FAULTS IN THE SCOTTISH SYSTEM OF JUSTICE.

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FAULTS IN THE SCOTTISH SYSTEM OF JUSTICE.

There have been several major reforms in the English judicial system in the past fifteen years. Scotland however, has a separate system altogether - with different rules of evidence and different precedents on cases. Reform has come slow, though the obvious benefits of the changes in the English system have brought about some small changes.

Oddly, there is a myth that the Scottish system is better than the English system. English solicitors envy their Scots colleagues being able to interview policemen on the case before trial - using the system of "precognition". What's more, the forensic evidence they receive should be more reliable. Scots forensic experts always work in pairs - so the examination by one can be checked against the other.

The investigation of a case is overseen by a lawyer - the Procurator Fiscal. He and the investigators - the police - work to different masters. The popular image is of a Fiscal who personally supervises each case and decides whether a prosecution should proceed.

The Scottish system has supposedly safer rules of evidence. Any alleged "confession" must be supported by independent corroboration - otherwise the case cannot be tried. Furthermore, Scots juries can return a verdict of "not proven" when there is reasonable doubt - but some lingering suspicion. Many English lawyers believe that this allows the Procurator Fiscal to continue investigation against a suspect even when a case has not survived the test of the courts - not so.

Verdicts in Scotland can be reached on a simple majority of the fifteen person jury. Each individual jury member can therefore vote as he or she thinks right - without any undue persuasion in the jury room. They may do this from their own memory of the facts as presented, the judge does not have a duty to make a summing-up of the factual evidence as in English courts. Many do, but many do not.

That is, in part, the theory - but the Beattie case shows the sad state the Scottish system can fall into. One emerging suspicion is that the Scots continue to persecute him because they fear the consequences of a proper review of his case. It might well show them up - and their system.

Much of the case proving Beattie's innocence was in the post mortem - but the report presented to the defence was woefully inadequate. Although there were two pathologists, only one of them did the actual examination. The other wrote up the notes - a job that a trained secretary could have done instead of one of the nation's leading pathologists. As it was, those notes were vague on a key point - the contents of the victim's stomach. The system used by some English pathologists - and particularly their American colleagues - would have been far better - and less wasteful of manpower.

The police investigation of the murder was a mess. The team was ill-informed and uncoordinated. Beattie was given a 'guided tour' of the scene of crime by two officers. He was then accused of the murder by two other detectives because he told them details of the scene of crime which they thought were known only to the police!

Beattie actually knew details that even the murderer could not have known. Even though we have seen some outrageous behaviour in English Constabularies, it is hard to imagine that such a stupid error could occur there.

Beattie was interrogated until he vomited. He then told a desperately ridiculous tale that he had seen men with top hats with mirrors doing the murder. His description of these 'murderers' was actually based on the outfits of a well-known pop group, "Slade" that he had seen on TV on the evening of the murder. Yet no one in the court made the connection.

The judge compounded the error - he allowed this ridiculous admission to go to the jury because it was "capable of being a confession". No statement of this nature would be so regarded in an English court.

The famed Procurator Fiscal took no part in any of this. In murder cases they have little say. Beattie was taken down to the scene of crime without a solicitor - and after being charged he was persuaded to put himself into greater jeopardy. The officers doing this must have passed by the Fiscal's house in Lanark - but no one brought him into the case. In fact the Procurator Fiscal did not believe Beattie to be guilty. However, his role was little more than a postman between the police and the Crown Office in Edinburgh.

Beattie never confessed to the crime, but "corroboration" of his admission was produced in the form of a tiny speck of blood on a tissue handkerchief. It matched some of the victim's blood groups - but was also common to about half the local population. Even the provenance of this tissue, apparently from Beattie's pocket, was suspect. The jury was allowed to decide whether this could be 'capable of being corroboration'.

They thought it could. The truth was that it could never be corroboration. But that important truth did not emerge because vital prosecution evidence had not been disclosed. Evidence that the blood on the tissue was definitely not that of the victim was deliberately withheld from the defence - and never reached the court or the jury!

How could Beattie's solicitor allow the case to get to such a state - particularly when he had the power to take 'precognitions' from the prosecution witnesses, including the police witnesses, before the trial?

