Issue 8, September 10, 2012 Archbold - Archbold e-update 8-2012 v 3.pdf · Duress—whether threats of false imprisonment sufficient NGUYEN AND OTHERS [2012] EWCA Crim 1717; July

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Issue 8, September 10, 2012

Cases in briefDisclosure—avoidance of disclosure by failing to investigateJOOF AND OTHERS [2012] EWCA Crim 1475; July 4, 2012The disclosure responsibilities imposed by the Criminal Pro-cedure and Investigations Act 1996 and the Attorney-General’s Guidelines could not be sidestepped by not making an en-quiry. A police officer who believed that a person may have information which might undermine the case for the prosecu-tion or assist the case for the suspect or defendant cannot de-cline to make enquiries of that person in order to avoid the need to disclose what the person might say. The Court allowed appeals against conviction as a result of the failure to disclose a decision not to investigate a complaint by a Crown witness in a witness protection programme against an officer, lest the result of the investigation require disclosure; and a more seri-ous still failure to disclose a critical internal report into the unit responsible for the handling of the protected witness.

Duress—whether threats of false imprisonment sufficientNGUYEN AND OTHERS [2012] EWCA Crim 1717; July 31, 2012The appellants contended that the threats necessary to establish the defence of duress should include the threat of false imprisonment as well as the threat of death or se-rious injury. Had the jury been so directed, the evidence was such that they would nevertheless inevitably have been convicted so their convictions were safe. However, the Court, obiter, gave its provisional view that a threat of false imprisonment would not suffice for the defence of duress, without an accompanying threat of death or serious injury. The issue had not been resolved by authority, but such a widening of the defence would be ill-advised, a conclusion supported by pointers in the more recent authorities and by considerations of policy (Lord Simon of Glaisdale’s speech in DPP v Lynch [1975] A.C. 653 at 686; DPP v Howe [1987] A.C. 417; Graham (Paul) [1982] 1 W.L.R. 294; Steane [1947] 1 K.B. 997; Bourne (1952) 36 Cr.App.R. 125; Abdul-Hussain and others [1998] EWCA Crim 3528; Z [2005] 2 A.C. 467; M(L) and others [2011] 1 Cr.App.R. 12; The Crown Court Benchbook (March 2010), at p.306, fn.566 and Archbold (2012), paras 17–120—17–121 considered). Further, noth-ing in the Council of Europe Convention on Action against Trafficking in Human Beings art.26, as interpreted in M(L)

and N; Le [2012] EWCA Crim 189, required the extension of the scope of the defence of duress.

Electronic communications—Offence contrary to Communi-cations Act 2003 s.127—whether tweet a message on a public electronic communications network—messages of a menac-ing character—actus reus—mens reaCHAMBERS v DPP [2012] EWHC 2157 (Admin); June 27, 2012(1) A tweet was a message sent on a public electronic com-munications network, for the purposes of Communications Act 2003 s.127. That the twitter social networking platform was owned by a private company was irrelevant. It operated through the internet, a public electronic network provided for the public and paid for by the public through internet service providers.(2) It was not necessary, for a message to be of a “men-acing character” (s.127(1)(a)), that the message must be credible as an immediate threat to the mind of an ordinary person. A message which could not or was unlikely to be implemented may still create a sense of apprehension or fear in the mind of the recipient. But unless the message does create such a sense, it could not be described as being of a menacing character. If the person or persons who re-ceive or read the message, or may reasonably be expected to receive, or read it, would brush it aside as a silly joke, or a joke in bad taste, or empty bombastic or ridiculous banter, then it could not be described as a message of a menacing character. A message which did not create fear or apprehension in those to whom it was communicated,

CONTENTS

Cases in brief ........................................................1

Sentencing case ....................................................3

Case in detail .........................................................4

Feature ..................................................................5

In the news ............................................................8

Book review ..........................................................9

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or who may reasonably be expected to see it, fell outside the provision. The Crown Court had read too much into the observation of Lord Bingham in Director of Public Prosecu-tion v Collins [2006] 1 W.L.R. 2223 that the criminality of the sender could not depend upon whether a message was received by A or by A’s reaction. Lord Bingham was say-ing no more than that a message proved by an objective assessment to be of a prescribed kind did not cease to be so just because it was not received or because the person who received it was not menaced. This did not mean that the effect of the message on those who read it was to be excluded from consideration. On an objective assessment, it was not open to the Crown Court to find that C’s tweet on discovering that bad weather had closed an airport (“Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!”) constituted a message of a menacing character.(3) Obiter, the mental element of the offence was satisfied if the offender was proved to have intended that the message should be of a menacing character or if he was proved to have been aware of or to have recognised the risk at the time of sending the message that it may create fear or apprehension in any reasonable member of the public who read or saw it.

