Appeal Against Conviction And Sentence By John Docherty Against Her Majesty’s Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General,Lord Bracadale,Lady Dorrian |
| Neutral Citation | [2016] HCJAC 49 |
| Docket Number | HCA/2014 |
| Published date | 20 May 2016 |
| Date | 20 May 2016 |
| Court | High Court of Justiciary |
| Year | 2016 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 49
HCA/2014/3517/XC
Lord Justice General
Lady Dorrian
Lord Bracadale
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
APPEAL AGAINST CONVICTION AND SENTENCE
by
JOHN DOCHERTY
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: Findlay QC, Young; Faculty Criminal Appeal Service (for Westcourts Litigation, Greenock)
Respondent: Scullion QC; the Crown Agent
20 May 2016
Introduction
[1] On 17 June 2014, after a 52 day trial, the appellant was convicted of the murder of Elaine Doyle. The terms of the libel were that:
“(1) on 2 June 1986 at a lane leading from Ardgowan Street, Greenock you ... did assault Elaine Doyle, 28 Ardgowan Street, Greenock and seize her by her hair, strike her on the head, struggle with her, remove or compel her to remove her clothing, force her to the ground, push her face into the ground, sit or kneel on top of her, place a ligature around her neck and strangle her and you did murder her.”
On 6 August 2014, he was sentenced to life imprisonment with a punishment part of 21 years.
[2] The appellant appeals against his conviction, in terms of section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995, on the ground that the jury’s verdict was unreasonable. He appeals against his punishment part on the basis that he ought to have been sentenced in accordance with practice at the time of the offence.
The evidence
[3] On the morning of Monday 2 June 1986, the body of 16 year old Elaine Doyle was found lying naked in a lane beside the Air Training Corps hut off Ardgowan Street, Greenock. Her clothing lay around her. She had been strangled at that location with a ligature. There was evidence of a struggle. The deceased had a black eye, suggesting that at least one blow had been delivered to her face. According to the pathologist, she had been killed as she lay face down on the ground, with the killer pulling the ligature tight around her neck from behind while sitting astride or kneeling on her and pinning her down. There was no definite evidence of any sexual assault, but the circumstances in which the deceased was found suggested sexual motivation. A week later, the deceased’s handbag was found, partly burned, a few blocks away outside the James Watt Library in Union Street.
[4] The deceased had spent the evening of the previous Sunday with a group of female friends at a disco in the Celtic Supporters’ Club in Laird Street. The appellant had also been in the Club (see infra) but there was no evidence, from any of those in their company, of any contact between the two. When the disco ended, the deceased and her friends had gone to a hamburger stall at the Mid Kirk. At about midnight, having moved to what is now the Oak Mall Shopping Centre, she left her friends to walk home. The walk would have taken her about 15 minutes. The lane in which her body was found was within 50 yards of the flat in Ardgowan Street where she lived with her parents. A young girl living near to the locus gave a statement at the time of hearing a scream at about 00.40am.
[5] The principal evidence against the appellant came, first, from matches between the appellant’s DNA, ultimately obtained in 2012, and cells captured on tape applied to the body of the deceased as it lay in the lane shortly after its discovery.
[6] The protection of the crime scene in 1986 was not as it would be today. By coincidence, an early part of the investigation at the scene was video recorded, in what was then a pioneering experiment. This was in the days before DNA profiling had captured the imagination of criminal investigators; modern processes only having been developed two years later. Unlike the images of crime scenes in modern television dramas, none of the investigators was wearing clothing designed to prevent contamination. Although the police wore gloves when picking up items of clothing or turning the body, the purpose of doing so was to protect the officers from infection (notably AIDS) rather than to isolate the scene from extraneous objects. The video thus shows the police, notably DI Goldie, retrieving the deceased’s clothing and putting it in, albeit separate, polythene bags, whilst wearing normal civilian clothing. Various other persons involved in the investigation are seen in the video images milling about near the body.
[7] Keith Eynon, the forensic scientist, is also shown in the video images. He too was dressed in civilian clothes. At no time did he wear any gloves or other protective clothing, which would be regarded as standard today. His object had been to collect hairs and fibres for microscopic and chemical examination with a view to forensic matching. It was this exercise that saw him taking a series of tapings from the surface of the deceased’s body.
