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Scott Law · Joined: 06 Nov 2007 Posts: 36

Fraser loses bid to overturn conviction in wife's murder

http://news.scotsman.com/arlenefr...-loses-bid-to-overturn.4053442.jp

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NAT Fraser today failed in a bid to have his 2003 conviction for murdering his estranged wife quashed at the Court of Appeal in Edinburgh.
Fraser's lawyers claimed he was the victim of a miscarriage of justice and argued that vital evidence casting doubt on his guilt was withheld from his defence team. But three senior judges ruled that his appeal against conviction should be refused.

The Lord Justice Clerk Lord Gill concluded that the proposed evidence of Pcs Neil Lynch and Julie Clark was not new evidence and that, even if it was, the verdict could not be regarded as a miscarriage of justice.

He said: "The circumstantial evidence alone constituted a compelling case against the appellant. There was evidence that he had motives for the crime. There was evidence of his previous malice and ill will towards the deceased."

Fraser was jailed for life in January 2003 after a jury convicted him of killing his estranged wife Arlene ten years ago.

Mrs Fraser was 33 when she disappeared from her home in New Elgin, Moray, after waving her two children off to school on 28 April 1998. Her body has never been found.

The disappearance led to one of the largest and most complex investigations ever mounted by Grampian Police, and resulted in a high-profile trial.

In 2003 the trial judge at the High Court in Edinburgh ruled that Fraser should spend a minimum of 25 years in jail before being considered for release. But Fraser walked free in May 2006, having been granted bail ahead of his full appeal. Judges took the step after hearing that the grounds of appeal were "compelling" in Fraser's case.

The trial heard Arlene's rings went missing on the day she disappeared, then turned up in the bathroom of her home nine days later. It was claimed her husband had placed them there, suggesting he had access to her body.

Fraser's defence team appealed against his conviction on the grounds that the evidence of two police officers – Julie Clark and Neil Lynch – who claimed to have seen rings in the house much nearer the time she went missing, was not disclosed to the defence or to the trial. But the appeal judges said the original evidence against Fraser was "overwhelming".

Fraser returned to prison in December 2007 after the convicted killer's bail was withdrawn at the end of submissions in his appeal.

Lawyers for Fraser claimed his trial had been a "farce".

Fraser, a fruit and vegetable wholesaler, had been facing a costly divorce settlement and was suspected by the police, but he had an unbreakable alibi. It was almost five years before he and two other men, Hector Dick and Glenn Lucas, now deceased, were put on trial. A few days into the case, the Crown dropped the charges against Lucas and Dick.

Dick then said Fraser had confided in him about hiring a hit-man to strangle Arlene, and claimed Fraser had admitted burning the body and crushing and scattering the remains.

In today's decision, Lord Gill said there was evidence of "preparatory acts" by Fraser in setting up an alibi.

The judge continued: "There was incriminating evidence in the events and circumstances and in the demeanour and the statements of the appellant immediately after the disappearance.

"In my opinion, the circumstantial evidence alone was not only sufficient in law to entitle the jury to convict, but was powerful in its effect."

Fraser tried to interject as the judges delivered their opinion, saying: "Excuse me, excuse me," while Lord Gill was speaking.

Fraser showed little sign of emotion as he was led away to continue his sentence.

Members of Mrs Fraser's family, including her father and sister also showed little sign of outward emotion as the opinion was delivered.

Speaking outside court, Grampian Police Assistant Chief Constable Jim Stephen, who was the senior investigating officer in the case, said: "Today's result is that Nat Fraser will continue to pay for his crime.

"This must be a source of comfort to Arlene's family who have had to endure considerable pain and anxiety throughout the appeal period.

"We hope that in some way today's verdict will help them close one traumatic chapter of their lives."

