praise, is "competent".

"Although he was prosecuting by far his biggest case, none of his fellow prosecutors can really recall him seeking any significant support for himself," said one colleague.

When the trial began, there was little outward sign that Mackay was anything other than confident. The case had been set down to run for six weeks, but at the outset he told Morain Scott, Helen's father, it wouldn't last that long. "We'll have it wrapped up in a fortnight," he said. Detectives, some of whom had worked on every aspect of the case for decades, were astonished to hear that. Some police officers felt it was a "lacklustre" prosecution, that the fine detail of evidence was not thoroughly examined.

Those who know Mackay well said neither interpretation is correct. "Complacency is not in his nature," said one insider, "and his commitment to all his cases is never in question. He wouldn't cut corners on a serious assault, so he certainly wouldn't have done it on that stage."

It is no exaggeration to say, however, that when he brought his case to a close after just nine days of evidence, there was absolute astonishment from the police. They believed a number of crucial chapters of evidence had hardly been touched upon.

Their worst fears were confirmed a few days later. On Monday last week, against all the initial expectations, the mystery of the World's End murders - so-called after the pub in Edinburgh's High Street where the girls were last seen alive - came to the most unsatisfactory conclusion imaginable.

Sinclair, suspected of acting with his brother-in-law Gordon Hamilton, now deceased, in ending the lives of Helen and Christine, watched as his defence team headed by Edgar Prais QC made a submission of no case to answer. Despite his semen being inside both girls and a mass of other evidence against him, Sinclair was controversially cleared by Lord Clarke, who judged that the Crown had failed to produce a case that could be put to the jury. Mackay was not in court to hear the verdict.

In the days since the collapse of the case, much attention has focused on Mackay's handling of it and in particular the crucial evidence he chose not to put before the court.

Lothian and Borders Police had kept forensic evidence from the murders in exemplary fashion. If Strathclyde Police had been as rigorous, said legal insiders, Sinclair probably would have been facing five or six murder charges. But forensic samples from three of the four Glasgow murders that carry his signature from June to December 1977 have been lost. There was no significant forensic evidence from the fourth.

In 1977, DNA was as unknown as the internet. But many forensic experts had the foresight to preserve crime scene material in the hope of scientific advances. Two decades later, DNA profiling produced a strong reading for Gordon Hamilton, but it would be another seven years until a clear profile would identify Sinclair, and this would come from stains found on Helen's coat.

Sinclair, having been told by his legal team that his DNA was on the bodies of the girls, had lodged a defence that if he had had sex with both girls it had been consensual.

The Crown had to prove Sinclair used force or violence against the girls to hang the murder charges on him.

Detectives sat anxiously waiting for the smoking gun they knew must come. DNA evidence had been obtained in 2004 from the ligatures used to strangle both girls, items of their own clothing. Forensic experts had tested the ligatures and untied the knots in the stockings and tights that had been turned into murder weapons. Each ligature contained three sets of DNA. Flakes of skin containing DNA bands that were unique to Hamilton and to Sinclair emerged, as well as DNA belonging to the girl who had worn each pair of tights. This ought to have been the clincher, conclusive proof that Sinclair had been involved in restraining them, shattering his defence of consensual sex and enabling a jury to infer that both men had been responsible for the deaths.

But this evidence did not materialise. On the day before he concluded his case, Mackay introduced evidence relating to the ligatures. But Prais raised an objection, and the reports were hurriedly taken from the jury. Prais was unhappy that a forensic expert, Jonathan Whitaker, was to give evidence about the DNA extracted from the ligatures. Prais pointed out he had not been the expert to extract the genetic material from all the ligatures and those who had done that work should talk about it.

Police contacted the experts who had conducted the work and they were soon available to give evidence. But when Mackay was allowed to resume, he didn't call them and the jury did not hear this crucial evidence.

If there was a single moment that broke Mackay's heart it must have been when Prais underlined the failure to introduce the smoking gun. "If there had been DNA on a ligature, something of that nature, I don't think I could stand here."

Colleagues at the Bar were glad to see the Lord Advocate Elish Angiolini QC and Solicitor General Frank Mulholland QC publicly back Mackay when the former addressed the Scottish Parliament on Friday. But while her backing was unequivocal in the sense that she insisted she defended his discretion to prosecute as he saw fit, she stopped short of saying she would have done the same thing herself.

While none of Mackay's fellow advocates wish to pillory him, many are also searching for answers.

"There has been a suggestion that Alan might have felt unwell or have been affected by some personal trauma and therefore failed to understand that he could still introduce the evidence," said one advocate.

The Faculty of Advocates, a gossip-ridden place where reputations are routinely traduced, is this weekend more concerned about their colleague's wellbeing. "Our hearts go out to him and we hope he can recover and get back to work," said a colleague.

"If it was a mistake, he should be forgiven and encouraged to get back to what he does very well. We all make mistakes. No one will regret it more than he does himself."