Evidence—bad character—evidence of motive—whether evi-dence “to do with” offence charged (Criminal Justice Act 2003 s.98)SULE [2012] EWCA Crim 1130; May 23, 2012The exclusion of evidence that “has to do with” the offence charged from the definition of bad character evidence (Criminal Justice Act 2003 s.98) was straightforwardly ex-pressed and clearly applied to evidence of incidents alleged to have created the motive for the offence charged. In such circumstances, there was no requirement for temporal proximity between the incidents relevant to motive and the facts on which the offence charged was based, and it would be irrational to introduce one. McNeill [2007] EWCA Crim 2927 and Tirnaveaunu [2007] EWCA Crim 1239; [2007] 2 Cr.App.R. 23 did not support the contrary contention.

Evidence—hearsay—Criminal Justice Act 2003 s.116—na-ture of conditions—causation—s.116(5)—whether applied only to events after commencement of proceedingsROWLEY [2012] EWCA Crim 1434; July 3, 2012(1) The Criminal Justice Act 2003 s.116(2)(c) and (d) rendered hearsay evidence admissible, subject to subs.(5), if certain conditions were satisfied. Whether the conditions themselves were satisfied was a question of fact, as was the question whether subs.(5) applied. If the requirements of the section were not satisfied, the evidence was not admissible. Admis-sibility did not depend on the exercise of judicial discretion.(2) It was sufficient for the purposes of subs.(5) that the action of the party seeking to adduce the hearsay evidence should have been an effective cause, albeit not the only cause, of the witness’s absence.(3) Although the reference to “the proceedings” in subs.(5) must refer to the proceedings in which it was sought to adduce the evidence, the subsection was not limited to steps taken after the commencement of the proceed-ings. The purpose of the provision was to prevent the person who was responsible for the absence of the wit-ness from adducing his evidence in the form of hearsay. It was of no relevance whether the proceedings had or had

not been started at the time when the relevant acts were performed. The only question was whether the acts were done in order to prevent the attendance of the witness at the proceedings.

Evidence—of interview following waiver of right to legal rep-resentation—undisclosed practice of allowing disclose to legal representatives but never to unrepresented detainees—wheth-er rendered waiver invalidSAUNDERS [2012] EWCA Crim 1380; June 26, 2012S argued that her waiver of legal assistance was not valid be-cause it was made in ignorance of the interviewing officer’s unvarying practice of offering pre-interview disclosure to a legally represented defendant but not to one without repre-sentation. Although there was no authority which directly dealt with the effect of a failure to explain the disadvantage of non-disclosure to which a suspect may be exposed should she decline legal representation, the relevant principles were to be found in McGowan v B [2011] 1 W.L.R. 3121. Waiver must be voluntary, informed and unequivocal, but may be effective even though the detainee could not be shown to have appreciated all the consequences of the decision. In as-sessing the validity of her waiver, the court had to consider two factors: first, the extent of her knowledge and second the extent to which her decision, in ignorance of the officer’s practice, caused her disadvantage. On the facts of the case, S was neither unintelligent nor vulnerable and had experience of criminal proceedings; and she was not placed at any real disadvantage during the interview process. She may, as she complained, have been surprised during the interview, but that provided no warrant for saying that she did not effec-tively waive her right to legal advice. Surprise may, from time to time, be a legitimate weapon for a questioner to deploy. In any event, the presence of a legal adviser may not prevent a detainee from being surprised or confronted with the ac-cusations the police make in interview; and the Court did not believe that she did not understand the gravity of the allega-tions. But even if she had been at some disadvantage, that was not enough. Given her background, her decision was in-formed and her waiver effective. The Court noted, however, that the trial judge’s reason for finding the waiver effective—that disclosure was essential for a solicitor, but irrelevant to a defendant—was too rigid and inflexible. There may well be cases where fairness required that a detainee be afforded pre-interview disclosure to understand the nature of the po-lice enquiry and so be in a position to know whether legal advice would assist or not. The inflexible practice adopted by the officer and endorsed by the judge ran a serious risk of depriving a detainee of necessary information before the decision whether to waive was made.

