SCOTLAND’S Solicitor General is credited with ‘writing the book’ on pursuing organised criminals through Proceeds of Crime legislation, and now she has her sights set on reopening cases closed after prime suspects walked free from court.
There are few things that mark out Lesley Thomson’s first floor office in Edinburgh’s New Town as belonging to Scotland’s most powerful female prosecutor. The rows of red leather books may reveal its occupant, Scotland’s Solicitor General, is a student of the law – quelle surprise. Otherwise it gives little away – much like the woman herself.
While impatiently posing for The Scotsman photographer – and chastising those around her for not cracking jokes to break the tension – she rearranges folders to make sure their titles are hidden from sight.
Her innate caution has been carefully honed in a career spent one step ahead of Scotland’s criminal elite.
This is the woman who, according to her colleagues, wrote the book on “proceeds of crime”, the tool used to strip organised criminals of their illegal profits. The Scottish Crime and Drugs Enforcement Agency believes the power is more effective at tackling Scotland’s Mr Bigs than sending them to prison. Last year, more than £12 million was seized through proceeds of crime, taking the total to more than £42m. Since then that figure has been boosted further by more than £4m seized from vessel masters caught up in the “black fish” fraud scandal.
Now, in her position as second-in-command at the Crown Office, one of her many portfolios is double jeopardy. It is a mammoth task potentially reigniting any case that has resulted in a “not guilty” or “not proven” verdict from the past 60 years – at least one cold case currently under review dates back to the 1950s.
The Scottish Government’s Double Jeopardy Act 2011 means prosecutors can try people twice if significant new evidence came to light. One case is expected to reach court by the end of 2012, but the Crown Office will not say which.
“What happened in November last year was the launch of the cold case unit and the homicide database,” says Thomson. “That was partly for cold cases but also with an eye towards what was happening in regards to double jeopardy. That was always going to contain double jeopardy as well. At that time, working with police, it was decided to prioritise a group of cases without naming them.”
However, some cases being re-examined are known. The Crown Office has confirmed it has asked police to reinvestigate the murders of Surjit Singh Chhokar, Amanda Duffy and World’s End victims Christine Eadie and Helen Scott.
The Lockerbie investigation has also been linked to double jeopardy, although Ms Thomson will not be drawn on this as it is a live investigation.
If the Crown seeks to bring charges against Al-Amin Khalifa Fhimah it will need to do so under double jeopardy, because he has already faced one trial where he was found not guilty and acquitted of 270 counts of murder in the Pan Am Flight 103 bombing.
However, if the Crown Office goes after other individuals, who have not previously faced prosecution for the terrorist atrocity, they will not need to rely on double jeopardy.
What Thomson is keen to stress, however, is that the Crown Office saw double jeopardy coming and had been preparing for the legislation which was introduced in November last year.
“There was already work being done about how we go about an old investigation,” she says. “There was a lot of thinking about how we would run that in parallel with current investigations.”
The Crown Office started building up a file of potential cases, which might qualify for a second prosecution. “One of the difficulties with double jeopardy is we don’t have a list anywhere, because [previously] these cases were final,” she says. “That was the end of the matter. It became a different exercise to try and ascertain which double jeopardy cases should be looked at first.
“We welcome people pointing us in any direction. Family members, MSPs, the media – that’s all welcome,” she adds.
It is something of a one-way street, however.
The Crown Office is keen to elicit leads and witness statements from the public, but does not want to divulge information on cases for fear of spooking suspects into fleeing the country.
Thomson’s favourite mantra is that they are doing everything in relation to cold cases that you would expect police and prosecutors to do in a modern investigation into a crime.
That includes, for example, scanning Facebook and Twitter to see if people who have been acquitted have subsequently confessed online.
“I’m not going to confirm publicly, but I am always concerned about people who have been acquitted and then go on to boast about it,” says Thomson.
It is expected that advances in forensic science will be key to launching successful double-jeopardy prosecutions, and police have been checking crime scene exhibits in cold cases to see how well preserved they are.
Forensics may prove to be key to the World’s End case, should Angus Sinclair stand trial again.
The fact that evidence collected at the time of the murder of two girls after a night in an Edinburgh pub, 35 years ago, can be re-examined today is down to the foresight of Lester Knibb, who worked in forensics for Lothian and Borders Police at the time. Tom Wood, former deputy chief constable of the force, says: “He carefully guarded all the forensic samples from World’s End and made sure they were all kept. It’s his legacy.”
Knibb was a visionary, protecting evidence for DNA techniques which had not been invented. Not all investigations were handled in the same way.
“The position is that we found differences [as to how well evidence had been preserved] on a case-by-case basis,” says Thomson. “The expectation is that you are not going to find what you would in an open case. But we’ve had some good surprises about what has been kept.”
But if the importance of forensics was widely known, prosecutors are also encouraged by the number of witnesses prepared to talk now when they previously would not. “Yes, there have been new witnesses in relation to a number of cases,” says Thomson. “That would be our hope, or expectation, as we start to look at those cases. Attitudes to things change. Relationships change. People who were not willing to speak out at the time are now willing to come forward. People are no longer friends – that information is able to be obtained.”
It is also highly likely that covert investigations and surveillance are being used to gather new evidence, but as ever Thomson will not be drawn, returning to the modern investigation mantra.
“There’s also the type of profiling that you would not have done previously,” she says, “whether it’s profiling a suspect and how they commit their crimes, or a criminologist profiling a type of crime. I think you can assume anything that police would do in a modern investigation.”
One thing prosecutors are clear on is their responsibility to relatives still waiting for justice after years or even decades.
“If you think about double jeopardy as involving families who have been through the first process, with an outcome that was not expected – for those families that is a heavy burden taken really seriously by prosecutors and police in the way they approach this work,” Thomson says.
“It’s important that we do absolutely everything we can to ensure that these cases are taken forward, and it is not as a result of lack of investigating by police or the Crown if it results in an unsatisfactory outcome.
“Families involved in double jeopardy are really positive about the process. It gives them hope of a resolution in a case that was not there before.”
And she is convinced their confidence is well-placed after seeing her own belief in the potential of double jeopardy laws grow in the last nine months.
“I think our message is, in these unresolved cases, the Crown is going to use all the powers under the legislation, and all investigative techniques, to make sure no-one ultimately escapes the outcome of their actions,” she says. “We’re feeling more confident about the legislation than we were at the start, about what’s coming out of it, because of a combination of factors.
“Not really because of the amount of evidence kept – but we’ve had some nice surprises in that – but new witnesses from people’s changing circumstances.”
Tough test for a return to court
NEW laws which came into force towards the end of 2011 did not remove double jeopardy – where someone cannot be tried more than once for the same crime – but rather created a number of exemptions.
One key exemption is where compelling new evidence emerges, such as DNA or a new witness, that substantially strengthens the case against an accused.
However, prosecutors admit it is harder to justify bringing a case under the 2011 act, than it would be to bring one normally. That means the test a judge would apply to the quality of the new evidence against the accused will be tougher than the test the prosecution service itself applies to a case passed to it by the police, before deciding whether to take it to court.
It is, therefore, unlikely that dozens of cases based on the new law will arrive back in court, but a small handful of the most serious are likely to be reopened.
Other exemptions include where an original trial was tainted, such as through intimidation of a jury member.
Prosecutors could also apply for a new trial if evidence comes to light that the acquitted person has later admitted the offence.
And a person could also be prosecuted again, on a more serious charge, if the victim dies.
For instance, if someone is convicted of a serious assault while the victim is in a coma, they could yet face a murder charge if that person subsequently dies of their injuries.
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