Last Updated: 06 May 2008 3:56 PM
Source: The Scotsman
Location: Edinburgh

Scott Law · Joined: 06 Nov 2007 Posts: 36

Court throws out Fraser's appeal over murder of wife Arlene

http://news.scotsman.com/arlenefr...s-out-Fraser39s-appeal.4055435.jp

Nat Fraser talks to reporters outside court, where he vowed to ‘fight for the truth’ Picture: Neil Hanna

View Gallery Published Date: 07 May 2008
By SHÂN ROSS

NAT Fraser, the businessman convicted of murdering his estranged wife, yesterday failed in an attempt to have his conviction quashed.
The decision came a few days after the tenth anniversary of his wife's disappearance. Fraser, 48, of Elgin, Moray, was jailed in 2003 after a jury found him guilty of murdering Arlene, 33, despite no body being found.

As they emerged from the court in Edinburgh, Mrs Fraser's mother, Isabelle Thompson, her father, Hector McInnes, and sister, Carol Gillies, were smiling.

With his voice shaking and full of emotion, Mr McInnes, who gave a thumbs-up, said: "We are pleased with the outcome. It has taken ten years of our life. Unfortunately, we have not found out about Arlene, but he is where he deserves to be.

"He has given us a life sentence, so he deserves a life sentence as well."

But as he was led away from the back of the court building, Fraser tugged on his handcuffs to delay a Reliance officer putting him into a security van and said to waiting reporters: "The fight will go on, as will the fight to get to the truth."

The mother of two went missing from her home in Elgin in April 1998 after waving her two young children, Jamie and Natalie, off to school.

Last year Fraser's lawyers claimed he had been the victim of a miscarriage of justice and argued that evidence from two police officers was not disclosed to the defence or to the trial.

The prosecution case had included claims that Mrs Fraser's engagement, wedding and eternity rings were placed in the bathroom of her house several days after she vanished.

Evidence later emerged that the police officers may have seen the rings in her house shortly after she disappeared.

But yesterday, at the Court of Criminal Appeal in Edinburgh, three senior judges ruled that Fraser's appeal against conviction should be refused.

The Lord Justice Clerk, Lord Gill, concluded that the proposed evidence of PCs Neil Lynch and Julie Clark was not new and that even if it was, the verdict could not be regarded as a miscarriage of justice.

He said: "The circumstantial evidence alone constituted a compelling case against the appellant. There was evidence that he had motives for the crime. There was evidence of his previous malice and ill-will towards the deceased."

Lord Gill added that there was evidence of "preparatory acts" by Fraser in setting up an alibi.

At one point during the proceedings, Fraser tried to interrupt Lord Gill as he delivered his opinion, saying: "Excuse me, excuse me."

In a highly unusual departure from the usual proceedings in a Scottish court, television cameras were also allowed in.

At a press conference in a nearby hotel, Mrs Fraser's family spoke of their "sheer relief". They also revealed that they would be prepared to do a "trade-off" with Fraser, giving him a reduction of his life sentence if he would disclose where Mrs Fraser's body was buried.

Mrs Gillies said: "I'm appealing to Nat's human side. We'd like to give Arlene a proper burial and a trade-off might be the only way we can get that information."

Mrs Gillies and her father said they were still prepared to put up £20,000 each as a reward for information, despite the fact that no-one had come forward with information in the past.

Mrs Fraser's sister, describing the strain of yesterday's proceedings and seeing Fraser in court, continued: "This case has been full of surprises. I was terrified going into court. I have no feelings towards him. Maybe pity; he's completely ruined his life, he's got nothing ahead of him.

Mrs Gillies added that she "did not feel hatred" towards Fraser.

"I just see him as a source of information. He needs to go back to his cell and think about his future. People talk about 'closure'. We will only get closure when Arlene is found. We need to be true to ourselves and accept that we might never know."

The case could now be considered by the Scottish Criminal Case Review Commission if there were sufficient grounds that a miscarriage of justice had occurred.

Case centred on three rings, but judges weren't convinced

NAT Fraser's appeal against his life sentence centred round three rings worn by his wife – her engagement, wedding and eternity rings, pictured.