Robbery—“force”—removal of cigarette from fingers of victimRP AND OTHERS v DPP [2012] EWHC 1657 (Admin); May 25, 2012The snatching of a cigarette from between the fingers of the victim was not capable of amounting to the use of force upon the person of the victim, such as to constitute robbery. The Court so concluded following an analysis of the differ-ences between the law before and after the enactment of the Theft Act 1968, and considering Dawson & James [1977] 64 Cr.App.R. 170; Clouden Crim.L.R. 56 and academic writ-ings. The case fell squarely on the side of pick-pocketing

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and such like, in which there was no direct physical contact between thief and victim. It could not be said that the mini-mal use of force required to remove the cigarette amounted to the use of force on the victim. It could not cause any pain unless, perhaps, the person resists strongly, in which case inevitably there would be direct physical contact between the thief and victim as well. The unexpected removal of a cigarette from between the fingers of a person was no more the use of force on that person than would be the removal of an item from her pocket. This offence was properly cat-egorised as simple theft.

Trial—submission of no case to answer—circumstantial evi-dence—statement of “test”—applicationGODDARD AND FALLICK [2012] EWCA Crim 1756; July 27, 2012G and F argued that the judge should have allowed a submis-sion of no case to answer in their trial for conspiracy to rape a child, there being no external evidence of “executory intent” in relation to an exchange of texts discussing such a rape on a day three years before their arrest, even if there was suf-ficient evidence of agreement. In respect of the proper test to be adopted on a submission of no case where the relevant fact could only be inferred from other facts as proved, the Court concluded that (a) the judge should always apply the classic or traditional test set out by Lord Lane C.J. in Gal-braith (1981) 73 Cr.App.R. 124; (b) where a key issue was whether there was sufficient evidence on which a reasonable jury could be entitled to draw an adverse inference against the defendant from a combination of factual circumstances based upon evidence adduced by the prosecution, the exer-cise of deciding that there was a case to answer did involve the rejection of all realistic possibilities consistent with in-nocence; (c) however, most importantly, the question was whether a reasonable jury, not all reasonable juries, could, on one possible view of the evidence, be entitled to reach that adverse inference (considering Hedgcock, Dyer and Mayers [2007] EWCA Crim 3486; Kwan Ping Bong v R. [1979] A.C. 609; Jabber [2006] EWCA Crim 2694 and Anthony Darnley [2012] EWCA Crim 1148). In G and F’s case, the submission should have been allowed: all of the evidence was equivocal, being (at least) as consistent with the creation of a sexual fantasy as with an intent to carry out the plan.

Trial—procedural errors in application of Crime and Dis-order Act 1998 Sch.3 para.7—whether rendered subsequent trial a nullityGUL [2012] EWCA Crim 1761; July 31, 2012G was charged with an indictable only offence and sent to the Crown Court on that charge. The indictment that was signed at the plea and case management hearing contained only six triable either way offences. At the plea and case management hearing the procedure required by the Crime and Disorder Act 1998 Sch.3, para.7 was not followed. G argued that his subsequent trial was a nullity. The Court could not simply follow Thwaites [2006] EWCA Crim 3235, which decided that in this situation the trial had not been a nullity (a conclusion the Court came to by not following Haye [2002] EWCA Crim 2476 and Gayle [2004] EWCA Crim 2937, on the strength of the approach taken in Sekhon [2003] 1 W.L.R. 1655 and Soneji [2006] 1 A.C. 340 (HL), in accordance with Ashton and Others [2007] 1 W.L.R. 181), in the light of the subsequent reasoning in the House of