In fact the power of "precognition" is illusory. Witnesses can refuse to give precognitions - they can avoid them, they can be obtuse in them. They can even get away with lying in them. In the Beattie case one officer's precognition was directly contrary to his evidence in court - but Defence was not allowed, by law, to use the evidence of the precognition against him in court.

The key witness, the police officer who headed up the investigation, Chief Superintendent William Muncie, avoided giving a precognition altogether. In theory the defence solicitor could have obtained a warrant from the Sheriff Court to take the precognition on oath. In fact he would have had to provide such strength of evidence to show 'just cause' both to the Sheriff and to the Legal Aid Board that the reality of obtaining such a statement did not exist.

So, far from being able to test the evidence before it came to court, Beattie's lawyers actually went into the trial with very little idea of what the prosecution witnesses might say. In England they would at least have had the police statements - which cannot be especially framed to mislead the defence. In America they would have had depositions or grand jury evidence.

Beattie's lawyers were duped. Chief Superintendent Muncie, was guilty of not disclosing evidence and of contempt of court. During the trial he implied that a particular knife had blood on it when no blood had been found. He implied it was the murder weapon when he knew it was not. He instructed one of his officers to cover up the existence of a notebook that could have cleared Beattie. Perhaps he would not get away with it so readily in Scotland today - but the Scottish Appeal Court is still not likely to take such evidence of past misconduct into account as the current English Court of Appeal would.

Although George Beattie was framed, lied against, cheated and mistreated, he stayed in jail - even when all this was revealed.

Scotland has no general rule of disclosure of evidence at all. The reality is, and will no doubt remain, that prosecution in Scotland give only what they think is "proper" - out of simple charity. Defence is frequently left in the dark - and deceived as in the case of George Beattie.

Even non-disclosure of evidence which could prove the innocence of the accused will not be regarded by either the Crown Office or the Appeal Court in Scotland as grounds for a fresh look at the case. At Beattie's appeal in 1994 a vital forensic science document on serology was discovered. Chief Inspector Muncie had covered it up two twenty years before. The skullduggery involved in this was passed over without comment.

The Department of Public Prosecutions in England would not take such a view. Nor would the English Court of Appeal - nor any American Court of Appeal. . That the undisclosed serology evidence in the Beattie case was capable of actually proving his innocence makes the contrast between the two systems even more sharp.

The jury took just 35 minutes to find Beattie guilty - and the rumour emanating from the room was that it was on a 7 - 8 majority. An English jury, under less pressure to jump to a rash decision, might well have worked out over several hours of discussion that there was something badly wrong at the heart of the prosecution case. No doubt some jurors now repent at leisure over the fate of George Beattie. American jurors may well have told us why such a decision was formed. Scottish jurors can hide their shame beneath their anonymity.

The Scottish jury had heard a summing up from the judge. This judge decided to sum up the facts - as in an English court. But he did not clarify what he must have known - that the main police witness on the case had misled the jury on an important matter of fact concerning the supposed murder weapon. Most of the summing up was devoted to major questions of law - the judge did not mention such minor points of evidence as supposed murder weapons. His summing-up gave Beattie less protection than he would have in other legal systems.

He mentioned a 'not proven' verdict twice - but gave the jury no idea of the level of evidence which would merit such a verdict. The perverse decision of the jury in the Beattie case may have been reached because they did not understand the system they were operating within.

The case for Beattie's innocence does not rest on the failures of the Scottish system to give him justice. There is ample evidence ( from prosecution witnesses!) that the victim was murdered several hours later - when Beattie was completely alibied. Someone got away with murder.

With all the many faults in the investigation, the trial and the appeal, the Beattie case stands as an indictment of the entire Scottish system - particularly because that system cannot bring itself to correct even this most obvious miscarriage of justice.

The errors and cover-ups go even further. The offices of both the Solicitor General for Scotland and the Crown Agent have at different times issued misleading information about the case which have caused some 15 years delay in dealing with the matter. There is an air of self-defence and vindictiveness in the air. Now they refuse to follow-up the vital new evidence in the policeman's notebook.

THE VOICE OF JUSTICE FROM THE GRAVE.

When the Court of Appeal considered Beattie's case in 1994 it had a problem because the judge at the 1973 appeal had got several important facts wrong. In particular he said that Beattie had given evidence at his trial ( he didn't) - and had repeated the story about the men with top hats and mirrors. Beattie denied he ever told this story to anyone - he said the police made it up.

