R v Richard Bates

JurisdictionEngland & Wales
JudgeLord Justice Moore-Bick
Judgment Date07 July 2006
Neutral Citation[2006] EWCA Crim 1395
CourtCourt of Appeal (Criminal Division)
Docket NumberCase No: 200503241C3
Date07 July 2006

[2006] EWCA Crim 1395

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CENTRAL CRIMINAL COURT

Mr. Justice Fulford

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Moore-bick

Mr. Justice Burton And

Sir Richard Curtis

Case No: 200503241C3

200503241C3*1

Between
Regina
Respondent
and
Richard Bates
Appellant

Mr. Charles Miskin Q.C. and Mr. Mark Fenhalls (instructed by Kenneth Bush) for the appellant.

Mr. John Hilton Q.C. and Mr. Philip Bennets (instructed by the Crown Prosecution Service) for the respondent.

Lord Justice Moore-Bick

1. Background

1

On 3 May 2005 in the Central Criminal Court before Fulford J. and a jury the appellant, Richard Bates, was convicted of murder and was sentenced to life imprisonment with an order that he serve a minimum term of 20 years. His co-accused, James Garside, was also convicted of murder and received the same sentence. The victim was Marilyn Garside, the estranged wife of James Garside. It was the prosecution's case that Garside had hired Bates to murder her.

2

Marilyn Garside was stabbed and killed on 2 nd October 2001 when she answered the front door of her elderly mother's house in Rose Lane, Romford. The prosecution alleged that Garside was the only person who knew that Marilyn would be visiting her mother, Mrs. Barbara Rawle, that day and that she would answer the door rather than her mother, who walked with difficulty.

3

At about 5:45 p.m. that afternoon someone rang the doorbell of Mrs. Rawle's house and Mrs Garside went to answer it. As she opened the door she was stabbed several times and fell to the ground. Mrs. Rawle, who had gone to her assistance, saw a man walking slowly away from the house towards the garden gate. She was afraid that he might return, so she shut and locked the front door. She did not see the man reach the gate but when she looked out again he had left and had closed the gate behind him. Mrs. Rawle summoned an ambulance, but her daughter died soon after the attack. As a result of the attack there were bloodstains in various places on and around the door. Blood stains were also found on top of the wooden gatepost and on the gate latch.

4

The appellant and Garside were tried together at the Central Criminal Court between April and June 2003. It was the appellant's case that Marilyn Garside had been murdered on the instructions of her husband who had hired an unknown person to kill her. In support of its case that the appellant was the murderer the prosecution relied in part on partial profile DNA evidence which it submitted tended to show that the appellant had been present at the scene of the crime.

5

For much of the trial the prosecution kept open its position in relation to Garside, but after the evidence was complete it took the view that it could not invite the jury to convict him otherwise than on the basis that he had engaged the appellant to carry out the murder. As a result, despite objections from the appellant's counsel, the judge in his summing up directed the jury that they should consider the case against Garside only if they had already reached the decision to convict Bates.

6

In due course, on 19 th June 2003, both men were convicted of the murder of Marilyn Garside. The appellant then sought leave to appeal against his conviction on two grounds: one relating to the admissibility of the DNA evidence, the other relating to the judge's direction that the jury should only consider the case against Garside if they had already reached a decision to convict the appellant (what later became known as the "path to conviction"). The application was referred by the single judge to the Full Court which on 2 nd July 2004 gave leave to appeal on the second ground and quashed the conviction: [2004] EWCA (Crim) 1751. It did so, however, only because it was satisfied that counsel had misunderstood the effect of the judge's ruling and that as a result the appellant had not had the benefit of the final speech to which he was entitled. In those circumstances the court did not find it necessary to consider the first ground of appeal and, having quashed the conviction, ordered that there should be a re-trial. However, it is relevant to mention that in the course of giving judgment Hooper L.J. said that, given the way in which the prosecution had presented its case, Garside would have been denied a fair trial if the judge had left the case against him on an alternative basis and that the judge had given the only direction that he could have given under the circumstances.