Lords in Clarke and McDaid [2008] 1 W.L.R. 338. The Court must therefore return to first principles and ask whether, when properly examined, there had been effective non-compliance with Sch.3, para.7, and if there was, whether Parliament intended the consequence of non-compliance with these provisions to render any subsequent proceed-ings a nullity. At the hearing, in effective accordance with para.7, the defendant was asked whether he would plead guilty or not guilty to each of the counts. He indicated that he would plead guilty to three lesser alternative counts. Thus, the court had to proceed in relation to those three counts as if he had been arraigned and pleaded guilty to them in the Crown Court. There was no question of sum-mary trial of these counts (Sch.3, para.7(6)). That brought any possibility of summary trial to an end and therefore had the same effect as the presence on the indictment of an in-dictable only offence. The idea that the proceedings should be addressed in separate jurisdictions was utterly remote. On these facts, non-compliance with the objective of para.7 was not established. Even if that were not the case, the trial would not have been a nullity. The responsibility for consid-ering whether any counts to which the appellant pleaded not guilty were more suitable for summary trial or trial on indictment was vested exclusively in the court. It was the defendant’s right only to make representations. If he had wished to make representations for summary trial, there was nothing that would have stopped him making an ap-plication to do so. If the failure to seek representations had been a deliberate step, it might have constituted an abuse of process. That however was not this case. The omission of the procedural step did not vitiate the indictment or the process before the Crown Court. In these circumstances it was inconceivable that Parliament intended that the conse-quence of non-compliance would be to render subsequent proceedings in the Crown Court a nullity. The Court noted that the offences under consideration were clearly too seri-ous for summary trial, and it had never been suggested that either party would have sought summary trial.

SENTENCING CASEFood safety offences—whether hygiene prohibition order ap-propriateCRESTDANE LTD [2012] EWCA Crim 958; April 26, 2012A hygiene prohibition order made under the Food Hy-giene (England) Regulations 2006, together with fines totalling £51,000, in respect of a company operating a sub-stantial restaurant which committed repeated breaches of the food hygiene regulations, upheld. There was no current guidance on the Food Hygiene (England) Regu-lations 2006, nor on the principles which should be ap-plied when the court came to consider the imposition of hygiene prohibition orders. It was clear that the hygiene emergency prohibition order was intended to deal with immediate threat to public health by food contamination. If a kitchen was clean, and if proper food handling proce-dures were in place, the immediate danger might pass, so that the premises might reopen. The power to impose a hygiene prohibition order on the operator remained. The regulation stated that the court before whom a food busi-ness operator was convicted of an offence might impose a prohibition if it thought it proper to do so in all the circum-

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stances of the case. The power was not limited to cases where closure of the premises was necessary in the inter-ests of public health, nor, in the court’s judgment, should such a limitation be put on the general words which the regulations omitted. The protection of the public against a present or future risk of injury was one of the relevant con-siderations. Even if by the time of the hearing, conditions in the kitchen had improved and the immediate danger to the public had passed, with the result that the hygiene emergency prohibition order had been lifted, the court might conclude that there was such a risk of some future breach of the regulations, carrying with it such obvious dangers to the public health, that the court should pro-hibit the operator from future management of a food busi-ness. If the company could not be trusted to be a food busi-ness without creating a serious risk to public health, then a hygiene prohibition order would be necessary. Regard-less of future risk, the facts of any particular offence might alone justify the imposition of a hygiene probation order. There should be a sharp focus on the number, nature and extent of the offences proved against a defendant. A series

of long standing breaches accepted or condoned by the management presented a greater risk of future incidents than an isolated lapse by a particular individual; but a sin-gle incident might have been so serious and could have had such disastrous consequences that the court might think it proper to impose the prohibition in all the circum-stances of the case. Improvements made after the event were obviously relevant, but protestations of future good conduct should be regarded with caution and even scepti-cism if there was a long history of previous breaches. In sentencing any particular offender for such offences, the court should always have in mind that the imposition of or the upholding of a hygiene prohibition order was likely to send out a powerful message to others working in the food industry that they must strictly comply with requirements of rigorous food hygiene. If they failed to do so and seri-ous breaches of the regulations resulted, then a conviction might be visited with an order preventing the defendant from future involvement in running a food business. De-terrence should always be an important consideration.

