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"No case" rulings should be appealable: Commission

31 July 2008

A report from the Scottish Law Commission has recommended that prosecutors be allowed to challenge a judge's decision to halt a trial because of lack of evidence.

Published today, the report, Crown Appeals, says the Crown should be able to appeal, with leave of the trial court, against any decision to uphold a submission of no case to answer, on the statutory replacement of a common law submission, and that any item of prosecution evidence is inadmissible.

A successful appeal would result in a retrial, unless the appeal court considered that this would not be in the interests of justice.

It also recommends that a "no case" submission should be upheld if on the prosecution evidence a reasonable jury, properly directed, would not be entitled to convict. This would permit a submission to succeed where any corroborating evidence is so weak that a reasonable jury would not be entitled to convict.

No change is recommended to an accused's rights of appeal, or to the finality of a verdict of acquittal.

Ministers' reference

The report is the first following the reference by ministers in the wake of the high-profile collapse of the "World's End" trial last year. Lord Clarke ruled that the Crown had failed to present enough evidence in its case against Angus Sinclair, who was accused of murdering teenagers Helen Scott and Christine Eadie in Edinburgh 30 years ago.

The Commission's chairman, Lord Drummond Young, said that in rare cases, the present position could result in a well founded prosecution being wrongly dismissed and the accused not being held properly to account.

The Commission was also asked to look at double jeopardy - under which suspects cannot be tried twice for the same crime. It is due to report on this topic next year and on the remaining aspects of the reference in 2010 or 2011.

Justice Secretary Kenny MacAskill said he welcomed the findings of the Commission and would be giving careful consideration to the report.

The report is available on the Commission's website at http://www.scotlawcom.gov.uk/html/reports.html .