A retrial like no other: The twists and turns in the Nat Fraser case

RETRIALS have become a familiar feature of the Scottish criminal justice landscape since their introduction 30 years ago, but none has been so high profile as the Nat Fraser case, or played out to the backdrop of a huge political storm.

The decision by the Supreme Court in London last year that Fraser’s original trial in 2003 had been unfair was met with deep hostility by Alex Salmond, the First Minister, and Kenny MacAskill, the justice secretary.

Their criticism of, as they saw it, unwarranted interference in Scots law by a court south of the Border was such that Fraser’s lawyers argued that he could not possibly receive a fair trial second time around because so much prejudice had been created against him. Everyone would take from the comments by the politicians that Fraser was guilty, it was said.

The plea fell on deaf ears, however, and the Court of Criminal Appeal in Edinburgh sanctioned a retrial, in full knowledge that it would be a retrial like no other.

Much of the evidence, of course, remained the same, although it took great effort to tease some of it from dimming memories. “I can’t remember,” is one of the most common phrases heard from the witness box, and not always spoken with total honesty. Here, people were being asked about events from 1998, and they could be forgiven for struggling to recall what had been said by whom, where and when.

Rarely have police statements, given at the time, been relied on so heavily to refresh memories. And thanks to the approach adopted by the defence, witnesses could also be referred to the evidence they had given at the first trial, to cast light into dark recesses of the mind.

Fraser’s lawyers recognised from the off that it would be pointless to try to conceal from the second jury the fact that there had been a previous trial. Often in retrials, lawyers on both sides and the judge will go to extraordinary lengths to keep up the pretence that this is all new to everybody. The theory is that if a second jury knows that another jury has already found the accused guilty, and he has been given a retrial on some appeal point, then the fundamental principle of the presumption of innocence is diluted.

Here, how could you ever find 15 potential jurors in Scotland who knew nothing of the Nat Fraser case? The details might have been sketchy, but the intense media coverage at the time of the disappearane of Arlene Fraser in 1998, her husband’s conviction in 2003, and the political fall-out in the wake of the Supreme Court’s judgment in 2011 meant this was a case fused into the psyche of the Scottish public.

The defence team was quick to bring out into the open that in 2003, Fraser had sat in the dock initially with two other men, Hector Dick and Glenn Lucas, now deceased, charged with murdering Fraser’s estranged wife. During the trial, the charge was dropped against the others and they were freed. Dick became a crutial witness for the prosecution against Fraser, and Fraser was duly convicted.

The full story of what happened thereafter was not spelled out, but enough was said for the jury to understand that Fraser had pursued an appeal, that it was to do with Arlene Fraser’s rings, and the upshot had been the current, second trial.

The full account is that, at the first trial, the Crown’s case was that Fraser had hired a hit-man to strangle his wife so he would not have to pay her a costly divorce settlement and to ensure she would never be able to start a new life with someone else.

Hector Dick’s evidence had been vital. He said Fraser had confided in him about paying a killer, and he claimed Fraser had admitted burning the body and crushing and scattering the remains.

But the cornerstone of the Crown case was the discovery of Mrs Fraser’s engagement, wedding and eternity rings by a member of the family on 7 May, 1998, more than a week after she vanished, on a dowel of a shelf in the bathroom of her home in Smith Street, New Elgin, Moray.

The rings had not been there when the house was searched on 29 April, the day after Mrs Fraser’s disappearance, and the prosecutor at the trial, Alan Turnbull, QC, now the judge, Lord Turnbull, had submitted that Fraser put the rings on the dowel, showing he had had access to the body. He argued that the placing of the rings in the house had been an attempt to make it appear that Mrs Fraser had decided to walk away from her life.

The jury bought in to the theory, and convicted Fraser, who was jailed for life and ordered to serve at least 25 years in jail.

But in preparing for an appeal by Fraser, the Crown made a dramatic discovery. A policeman, Neil Lynch, now retired from Grampian Police, had given a statement during preparations for the 2003 trial in which he had said that he saw rings in the bathroom on the night Mrs Fraser went missing. The statement was left on the desk of the procurator-fiscal in Elgin, then David Dickson - he later said he had not seen it - and the information about the early sighting of the rings was neither followed up nor disclosed to the defence. Indeed, Mr Turnbull had been unaware of it, and he confessed that if he had seen the statement he “would have fainted” and had the trial halted.

The revelation about the sighting led to an inquiry by Catherine Dyer, area procurator-fiscal for Glasgow, and Richard Gray, deputy chief constable for Strathclyde, and the release of Fraser from custody pending an appeal. A second police officer, Julie Clark, said she, too, had seen rings on the first night.

Fraser’s appeal was heard over four weeks in November/December 2007. His lawyers did not claim there had been a cover-up but “extraordinary incompetence” by the prosecution over the sightings of the rings. The Crown issued a full public apology for a “deeply regrettable state of affairs” and promised that procedures had changed, but insisted that Fraser’s conviction should stand. It argued that there remained a compelling body of evidence that Fraser had been guilty of instigating the murder of his wife.

At the end of the hearing, the appeal judges, Lord Gill, the Lord Justice-Clerk, and Lords Osborne and Johnston, decided they wanted time to consider their ruling but gave the broadest hint as to which way they were thinking by revoking Fraser’s bail. He had been at liberty for 19 months.

The ruling was given in May 2008 and, as expected, it went against Fraser. The court noted that the Crown’s case was actually stronger with Mr Lynch’s statement than without it, because it could back an allegation by Hector Dick that Fraser had told him he had gone to the house the first night and “tidied up to clear any evidence.”

Fraser’s lawyers sought leave from the Edinburgh court to appeal to the Supreme Court in London. Leave was refused, but it was possible to apply directly to the Supreme Court for “special leave” and an application by Fraser was granted.

The Supreme Court held that the Edinburgh court had not taken the correct approach to Fraser’s appeal, and it ruled that the Crown’s failure to disclose the early sighting of the rings to the defence had breached Fraser’s right to a fair trial under the European Convention on Human Rights.

Lord Hope, deputy president of the Supreme Court, said that disclosure of the material would have opened up lines of cross-examination which were never pursued by the defence.

“It would also have materially weakened the Crown’s attack on (Fraser) that he had no explanation to give for bringing the rings back to the house on 7 May, and the theory that he had retrieved them from Arlene’s dead body. He would not have had to provide an explanation if, as the evidence of Lynch and Clark suggested, the rings were in the house all along,” said Lord Hope.