In the immediate aftermath of Arlene's disappearance on 28 April, 1998, no trace of them was found by police or family members.

Arlene Fraser: Body has never been foundBut they were eventually found on a wooden dowel beneath a soap dish in the bathroom, after a visit Fraser made to the house on 7 May. It was claimed Fraser had placed them there, suggesting he had access to her body after she vanished.

The trial judge directed the jury at the time that, if they did not accept that Fraser placed the rings in the bathroom on 7 May, they could not convict.

However, in March 2006 it emerged that two police officers, precognosed by the Crown in preparation for the trial, had mentioned seeing rings there prior to the police search.

Two months later, Fraser walked free from prison on bail, after judges heard the grounds of appeal in his case were "compelling".

This evidence had not been known to the advocate-depute and not disclosed to the defence. Fraser's legal team argued for a miscarriage of justice.

The appeal judges yesterday said the ruling was a "misdirection", but one which was "limited in its scope".

Lord Gill told the court: "We can conclude with certainty the jury found that the appellant put the rings in the house on May 7.

"The question is whether, in light of the proposed new evidence, the verdict was a miscarriage of justice. In my view, it was not."

Lord Gill added evidence from the PCs had "no material significance in comparison with the evidence of the family members."

FIVE YEARS OF PAIN

6 MAY 2008 Nat Fraser's appeal against a life sentence for killing his wife is rejected.

28 APRIL 2008 Tenth anniversary of Arlene Fraser's disappearance from her home. Her family gather in Elgin to mark the date privately.

6 DECEMBER 2007 Fraser is sent back to prison, pending a written outcome by three judges, as his appeal comes to an end.

15 NOVEMBER 2007 Police lied to the prosecutor in the Fraser murder trial in order to get a conviction, it is claimed.

14 NOVEMBER 2007 The prosecutor who secured Fraser's conviction for murdering his wife was unaware of important evidence until two years later, appeal judges hear.

6 JUNE 2007 Fraser is to challenge his conviction for murdering his wife when a full appeal is heard later this year.

14 SEPTEMBER 2006 Glenn Lucas, one of the men ( the other was Hector Dick) cleared of murdering Arlene, is found dead at his home in Lincolnshire.

12 MAY 2006 Fraser is freed from prison pending an appeal.

6 MAY 2005 Fraser is allowed to appeal against his conviction.

19 DECEMBER 2003 Fraser lodges an appeal against his conviction for murdering his wife.

The full article contains 1193 words and appears in The Scotsman newspaper.Page 1 of 1

Last Updated: 07 May 2008 12:13 AM
Source: The Scotsman
Location: Edinburgh

Scott Law · Joined: 06 Nov 2007 Posts: 36

The trial judge directed the jury at the time that, if they did not accept that Fraser placed the rings in the bathroom on 7 May, they could not convict.

Surely the juries verdict returned under the above directions are perverse and had the jury known of this it was clearly capable of undermining the Crowns Case and he should have won his appeal on this issue.

Turnbull even claimed himself : if he had known of the evidence of the rings he would have fainted.

So why hasn't Fraser won his appeal?

The mention of his case being similar to Gair and Kidd is a Joke
Kidd won his appeal on his sister "Allegedly" overhearing someon on a bus say : he had set her brother up. Could we not all say this to win appeals ????????? I am sure this is a joke

Gair won his appeal on being deprived an argument in front of the jury because Crown did not reveal an Exculpatory statement but interestingly in Gairs case taking away the evidence withheld there in effect was still two Police Identifying him as the murderer

Holland aand Sinclair mentioned as 2005 issues.

In Sinclair

The right to a fair trial is an absolute right which cannot be compromised: Brown v Stott, 2001 SC (PC) 43, per Lord Bingham of Cornhill at p 60A-B; see also p 74B. If the accused has not had a fair trial the verdict cannot stand and the conviction must be quashed.

