R v C
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thomas |
| Judgment Date | 04 November 2010 |
| Neutral Citation | [2010] EWCA Crim 2578 |
| Docket Number | Case No: 2010/03155/C5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 04 November 2010 |
[2010] EWCA Crim 2578
COURT OF APPEAL (CRIMINAL DIVISION)
Before: Lord Justice Thomas
Mr Justice Sweeney
and
Mr Justice Spencer
Case No: 2010/03155/C5
Mr R Carey-Hughes QC and Ms A Faul for the Appellant
Miss L Wilding and Miss C Haughey for the Respondent
Hearing date: 13 October 201
Lord Justice Thomas:
Introduction
This is an appeal with leave of the trial judge against a ruling as to the admissibility of DNA evidence made at a hearing declared to be a preparatory hearing under s.29 of the Criminal Procedure and Investigations Act 1996 ( CPIA) after the ruling had been made.
Three issues arose on the appeal:
i) Was the ruling of the judge on the admissibility correct?
ii) Should the judge have made an order for a preparatory hearing?
iii) What is the proper approach to dealing with the issues of admissibility raised?
At the conclusion of the hearing we quashed the order for a preparatory hearing and gave our indication as to the future conduct of the trial. As a trial is to take place, we will summarise the facts as known to us in a way which will enable this judgment to be published. In this particular appeal, this does not make much difference. As the judge decided to give his ruling before he declared the hearing a preparatory hearing, he had not found the facts in a way in which we are sure he would have done had he been making the ruling in anticipation that it was a ruling in a preparatory hearing where leave would be given for an appeal to this court.
An outline of the factual background
The offence and the DNA analysis
In the 1980s, the victim was raped at her house. The rapist ejaculated inside her. Swabs were taken from the lower and higher part of her vagina. They were tested at the time, but no DNA profiles were then obtained. Many years later, after there had been enormous advances in DNA technology, a further analysis was carried out by an expert employed by the Forensic Science Service (FSS) using, at first, the SGM+ process. This produced a major profile and a minor profile; there was no suggestion according to that expert that DNA from more than two persons was present. At that stage no reference profile had been taken from the victim but it was assumed that the major profile was from her. That assumption proved subsequently to have been correct; a swab was taken later from the victim which on analysis matched the major profile. The minor profile obtained was compared with DNA on the national database. There were three possible matches: two were eliminated and the third was the appellant.
The sample from the appellant as referenced on the database was then upgraded and subjected to the SGM+ process. This was then compared with the minor profile obtained from the vaginal swab of the victim. It was said that there was a sufficient profile obtained from the partial profile at a sufficient number of loci to provide a match probability in the region of 1 in 100,000.
The sample from the appellant was then subjected to LCN process in the manner described in Reed &Reed [2009] EWCA Crim 2698, [2010] 1 Cr. App. R 23. The minor profile was said by the FSS expert to show a match probability of 1 in over 3 million. After the analysis of the further swab taken from the victim and an analysis made combining the SGM+ and LCN results, a match probability of the minor profile to that of the appellant was 1 in over 50 million.
In each of the SGM+ and LCN processes more than one run was made. In all six runs were made and compared with one another for stochastic effects and reproducibility.
The disagreement between the experts
The conclusions were set out by the FSS expert in a number of reports. An overseas academic was instructed on behalf of the appellant. Although it was not clear why it had been necessary to instruct an expert from overseas (with the considerable extra expense involved), his expertise was not challenged. He produced a report to which further reports were produced by the FSS expert in response. None of these was before us. Among the issues that were taken by the appellant's expert was that, as, in his view, the quantity of the minor profile was below 50 picograms, the stochastic effects were likely to be considerable. In a response on 20 January 2010 the FSS expert said:
“The [FSS]'s DNA Interpretation model takes into account the possibility of stochastic variation, therefore in SGM+ and LCN analysis one would make an assessment of the quality of the electrophoretogram and reproducibility of the results. In my opinion stochastic variations are not an important issue in this case as aliquots from the same DNA extract have been run 6 times, the results were highly reproducible and showed no significant stochastic variation. In my opinion, these observations give a more reliable indicator of whether stochastic variation has occurred rather than the Quant value.”
