A Crown application to prosecute anew a man acquitted of murder nearly 25 years ago has been refused.
The application was based on alleged admissions which were made or became known after the date of acquittal, but the Criminal Appeal Court refused the application, made under section 3 of the Double Jeopardy (Scotland) Act 2011, after ruling that alleged comments did not constitute admissions or were “inadmissible”.
The Lord Justice General, Lord Carloway, sitting with Lady Dorrian and Lord Malcolm, heard that in 1992, at the High Court of Justiciary in Glasgow, the respondent Francis Auld stood trial for the murder of Amanda Duffy, but the jury, by a majority, found the charge against him “not proven”.
However, the Crown sought to set aside the acquittal and grant authority to bring a new prosecution against the respondent.
The advocate depute said Daniel McDougall, a friend of the respondent, had told him a day or two after the murder that he was not the last person to have seen the deceased and that it was a man named “Mark”, but in response to a suggestion that if he could not prove that he would get “done” with the murder, the respondent replied “I won’t get done with that, I’m too cute for that”.
Prosecutors also wanted to rely on evidence of the respondent’s former girlfriend, Caroline Vandeleur, who asked him “did you have anything to do with that lassie’s murder?” to which the respondent replied “that’s something that naebody will ever know”, adding “it doesnae really matter, she was ugly anyway”.
She also said that during the course of a telephone call a male voice, who she believed to be the respondent, said to her “Caroline you’re next”. Shortly after that call, Patrick Vandeleur received a call in which a male voice said “Patrick, Patrick, Patrick” and “you thought Amanda was the last, well you’re next after Caroline”.
There was further evidence from a taxi driver Paul McAteer, the manager of the band of which the respondent acted as a “roadie”, whose affidavit stated that in early 1993, the respondent, a passenger in his taxi, seized the radio microphone saying “I done it, I done it, I done it”.
Finally, the Crown sought to rely on a statement from Alexander McCartney, a prison officer who spoke to the police in 2012 after investigators learned that he had information which could help their case.
Mr McCartney claimed that when the respondent was on remand HMP Longriggend in Lanarkshire in June 1992, they had a conversation which the prisoner officer commenced by saying “it’s quite a heavy charge you’re in for,” to which the respondent replied “we were just fooling about and things got out of hand”.
The Crown averred that the evidence “substantially strengthened” the case against the respondent and that, on that evidence, taken together with the evidence led at trial, it was “highly likely” that a reasonable jury properly directed would have convicted him.
The advocate depute also averred that they had met the “reasonable diligence” test, and that it was “in the interests of justice” to set aside the acquittal and authorise a new prosecution.
But the respondent denied that any of the statements were made, but in any event, argued that the statements were “too ambiguous” to be construed as admissions.
It was submitted that the words uttered “must be capable of being construed as an admission of involvement in the actual commission of the crime charged” and comments which may seem “callous or indifferent” to the fate of the victim or even showing approval of what has happened “cannot be construed as admissions”.
The comment “I won’t get done with that, I’m too cute for that” was manifestly not an admission, as it was made against the background of a “clear and unequivocal exculpatory statement”, it was argued.
Esto the statement to Mr McCartney was admissible, it did not constitute an admission.
Delivering the opinion of the court, Lady Dorrian said: “In the case of the confrontation of the respondent by Caroline Vandeleur the response cannot be construed as an admission. She reports asking him ‘did you have anything to do with that lassie’s murder?’ but the response ‘that’s something that naebody will ever know’, is not an admission, and the gratuitous insults added thereafter, whilst they may indeed be cruel and ungenerous, cannot alter the character of what went before. None of the remaining statements involve confronting the respondent with the allegations.
“It is important to recognise that the context in which the remarks to McDougall were made was that the respondent had made a clearly exculpatory statement to him, indicating that he had not been the last person with the deceased, the individual named Mark had been. In the context in which it was made, it is simply not possible to attribute to the respondent’s remark the character of an admission of murder.”
The same reasoning which applied to the conversation with Ms Vandeleur applied to the incident with Mr McAteer.
She continued: “These remarks and the phone calls seem to fall more into the category of misguided, unpleasant and immature conduct. Having regard to the whole circumstances in which all these statements were made, we do not think they can reasonably and fairly be construed as admissions.
“The position relating to McCartney is rather different. In our view the comments made to him could be construed as an admission, even without the addition of the words in the statement which are not referred to in the affidavit, because the context was one in which the charge upon which he had been remanded was specifically referred to.”
However, the judges held that the statement made to the prison officer was inadmissible.
Lady Dorrian said: “It is obvious that any response to this opening gambit would be likely to relate to the same subject matter, namely the charge against him. 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. Here, he went straight to the charge which the respondent was facing. The response cannot be viewed as voluntary or spontaneous, and is inadmissible.
“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 judges also ruled that because the DNA evidence from the original trial had now been destroyed, the Crown could not bring Mr Auld to court for a second time.
She added: “In reaching its decision the court is acutely conscious that this is a very delicate matter. The case is one which caused great distress to the family of the deceased, and shock within the community. The court must look at the evidence upon which the application is based, and the evidence led at the trial. It cannot be swayed by considerations of other, possibly strengthening, evidence, which may be in the hands of the Crown but which has not formed the basis of an application.
“It is a matter of concern that DNA evidence of such a kind is referred to in the application, when, as the advocate depute frankly conceded that a decision had been taken that this material could not support a new evidence application under section 4 and requires to be left out of account. 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. In this case they have not, and the application must fail.”