The right of the Crown to try an accused for the second time may soon be enacted following a Law Commission recommendation in the wake of the failed Angus Sincalir “World’s End” prosecution.

The Commission has published its Report on Crown Appeals which makes a number of recommendations, principally “the granting to the prosecution of a right of appeal, with leave of the trial court, against rulings of no case to answer, decisions on the statutory replacement of a common law submission and certain findings relating to the admissibility of prosecution evidence.”

The Commission were given terms of reference to make new recommendations in the wake of the failed Sinclair trial, which spectacularly reached a finding of “no case to answer” after the Advocate Depute did not lead all of the available evidence which had been gathered, including DNA evidence, some 30 years after the murder of two teenage victims, who were last seen in Edinburgh’s World’s End pub.

The Commission will make further reports upon double jeopardy in 2009 and upon the remaining aspects of the reference in 2010 or 2011.

The Commission's Chairman, Lord Drummond Young, said: "The trial judge rightly has the power to bring the prosecution to an end where the Crown does not present sufficient evidence against the accused; but, at present, the trial judge's decision cannot be reviewed. In rare cases, this may result in a well-founded prosecution being wrongly dismissed and the accused person not being properly held to account. We recommend, therefore, that the Crown should be able, with leave of the trial judge, to challenge a number of judicial rulings, including a ruling that there is no case to answer."

In a statement, the commission added that “at present, a submission of no case to answer will only succeed where there is an absence of corroboration in respect of one or more essential elements of the offence. The Commission recommends that the test should be broadened to one of whether, on the prosecution evidence, a reasonable jury, properly directed, would be entitled to convict. This would allow a submission to succeed either where there was an absence of corroboration or where the case against the accused, though corroborated, was so weak that no reasonable jury would be entitled to convict.”

“The proposed Crown right of appeal would extend to all rulings on a submission of no case to answer, to rulings on the statutory replacement of a common law submission, and to findings by the trial judge, in the course of the trial, that an item of the prosecution evidence was inadmissible. Appeals would be permitted only with leave of the trial court. Where a Crown appeal was successful, the normal result would be a re-trial; but this would only be permitted with the authority of the appeal court, which would be refused where the appeal court considered that a new prosecution would not be in the interests of justice.”

In October the Firm reported on the legal profession's reservations and warnings against legislating in this sensitive area of the law. The feature can be read here.


The Law Commission’s full report can be read here.