R v Smith (Joe)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE OTTON |
| Judgment Date | 05 December 2000 |
| Judgment citation (vLex) | [2000] EWCA Crim J1205-7 |
| Court | Court of Appeal (Criminal Division) |
| Date | 05 December 2000 |
| Docket Number | No: 99/7554/Z3 |
[2000] EWCA Crim J1205-7
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand London WC2
Lord Justice Otton
Mr Justice Hidden and
Sir Richard Tucker
No: 99/7554/Z3
MISS A DARLOW appeared on behalf of the APPELLANT
MR D ATKINSON appeared on behalf of the CROWN
Tuesday 5th December 2000
In the Crown Court at Southwark, before His Honour Judge Robbins, the appellant was convicted of burglary and sentenced to four years' imprisonment. He appeals against conviction by leave of the single judge.
The background can be briefly stated. In the afternoon of 19th May 1999 the main window of a shop called 'Watches of Switzerland', in Regent Street in London, was smashed and five expensive Rolex watches worth over £35,000 were stolen together with their display stands. The shop's assistant manager heard the window break and ran to see what had happened. He looked towards Oxford Circus and briefly saw two men running away. The police attended the scene shortly afterwards. They searched the area and found five display stands in a nearby street, one of which was splashed with blood. There was also blood on the pavement. It was the prosecution case that the appellant was one of the burglars.
Seven days later, on 26th May, the appellant was arrested. He was taken to a police station. When there, a hair sample was taken from him without his consent after he had been initially interviewed.
The DNA profile obtained from the hair sample was compared with the blood sample from the display stand. The prosecution relied on expert evidence to the effect that there was a match between the two. No identification procedures were instituted, given that the witnesses saw the two offenders only briefly.
It is to be noted that the forensic expert, Miss Heidi Baker, stated:
"The DNA profile of the blood recovered from the display box was found to match the reference DNA profile of Joe Smith. If the blood did not come from Joe Smith then his DNA profile must have matched by chance. It is estimated that the probability of obtaining matching profiles if the blood came from someone other than and unrelated to Joe Smith is 1 in 30 million. This figure is the most conservative of those calculated for the Caucasian, Afro-Caribbean and Asian populations."
The defence case was that the appellant had been in the West End to shoplift that afternoon and had handled the stand thinking there might be a ring inside it. He had just cut his finger on and then bled on to the display stand. He had lied in interview when he gave an alibi because he was scared of the consequences of telling the truth and did not think he would be believed anyway. It is not necessary to go into any other part of the evidence for the purpose of this appeal.
At the beginning of the trial, the prosecution made an ex parte public interest immunity application, following which the judge ordered that the material was sensitive and should not be disclosed. The appellant's counsel, Miss Darlow, who appeared at trial and before this Court, having been notified of the application and ruling, submitted that there was no evidence that the officers in the case had reasonable grounds to arrest the appellant or to suspect him of involvement in the offence for which he was arrested. She mounted a powerful and learned argument before His Honour Judge Robbins and sought to rely on Articles 5 and 6 of the European Convention of Human Rights.
The learned judge came to the conclusion and ruled that he was satisfied that the police had reasonable grounds for suspecting that the offence had been committed by the appellant when they took the hair sample without the appellant's consent. The suspicion was based on information that could not be disclosed because of its sensitive nature and was the subject of the PII application. The appellant had been informed of the reason for his arrest in accordance with Article 5(2). The appropriate authority had been properly given for the sample of hair to be taken without consent; and having regard to the requirements of Article 6 and section 78 of the Police and Criminal Evidence Act and weighing all relevant matters in the balance, the defence application was refused.
The evidence was then called, including that of the appellant. The jury duly convicted.