Nor can the fact that the statements were not made available be attributed to any failure in duty on the part of the defence. The duty of disclosure was on the Crown, and it was a breach of that duty for these statements not to have been provided to the defence before the trial.

1.It is impossible therefore to say that the appellant’s defence was not prejudiced by what happened in this case. It was prejudiced because his solicitor advocate was not in a position to cross-examine Pamela Ritchie when she changed her evidence on the basis of what she said and what she did not say to the police when she was being interviewed by them after the incident. Nor can it be said that the appeal court removed the unfairness. This is because it took the view that the fact that the police statements were not produced before the trial was not due to any breach of duty on the part of the Crown and that it was up to the defence to decide whether or not to ask for them: 2004 SLT 794, 798, paras 15 and 16.

1.For these reasons I would hold that the appellant’s complaint that there was a breach of his article 6(1) Convention right to a fair trial is well founded. In my opinion the act of the Lord Advocate in bringing these proceedings and seeking a conviction without having disclosed these statements was incompatible with the appellant’s right to a fair trial.

Remedy
1.As I said at the outset, section 57(2) of the Scotland Act 1998 provides that a member of the Scottish Executive has no power to do any act so far as it is incompatible with any of the Convention rights. As Lord Rodger of Earlsferry observed in R v HM Advocate, 2003 SC (PC) 21, 73, para 155, it is not open to the court if this subsection is breached to assess what the consequences of any particular violation of an individual’s Convention rights should be. Parliament has decided that members of the Scottish Executive, including the Lord Advocate, should have no power to do acts that are incompatible with any of the Convention rights. In this case that means that the Lord Advocate, having proceeded to trial without having made Pamela Ritchie’s statements available to the defence as article 6(1) requires, had no power to continue with it and seek a conviction without making these statements available to the defence as soon as it became apparent that she was changing her evidence. But it could equally well be said in this case that the failure to disclose the statements was a failure to act by the Lord Advocate which was incompatible with the appellant’s article 6(1) Convention right: see para 1(e) of Schedule 6 to the Scotland Act 1998. The right to a fair trial is an absolute right which cannot be compromised: Brown v Stott, 2001 SC (PC) 43, per Lord Bingham of Cornhill at p 60A-B; see also p 74B. If the accused has not had a fair trial the verdict cannot stand and the conviction must be quashed.

Lord Rodger of Earlsferry:

1.If the appellant’s solicitor advocate had had a copy of that statement, he would have been able to use it to considerable effect in challenging the reliability, and perhaps also the credibility, of Ms Ritchie’s evidence that she had seen the appellant hitting the complainer with the hammer. That would in turn have provided a platform for challenging her evidence as a whole. Therefore the conduct of the appellant’s defence was materially affected by the fact that his solicitor advocate did not have access to this statement when cross-examining Ms Ritchie.

1.In giving the judgment of the appeal court, the Lord Justice General appeared to suggest, 2004 SLT 794, 798, para 16, that, because the solicitor advocate did not ask for the statement, the advocate depute was under no obligation to provide it. The Crown’s article 6(1) duty to disclose evidence in favour of the defence does not, however, depend on any request being made by the defence. That duty subsists unless, unusually, it is waived by the defence. There was no waiver in this case. The appeal court therefore erred when they concluded that there was no breach of the Crown’s duty of disclosure. Given its potential significance for the defence, the failure to provide the statement can also be said to have rendered the appellant’s trial as a whole unfair for purposes of article 6. The appeal against conviction must accordingly be allowed.

1.It follows that the police statements of all the witnesses who are to be called at the trial are to be regarded as containing material evidence either for or against the accused. The Crown are, accordingly, under an obligation, in terms of article 6(1), to disclose their statements to the defence. This helps to ensure that there is equality of arms between the two sides. (Indeed the absence of any reciprocal obligation on the part of the defence may tip the scales in their favour in this respect.) For the avoidance of doubt, the Crown’s obligation of disclosure as described in Macleod v HM Advocate (No 2) 1998 JC 67 should be understood as requiring the disclosure of these statements. It follows that, in so far as the Crown Practice Statement on Disclosure (September 2004) requires the Crown to provide the statements of these potential witnesses, it can properly be regarded as fulfilling this aspect of their obligation of disclosure under article 6(1). For present purposes it is unnecessary to consider situations in which the public interest will justify the non-disclosure of such statements, or how such cases should be handled.

