R v Reed; R v Garmson
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thomas |
| Judgment Date | 21 December 2009 |
| Neutral Citation | [2009] EWCA Crim 2698 |
| Docket Number | Case Nos: 2007/04708/B3 2007/04800/D4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 21 December 2009 |
[2009] EWCA Crim 2698
Before: Lord Justice Thomas
Mr Justice Kitchin and
Mr Justice Holroyde
Case Nos: 2007/04708/B3
2007/04710/B3
2007/04800/D4
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURTS AT TEESSIDE AND STAFFORD
THE HON MR JUSTICE KEITH
MR RECORDER PATRICK THOMAS QC
James M Hill QC & Tom Mitchell for the Appellant (David Reed)
Eric A Elliott QC & John Gillette for the Appellant (Terence Reed)
Nicholas C Campbell QC & Tina Dempster for the Respondent
M Burrows QC & A Baker for the Appellant (Garmson)
S Linehan QC & D J Desmond for the Respondent
Hearing dates: 20, 21, 22 and 23 October 2009
Lord Justice Thomas:
This is the judgment of the court to which each of us has contributed.
I: THE ISSUES IN THE APPEAL
(1) Low Template DNA
The appellants in both appeals were convicted in August 2007 on the basis of an analysis of DNA profiles as well as other evidence.
DNA evidence has played a significant part in criminal trials since its application to forensic science was appreciated; it has been employed as a routine technique in the United Kingdom since 1987. The process as first used was described by Lord Taylor CJ in R v Deen (21 December 1993). In R v Doheny [1997] 1 Cr App Rep 369, Phillips LJ (as he then was) gave some general guidance about its interpretation, the role of experts and directions given to juries. In R v Bates [2006] EWCA Crim 1395, Moore-Bick LJ gave a more detailed description of DNA evidence at its then stage of development as used in a trial in 2005.
As the science of DNA developed, techniques of analysing minute quantities of DNA, Low Template DNA, were developed from 1999 onwards. One of the processes of analysis and interpretation of Low Template DNA is called Low Copy Number (LCN) DNA. It is employed by the Forensic Science Service (FSS). Evidence of DNA profiles using this process was adduced in August 2007 at the trials of the appellants in these appeals.
During 2007, following a recommendation of an earlier review of the LCN process, the Forensic Science Regulator (the holder of a post established by the Home Secretary in July 2007 to advise the Executive on the quality standards of suppliers of forensic science services) asked Professor Brian Caddy to lead an independent review of the standards of science used in the analysis of all Low Template DNA, including the LCN process. Professor Caddy was Emeritus Professor of Forensic Science at Strathclyde University with extensive experience in conducting independent reviews.
Before this review had been completed, a challenge was made in the Northern Irish case of R v Sean Hoey [2007] NICC 49 to the reliability of DNA evidence using the FSS's LCN process. The defendant was charged with offences of murder, conspiracy to murder and other offences in relation to the Omagh Bombing which had occurred on 15 August 1998. The case against Hoey was based substantially on DNA evidence using the LCN process. As the judge, Weir J, was not satisfied as to the integrity of any of the items relied on prior to their examination, the prosecution case failed. However, extensive evidence was given in the course of the trial as to the reliability of the LCN process for the purpose of obtaining data of sufficient evidential quality. Weir J summarised in his judgment what he described as, �the attack made on the evidential value and reliability of the system� by Dr Daniel Krane, a professor at Wright State University, Dayton, Ohio and Professor Allan Jamieson, a Director of the Forensic Institute. We set out at paragraphs 104 and following the relevant experience of Professor Jamieson when he gave that evidence. It appears that Weir J drew attention to the attack of Dr Krane and Professor Jamieson because of his stated concern about �the present state of the validation of the science and methodology associated with the LCN process and in consequence its reliability as an evidential tool�.
Professor Caddy reported in April 2008 that the processes were valid, as we explain below at paragraph 72, but set out caveats in relation to the interpretation of the results where the quantity of DNA analysed was below a certain amount.