Miss Darlow submitted that the learned judge erred in the exercise of his discretion under section 78 of the Act in refusing to exclude (a) the evidence derived from a non-intimate sample provided by the appellant (that is the hair sample) and (b) the content of the interviews with the appellant on 26th May and 24th June. The latter point has not been pursued for the purposes of this appeal, which centres principally on the procedure which was adopted on the PII application. She submitted that the judge was wrong to determine that, in reaching his decision, he could take account of material which had been the subject of the ex parte PII application and which had never been disclosed to the defence, nor had the defence ever been told of the category of material involved.
Counsel developed the argument skilfully in a well-prepared skeleton argument. She submitted that, when one looks at the framework of the domestic law and of the law emanating from the European Union, the learned judge fell into error. He correctly ruled that, in order to adduce the evidence, the prosecution had to establish that the investigating officer had reasonable ground for suspicion. However, he wrongfully determined that the court could satisfy itself of the existence of such grounds solely on the basis of the content of the ex parte hearing, the very category of which was not revealed to the defence. The failure of the prosecution to adduce any evidence in court to meet a point that was in issue, namely the existence of reasonable grounds, should have resulted in the exclusion of the challenged evidence. Moreover, there were breaches of Articles 5 and 6 of the European Convention, now enshrined in the Human Rights Act 1998. These breaches were not properly taken into account by the learned judge in determining his ruling.
Mr Atkinson, who appeared at trial, contended that the learned judge was correct in reaching the decision that he did. He was entitled to find that the officers had reasonable cause to suspect the defendant of the offence at the time of his arrest and that they skill had reasonable cause to suspect the defendant of the offence at the time at which the sample was taken from his body. The judge was entitled to reach these findings on the basis of the material which was placed before him during the ex parte hearing. The use of the ex parte hearing did not infringe the 'equality of arms' principle enshrined in Article 6 of the Convention. The learned judge was correct to find that there had been no breach of PACE in relation to the information the appellant was given as to the grounds for his arrest and at the time at which the sample was taken. Moreover, the amount of information given did not infringe the appellant's right guaranteed by Article 5(2) of the Convention. Even if there had been a breach of either PACE or the Convention, this would not require the exclusion of the evidence in question by virtue of the court's discretion under section 78.
In reaching our conclusions, we start with the uncontroverted fact that there was no evidence before the jury to show that the police had reasonable cause to suspect the appellant of the instant offence. To establish a reasonable suspicion it is not necessary for a police officer to possess evidence which amounts to a prima facie case: see Dunbell v Roberts [1944] 1 All ER 326.
In Shabaab Bin Hussein and Chong Fook Kam [1969] 3 All ER 1626, Lord Devlin in the Privy Council stated as follows at 1630C:
"Suspicion in its ordinary meaning is a state of conjecture or surmise where proof was lacking, 'I suspect but I cannot prove'. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end."
In O'Hara v Chief Constable of Royal Ulster Constabulary [1997] AC 286, Lord Steyn at 293C stated:
"… information from an informer or a tip-off from a member of the public may be enough."
Thus there is only a limited amount that has to be proved in order to establish a reasonable suspicion. This is an objective test and not a subjective test. It is not required that there should be an honest belief by a police officer in England and Wales, although the contrary is the situation in Northern Ireland.
Lord Hope in O'Hara adopted with approval the dicta of Sir Frederick Lawton in Castoria v Chief Constable of Surrey (The Times, June 15, 1988):
"Suspicion by itself, however, will not justify an arrest. There must be a factual basis for it of a kind which a court would adjudge to be reasonable."
Other authority shows that suspicion can take into account matters which could not be adduced at all, for example, hearsay evidence. There are dicta to the effect that the manner in which the information was obtained may even extend to material which is improperly obtained but within circumscribed limits, including any specific requirements of a particular Act of Parliament —an aspect to which we shall return in a moment.
The information was improperly obtained it could still be relied upon, except in circumstances where the information had been obtained in blatant breach of a statute.
In R v B (hitherto unreported, May 26, 2000 CA), DNA evidence was retained after a previous enquiry and not destroyed, contrary to section 64(1) of...
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