In Holland Lord Rodger said:

Failure to disclose outstanding charges
1.Ms Scott submitted that, by failing to disclose the information about the charges against Mr Lynn and Miss Gilchrist relating to drug dealing from the house where they were attacked, the prosecution had infringed the appellant’s rights under article 6(1) of the Convention. The parties accepted that the requirements of article 6(1) in this regard had been correctly identified by the European Court of Human Rights in Edwards v United Kingdom (1993) 15 EHRR 417, 431–432, para 36:
“The Court considers that it is a requirement of fairness under paragraph 1 of Article 6 (art. 6-1), indeed one which is recognised under English law, that the prosecution authorities disclose to the defence all material evidence for or against the accused. ...”

In McLeod v HM Advocate (No 2) 1998 JC 67 a Court of Five Judges applied that guidance when considering the duty of the Crown to make disclosure under Scots law. I put the position shortly, at p 79F-G:
“Our system of criminal procedure therefore proceeds on the basis that the Crown have a duty at any time to disclose to the defence information in their possession which would tend to exculpate the accused.”

I added, at p 80E–F, that the court would order the production of documents if satisfied that their production “would be likely to be of material assistance to the proper preparation or presentation of the accused’s defence”. Lord Hamilton said, at p 83A–C, that the duty was to disclose information that “is significant to an indicated line of defence” or is likely to be of real importance “to any undermining of the Crown case or to any casting of reasonable doubt on it”.

2.Before the Board the Advocate Depute, Mr Brailsford QC, who argued this part of the appeal, accepted these formulations of the Crown’s duty of disclosure. Similarly, Ms Scott accepted that they accurately described the duty of the Crown in terms of article 6(1). The problem, she said, was not the way that the duty had been formulated in McLeod but the way in which it had subsequently been interpreted and applied by the Crown and, in her experience, by the judges. If she had not applied to the court for an order for disclosure in this case, it was because, in her experience, it would have been unlikely to be granted.

1.There is no doubt that, historically, in Scotland the Crown have been reluctant to provide the defence with details of the previous convictions of witnesses in advance of trial. In part, at least, this reluctance is probably a hangover from a time when the Crown regarded all the information which they gathered when investigating a case as confidential.

Failure to disclose remark after the Identification Parade
1.Both before the appeal court and again before the Board, the Crown accepted that they had infringed the appellant’s article 6(1) Convention right by failing to tell the defence about the remark which the police officer had made to Miss Gilchrist after the identification parade.

Taking all the relevant factors together, I have reached the conclusion that in this case the failures of the Lord Advocate’s representatives to disclose information to the defence and the advocate depute’s reliance on the dock identifications of Miss Gilchrist and Mr Simpson were incompatible with the appellant’s core article 6 Convention right since, taken together, they resulted in an unfair trial. Since a conviction resulting from an unfair trial cannot stand, the appellant’s conviction of charges 2 and 3 must be quashed.

Why have our courts not decided that the evidence now produced of the two police that the rings were in the house prior to 7 May have deprived Fraser of the fair hearing he was entitled to.

If he did not get a fair hearing then the verdict clearly cannot stand and at the very least he should have won his appeal and crown could then have proceeded to new trial if they so wished.

For people to win appeals because they could not challenge peoples previous convictions in court then surely the evidence of the two police discredit or at least they appear to be able to discredit and undermine the Crowns Case.

I am really shocked our courts have adopted this stance with Fraser and brought our judicial system into disrepute, as if Lockerbie wasn't enough eh ?

Surely his defence team must now appeal to Privy Council as did Holland And Sinclair with great success