[8] Mr Eynon’s technique was to unwind and cut lengths of tape from a roll, hold them tight and apply them to the body’s surfaces, including all limbs, front and back of the torso and front of the face. The lengths were attached to clear acetate strips by reversing the ends and sticking them down. This, subject to some bulging of the tape shown in the video images, sealed the contents. Ultimately, Mr Eynon’s search for fibres was frustrated by the previous placement of a police blanket over the body to conceal it from onlookers. The blanket was not retained and never recovered. However, the tapings were kept. In due course, they were submitted for DNA examination, as techniques for DNA extraction and analysis developed over time.
[9] A mixed female/male DNA profile was obtained from the taping of the deceased’s face in January 2004. This had consisted of 2.00 nanograms (about 300 cells). In March 2006, a mixed profile was obtained from the tapings of the back, which had consisted of 6.00 ng (1000 cells). The major profile was of male origin, with the traces matching corresponding types in the profile of the deceased. In 2008, the face sample was re-analysed. The male traces matched the respective types in the male profile obtained from the back taping. The back profile was posted on the national DNA database as a reference sample. A sample from the front torso of the deceased contained a mixed profile, which included a major contribution from DNA matching that of DI Goldie. There was evidence from the video images that he had turned the body, but not that he had touched the chest.
[10] The initial investigation in 1986 had identified the name of the appellant as someone who had been in the Celtic Club on the relevant night. His name had not been in the club’s visitors’ book. He had not come forward to volunteer information, despite his mother and his then girlfriend, namely LH, urging him to assist with the inquiry. On 26 October 1986, the police had located a friend of the appellant, namely JF, who told them that he had been in the Club with the appellant, whose address he correctly gave as 14 Ann Street. They had walked “about the town centre” for a short time. JF had taken a taxi home, arriving at about 11.50pm; a fact supported by his brother. The contemporaneous police investigative material noted: “T.I.E.” [trace, interview and eliminate] the appellant, but this does not appear to have been followed through. The appellant was not interviewed in 1986. In 1987 he joined the army.
[11] A review of the index of names held by the inquiry in 2011 and 2012 led to the appellant being traced. He eventually told the police that he had been at the Club that night. He was one of several hundreds asked to provide a voluntary DNA sample for screening. His sample matched the reference sample. The forensic scientists, namely Terence Randall and Pauline McSorley, were of the view that, given the method of strangulation, the DNA recovered from the taping to the back of the body was likely to have been contained in cells deposited directly onto the deceased’s back (ie by primary rather than secondary or tertiary transfer) given the quantity involved. No DNA from anyone else was found on the deceased’s body or her clothing other than that of members of her family or the investigators. The appellant was charged with the murder on 23 March 2013.
[12] The second principal strand of evidence against the appellant came from MB. Mr B, who was aged 24, had been up from London. After spending some time in the Green Oak pub, he had gone to a flat in Brisbane Street to watch the opening match of the World Cup in Mexico. That match had kicked off at 11.00pm. At half time, the flat owner had decided to watch something else, so Mr B left to go to his parents’ house, at the corner of Patrick and Union Streets, for the second half. In his first statement, taken on 3 June 1986, he said that he had left the flat at 12.15 and arrived at his parents at 12.20. His route took him along Ardgowan Street, in the opposite direction from that predicted of the deceased heading home from the town centre.
[13] According to Mr B in his evidence, he had seen a girl being followed by a male walking away from the town centre, up Ardgowan Street at Ardgowan Square and heading towards the locus, which was only a block further away. The male was walking faster, as if he was trying to catch up with her. It looked as if they might have been together, and he assumed that they were, although he did not see any interaction between them. They seemed “incongruous” as a couple in retrospect. Mr B said that he had only glanced at the male. He glanced twice at the girl.
[14] The male was in his 20s, 5’8”, wearing dark clothing. He had “big eyes”, seemed angry and made Mr B look away. Mr B suffered from colour blindness, which affected his perception of shades. He thought that the male had red or auburn hair. He thought that he was someone called “Carrot” Docherty (no relation to the appellant). However, by 10 June he was “not sure” about the hair colour. The girl was about 20 with shoulder length...
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