In accordance with the Criminal Procedure Rules, there was a meeting between the two experts the outcome of which was recorded in a note dated 8 March 2010 which was provided to us on the appeal. This set out the areas of disagreement which were in summary as follows:
i) Whether the quantity of the minor profile was such that stochastic variations had been sufficiently taken into account.
ii) Whether there were more than two contributors.
iii) Whether the way in which the process of analysis carried out had properly followed the applicable protocols.
iv) Whether the samples had been handled, stored and recorded correctly.
v) The reproducibility of the runs.
vi) The match probability calculation.
vii) The applicable statistics.
Further meetings took place between the experts in May 2010, but the disagreements remained. Indeed there were further points as to the number of alleles that could properly be taken into account on the profiles obtained by the LCN process.
In the light of the reports of the appellant's expert, counsel for the appellant considered with the appellant's expert the overall reliability of the evidence. Although not expressly set out in any document, it was common ground before us that the appellant's expert was in effect saying that the cumulative effect of the various points was such that the DNA evidence adduced was unreliable. It was on the basis of this that counsel for the appellant made an application that the DNA evidence should be excluded under s.78 of the Police and Criminal Evidence Act 1984 (PACE).
The voir dire
The matter came on for hearing as a voir dire on the admissibility of the DNA evidence before the trial judge later in May 2010 prior to the commencement of the trial. No jury was empanelled. The FSS expert who had served several further reports dealing with the points raised by the appellant's expert was called to give evidence. In the course of cross-examination it was suggested to the court that the quantity of DNA on the minor profile of the male was 50 picograms; that quantity was below the stochastic threshold of 100–200 picograms established in Reed &Reed and by reason of that fact alone the evidence could not be admitted. The cross-examination extended over a period of three days. It appears that a significant part was directed at attempting to prove on the basis of the tests carried out that the quantity of the male profile was 50 picograms; there was cross examination on the Quant Duo test. There then had to be an adjournment while various points were considered. The Crown recalled the expert and called a further expert from the FSS and adduced a report from a yet further expert. We were told that the Crown's expert did not accept that the quantity of the male profile was 50 picograms and made clear that the quantity itself was not the material consideration; what was important was to take fully into account any stochastic effects and examine the reliability and reproducibility.
The appellant's expert was present throughout the hearing. He did not give evidence.
After the evidence had concluded, it was submitted to the judge that, if (as was submitted to be the case) the amount of the minor profile was 50 picograms, the profile was inadmissible because it was below the stochastic threshold of 100–200 picograms. It was contended that the threshold set out in Reed &Reed applied to the profile of the minor contributor and not to the whole of the DNA analysed; as it was below 100–200 picograms it was ipso facto inadmissible.
The Crown in a careful and well constructed argument made clear that this was a misreading of Reed &Reed; the court had said that where quantities were below the stochastic threshold, it was the reliability of the profile that determined admissibility. There was no lower limit.
The ruling on the voir dire
On 28 May 2010, at the conclusion of the hearing (which had extended because of the adjournment over 7 court days) the trial judge gave an ex tempore ruling. The judge held that the FSS expert had not been undermined in such a way that the evidence should be excluded under s.78 of PACE. He went on to hold that as long as the total amount of DNA met the quantity required as set out in Reed &Reed the ratio of the profiles might not matter. He agreed with the evidence of the FSS expert that it was not the quantity of the DNA that necessarily mattered but quality and reliability. He concluded by saying that he considered the stochastic levels valid and it was sufficient to make the analysis reliable. He did not set out his conclusions in respect of the quantity of the minor male...
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