7

Following the quashing of the appellant's conviction Garside also lodged an appeal against conviction. His appeal was allowed and a re-trial was ordered in his case as well. As a result a second trial of both men took place at the Central Criminal Court before Fulford J. between February and May 2005.

8

At the second trial the prosecution made it clear from the outset that its case was that Garside had hired the appellant to kill his wife and that it would not invite the jury to convict him unless they were sure that appellant had committed the murder. In support of its case that the prosecution sought to rely on the same partial profile DNA evidence as had been adduced at the first trial. Having held a voir dire, the judge ruled that the DNA evidence was admissible and in due course it was placed before the jury. As at the first trial the judge directed the jury that they could not convict Garside unless they were sure that the appellant was the person who had killed Marilyn Garside. In so doing he no doubt had in mind what this court had said when giving judgment on the first appeal.

9

The appellant sought leave to appeal against his conviction on the same two grounds as before. The single judge gave leave on the first ground, which had not been considered by the court on the previous occasion, but referred the application on the second ground to the Full Court.

2. The nature of DNA evidence

10

In R v Doheny & Adams [1997] 1 Cr. App. R. 369 Phillips L.J. gave a succinct description at pages 371–372 of the nature of DNA itself and the process by which it is analysed in order to determine the statistical likelihood that the sample of material from which it was taken came from a particular person. However, it was common ground on the present appeal that the techniques now in use, although in substance the same as those described in that case, involve an extension and refinement of those that were in use in 1990 when that case was being prepared for trial. The jury in the present case were provided with a simplified summary of the nature of DNA and the techniques now adopted in the analysis of samples under investigation and we think it may be useful to describe those features of the process which have a particular bearing on the present appeal by reference to that summary. The process currently employed is known as 'SGM Plus', but no doubt as time goes on the techniques we describe will be further extended and refined and this summary will become out of date in its turn.

(a) The process of analysis

11

As is well-known, DNA is a complex molecule in the form of a double helix. DNA analysis ultimately relies on the fact that different regions (or "loci") contain repeated blocks of material known as "alleles". The loci are given individual designations ("D3", "D8" etc.) and the analysis is directed to 10 loci at which the alleles are known to vary widely between individuals. Although the loci at which the alleles are found are the same in everyone, the number of blocks making up the alleles at each locus differ from person to person. An allele formed of 17 blocks would be described as "allele 17". At each locus there are two alleles, one inherited from the father and one from the mother, so, for example, a person might have alleles 14 and 17 at locus D3. That is normally designated "D3 14, 17". In addition to the 10 loci the analysis also includes a sex indicator, amelogenin. This is 'X,X' in females and 'X,Y' in males.

12

A person's DNA profile is currently built up by reference to the alleles present at the chosen 10 loci and the sex indicator. This represents an advance on previous techniques which we understand were limited to 6 loci. In due course it may be possible to refine the technique still further by including additional loci. The identification of alleles is carried out by gel electrophoresis. This process uses an electric current to draw samples of DNA through a gel and separate the alleles. Lasers are used to detect coloured markers that have been applied to the sample earlier in the process and the resulting data are fed into a computer which produces the results in graphical form. The interpretation of the graphs calls for a high degree of skill and experience and can give rise to differences of opinion, as indeed occurred at the trial in the present case. However, it is unnecessary to describe that aspect of the process in any greater detail because it was accepted that for the purposes of the appeal the summary of the results produced by the prosecution could be accepted as correct.

13

If a fresh sample of DNA from a single contributor is obtained the analysis will produce a complete profile for the person from whom it was taken. Such a profile will identify 2 alleles at each of the 10 loci together with the sex indicator. (We use the term "complete profile" in the sense that it is complete in relation to the 10 loci analysed, although many other loci exist in respect of which no analysis is undertaken.) When testing material for a match with a particular suspect the first step, therefore, is to obtain a complete profile of the...

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