In the grounds of appeal in each appeal, as they developed, the appellants raised, among other grounds, the general reliability of DNA evidence using the LCN process including its lack of validation, the limited research, the absence of protocols, disputes over interpretation and the scope of evaluation. Leave to appeal was given in each case on this and other grounds. In each appeal, leave was also sought to adduce fresh evidence under s.23 of the Criminal Appeal Act 1968; that evidence was contained in expert reports provided by Professor Jamieson who had not given evidence at either trial. In other cases where DNA evidence obtained by the Low Template DNA has been relied upon, criticisms similar to those made in R v Hoey have been made, often by Professor Jamieson.
These two appeals were therefore listed together for hearing on the basis that the Court would hear de bene esse evidence as to the reliability and evidential value of Low Template DNA evidence, primarily that which had been obtained using the LCN process and then determine whether to admit that evidence. Directions were given by the court at a directions hearing for the service of evidence in relation to that general issue. The court was told at a hearing in July 2009 that the appellants would rely on a pro bono opinion provided by Dr Krane, in addition to calling Professor Jamieson. This was not provided. Instead the appellants provided a report in September from Dr Bruce Budowle, a professor at the Department of Forensic and Investigative Genetics at the University of North Texas; he had been a senior scientist in the FBI's Laboratory Division and had been involved in the development and validation of DNA processes. The appellants sought leave to call Dr Budowle and that legal aid be extended to cover his attendance, as it still appeared that there was a general challenge to the use in evidence of profiles obtained from Low Template DNA. The Crown sought leave to call Dr Adrian Linacre, a senior lecturer in forensic science at Strathclyde University who had been a member of Professor Caddy's review, Mr Andrew Rennison, the Forensic Science Regulator, and others experienced in Low Template DNA. Witness Statements were served containing extensive materials in relation to the general reliability of Low Template DNA analysis and in particular the LCN process.
However, very shortly before the hearing of the appeals, both appellants abandoned, in circumstances we explain at paragraphs 62 and following, their general attack on the reliability of Low Template DNA evidence using the LCN process. Although, therefore, in the event, the reliability of DNA profiles obtained from Low Template DNA through the LCN process in general was not directly before us, it became clear that the circumstances in which the reliability of Low Template DNA profiles obtained through the LCN process can be called into question can be described within the narrow compass which we set out at paragraphs and following. We nonetheless heard evidence de bene esse from Professor Jamieson, Dr Budowle, Dr Linacre and Valerie Tomlinson (an officer of the Forensic Science Service) in relation to this issue as well as the other issues on the appeal which we must summarise along with an outline of the evidence before turning to the detail of DNA profiling and the analysis of Low Template DNA.
The course these appeals took required a great deal of work from counsel and those assisting them. We would like at the outset to pay tribute to the skill and diligence with which these appeals were conducted.
(2) An outline of the evidence and issues in each appeal
(i) Reed & Reed
12. David Reed and Terence Reed were convicted at the Crown Court at Teesside before Keith J and a jury on 7 August 2007 of the murder of Peter Hoe. Peter Hoe lived alone at a house in Eston; on the evening of 12 October 2006 he was dropped off by a friend at about 2100; his body was found at 1300 on 13 October 2006. He had been stabbed many times.
Two pieces of plastic which the Crown contended were parts of two separate knife handles were found near Peter Hoe's body. One (AC/3) had revealed cellular material which matched the DNA profile of Terence Reed and the other (AC/4) cellular material which matched the DNA profile of David Reed and Peter Hoe. The match probabilities were such that it was accepted to be their DNA. AC/4 fitted the blade of a knife which was found in a drain at Peter Hoe's address. In addition to that evidence, the Crown contended, primarily on the basis of a message left on a mobile telephone, that the murder was at or shortly after 2100 on 12 October. Observations of the appellants in the vicinity of Peter Hoe's house and cell site evidence showed that both appellants had had the opportunity to kill Peter Hoe at about that time; there was also evidence of motivation. The Crown also relied on the purchase by Terence Reed of an Adidas tracksuit top on the day following the killing, the purchased item being identical to the top that he had been wearing on the night of the killing. It was their case that he had had to dispose of the one he was wearing because it had become bloodstained.
The defence case was one of alibi. A challenge...
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