As a means of correcting this remarkable error, the 1994 Appeal Court decided to treat the appeal of George Beattie as if the appeal had taken place in 1975, after the Criminal Procedure Act of that year. Why they chose the 1975 situation instead of the 1973 situation remains unclear.

It took a certain leap of the imagination to treat the appeal in this way, for, although it may be relatively easy to now interpret the law as it stood in 1975, each era has an atmosphere which is unique to that moment in history. The seventies were not the same as the nineties; and interpretations are usually affected by the prevailing mood of the period in which they are made.

In my files I already had a good basis for assessing how Beattie's appeal might have gone in 1975 - as the 1994 Appeal Court chose to place it. In 1983 I obtained the opinion of a distinguished Lord of Appeal of that period.

Lord Kilbrandon was a Lord of Appeal from 1971 to 1976. He was called to the Bar in 1932 and became Dean of the Faculty of Advocates in 1957. In 1965 he was made chairman of the Scottish Law Commission. He died in 1989 after a distinguished career during which he was chosen to be Chairman of the Royal Commission on the Constitution. This was a man of immense wisdom who shaped the Scottish nation as well as interpreted its laws.

In 1983, before I had made any investigation into the Beattie case, I submitted the trial transcript to Lord Kilbrandon for an opinion. He was therefore in the exact same position that he would have been in 1975 as a judge in the appeal court - if Beattie had been granted an appeal at that time.

Lord Kilbrandon produced a long and detailed and balanced report. " I am bound to come to the conclusion," he summarised, " that Beattie should have been acquitted."

At that time I pointed out to Lord Kilbrandon that evidence would need to be obtained that pointed positively to Beattie's innocence if the Secretary of State were to refer the case back to the Court of Appeal. My objective in asking for his report was to evaluate where investigation was necessary to get that evidence. Lord Kilbrandon did not think there was sufficient evidence on his reading of the trial transcript alone to prove Beattie's innocence. However, this Lord of Appeal who actually sat in 1973 and 1975 was adamant that there had been a wrongful conviction.

" The weight of circumstantial evidence strongly favours Beattie's case," Lord Kilbrandon wrote in his report. " This is nearly always the best kind of evidence, as it certainly is here. I won't particularize the witnesses, but there is unequivocal and convincing evidence that within a short time of the struggle, in which the assailant inflicted 19 stab wounds on the victim, Beattie was seen by unimpeachable witnesses, who knew him well, and who saw nothing exceptional about his demeanour or his appearance. It is to my mind almost incredible that he could so recently have been engaged in the activity I have described. I cannot understand why he was not extensively blood-stained and noticeably agitated. But there is stronger evidence that that."

He continued with an examination of the forensic evidence which has formed much of the background of Beattie's two appeals. He was particularly impressed by the lack of any trace evidence on Beattie. " Evidence, even negative evidence, of this character is much more satisfactory than conclusions attempted to be drawn from accurate and close-fitting estimates of time and place."

And he was also concerned about a total lack of evidence that Beattie had ever had a knife. " Where did Beattie get the knife?" he wrote. " It was a 'carving knife or a butchers knife'. There is no evidence that Beattie was in the habit of carrying such a knife, and if he was not, he would not have had it in his possession when he left home, because it is fanciful to suppose that he made up his mind, on that evening, to stab some random person, who turned out to be Margaret McLaughlin."

Particularly interesting was Lord Kilbrandon's comment on the bizarre story Beattie was alleged to have told the police - that six men with tops hats and mirrors had done the crime, making him watch.

" Such an incident could not have taken place without some traces of the gang being found. Probably the whole incident, as an actual happening, can be ignored."

If Beattie had come before the appeal court in 1975, he might well have had his case heard by Lord Kilbrandon. The report Lord Kilbrandon gave me is a good idea of the kind of judgement he would have made of the case in 1975. And his opinion is unequivocal - this eminent Lord of Appeal in 1975 said that Beattie should have been acquitted.

The 1994 Appeal Court decided that the 1975 Judges would have dismissed Beattie's appeal. The 1994 court was wrong.

Peter Hill

THE BUNGLE IN THE GLEN.

At the very start of the investigation of the Carluke murder case, the police allowed evidence that Beattie was not the murderer to simply vanish into thin air. They covered up the exact time of finding the body.

The official story at the trial was clear - on the evening of Friday 6th July 1973 Margaret McLaughlin walked through the local glen to catch a train to Glasgow. She vanished. The next day Inspector Harry Robson went to the glen and, at two minutes to three in the afternoon, he found her body.

But that was not the first "discovery" of the body.

George Beattie's mother first pointed me towards the truth. She said she first heard of the murder on the Saturday morning at about 11:30. I thought she was getting mixed up - the dead girl wasn't found until three and a half hours later.

Then I noticed in the transcript of the trial that the victim's mother was asked about the time. She told the court " About half past eleven."

I read on. One of the Mclaughlin daughters, Jane, told the court she phoned around until twelve. Why stop at noon? Margaret wasn't found until three hours later.

I asked the McLaughlin family priest when he had learned of Margaret's death. "That was certainly Saturday morning at half past eleven," he said, " because it was around noon that I was down in that area."

I began to believe this strange tale when I talked to WPC Linda Stewart. She was with the McLaughlin family on that fateful Saturday morning - investigating the matter as a "missing person inquiry." She got there at around 9:30. She hadn't been there very long before she noticed the Fiscal go by - and the local doctor. She then knew that the missing girl was dead.

So who had found the body?

The answer was quite simple - a local bobby, John Baker. I found him - he's retired now .

He said : "The grass was kind of crushed down as if something had been dragged, a sack or something. So being curious, I went down and she was just lying down under a tree."

I asked the key question - what time was this?.

Baker did not hesitate. " It must have been about twelve I think," he said. Later, Baker added he was sure he found the body between ten o'clock and eleven. That fits with WPC Linda Stewart's recollection. - More than four hours before the official discovery.

If Baker found Margaret Mclaughlin dead before eleven o'clock, when did the CID turn up at the glen? I asked two of the detectives on the case Both are still serving officers at Hamilton near Glasgow - D.S. Jim McCleary and D.I. Ian MacAllister. Both remembered being called out in the morning.

Four and a half hours were missing - why was this such a big secret?

The answer is quite simple. It was a catastrophic bungle that messed up an important part of the case. The undergrowth in the glen was a veritable jungle - the police decided to hide there in case the murderer came back to the scene of the crime.

So they waited - and waited.... and waited. It got hotter and hotter as the July sun rose over the glen. And finally one of them realised this was not such a good idea - in fact they were giving the murderer more time to dispose of the murder weapon and any of his clothing that had been stained by Margaret's blood. If he was running away, they were giving him more time for that too.

But most importantly, they realised that the pathologists would be furious if they discovered that they had lost the chance to take a body temperature while the glen was still cool in the morning.

How was this blunder to be covered up? Enter Big Harry Robson, the uniformed Inspector at Lanark. He had had nothing to do with the case until this moment. He was sent off to the glen. And he 'found' the body - again. It was just 2:58, as he later told the court under oath.

The pathologists were called in immediately. But it was Saturday afternoon, they weren't easy to find. In fact it was six o'clock before they took a temperature reading. They should have been there seven hours earlier.

Working out the time of death from the body temperature was now almost impossible. And rigor mortis, which may still have been setting in at 11:30, had now taken over the whole body - so another means of guessing time of death was gone.

It meant a lot of guesswork had to be done about when the girl had been killed. They plumped for eight o'clock.

The problem was that good evidence later emerged that the dead girl might have died several hours later. WPC Linda Stewart had taken a note on her "missing persons" questionnaire that Margaret McLaughlin had eaten a meal before setting out on the Friday. Yet the pathologists made no note of stomach contents in her dead body. Since it takes several hours to digest a meal this showed she died later than eight o'clock.

The police only learned this after Beattie was charged. If they told the pathologists, they might have to admit they had covered up the earlier discovery of the body. The pathologists might stop the girl's funeral and have another look at the stomach - and clear George Beattie. The police didn't want that - so they kept quiet about it all.

That was bad news for George Beattie, because he had a cast-iron alibi for every other moment of the evening - except those few minutes around eight o'clock. If the pathologists had been alerted to the bungle in the glen, they might have been more certain that Margaret McLaughlin died at around ten o'clock - as her empty stomach indicated. And George Beattie would not have had his life ruined for a crime he did not commit.

- Peter Hill.

I do believe George Beattie has been done wrong by the Scottish judicial system and the police.

All involved in this case should hang their heads in shame.