Case in detailR. (HICKS AND OTHERS) v COMMISSIONER OF POLICE OF THE METROPOLIS [2012] EWHC 1947 (Admin); July 18, 2012This case involved a large number of applicants, in four differ-ent claims, all arising out of policing at the time of the Royal Wedding of April 2011. The first involved the legality of the arrests of 15 different claimants, the second the arrest of a 16 year old boy, the third and fourth concerned the legality of the search of squats and an environmental camp. None of the claimants were subsequently charged with any offence. The central issue was whether the police operated a policy, or prac-tice on the ground, of equating intention to protest with inten-tion to cause unlawful disruption and whether they adopted an impermissibly low threshold of tolerance for public protest, resulting in the unlawful arrest of people who were viewed by the police as being likely to express anti-monarchist views. The individual claims raised numerous further issues concerning the lawfulness of the actions taken by the police, engaging the law relating to breach of the peace, general principles of public law, specific statutory powers and several articles of the Euro-pean Convention on Human Rights.In a 270 paragraph judgment, the Administrative Court dismissed all the claims. The Court held that a risk of vio-lence against protestors is a legitimate ground to intervene against them. The Court also rejected the argument that there had been an unlawful blanket policy to prevent any and all demonstrations that day.The Court considered Platform “Artze fur das Leben” v Aus-tria (1988) 13 E.H.R.R. 204, which concerned anti-abortion demonstrations and an allegedly insufficient protection by the state against disruption by pro-abortion supporters. The European Court of Human Rights there held (at para.32) thatIn a democracy the right to counter-demonstrate cannot extend to inhibit-ing the exercise of the right to demonstrate. Genuine, effective freedom of peaceful assembly cannot, therefore, be reduced to a mere duty on the part of the State not to interfere: a purely negative conception would not be compatible with the object and purpose of Article 11. Like Article 8, Article

11 sometimes requires positive measures to be taken, even in the sphere of relations between individuals, if need be.

The claimants relied on this to argue that if anti-monarchist protests were thought likely to give rise to a violent reac-tion on the part of those celebrating the Royal Wedding, the duty of the police in those circumstances would be to protect the anti-monarchist protesters from such violence if it occurred, rather than to prevent them from engaging in the protest liable to prompt the violence. However, relying on Steel v UK (1999) 28 E.R.H.R. 603 as well as other Euro-pean and domestic cases, the Court said (at para.123) thatWe do not accept that the case has that effect. The likelihood that protest may lead to violence against the protesters themselves can be an entirely le-gitimate ground for police intervention against the protesters under the do-mestic law of breach of the peace which is discussed below and which, as is clearly established, is capable of operating compatibly with the Convention.

The Court held that there was no unlawful policy or practice. The arrests were not disproportionate. Nor were the arrests rendered unlawful by the fact that the arresting officers were in some cases instructed by superior officers to make them.

Applying the reasoning in R. (GC) v Commissioner of Police of the Metropolis [2011] UKSC 21 and R. (RMC and FJ) v Commis-sioner of Police of the Metropolis [2012] EWHC 1681 (Admin), the indefinite retention of fingerprints, DNA and photographs pursuant to the existing policy was in breach of Art.8 of the European Convention on Human Rights but it was right to al-low the defendant the reasonable further period referred to in RMC and FJ to revise his policy and to re-assess the retention of photographs in the light of the revised policy. No specific relief was therefore granted. In relation to the searches, whilst there may have been a “technically well founded” point on a breach of s.16(10) of the Police and Criminal Evidence Act 1984, the Court was not satisfied that the breach had caused the claim-ants any real injustice, let alone that it should lead to the invalida-tion of what were otherwise lawful searches.

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[Comment: This judgment was handed down just before the opening of the Olympics. Does that explain why it tolerates these pre-emptive arrests so readily? For James Richardson Q.C. (in Criminal Law Week 2012/30/3) the court’s “lame response” is “truly shocking”. More worrying may be the long-term ef-

fects on public confidence in the police when the threshold of tolerance for minor public protest appears to be so low: the ex-ceptional nature of a Royal Wedding or indeed of the Olympics must not lead to the perpetuation of such over-bearing police practices as appear from the facts of some of these claims.]

FeatureDNA—analysis of complex mixed profiles, the new frontier?By David Bentley and Peter Lownds1

As with any science-based technique, the frontiers of DNA analysis are constantly being pushed forward. DNA sam-ples which just a few years ago would have been too small to generate intelligible results, are now routinely admitted into evidence, along with statistical evaluations of random match probabilities (RMPs). The Court of Appeal has also given clear guidance as to the limits of admissibility of such “low template” profiles, and as to how and when challenges can properly be made to such evidence.2

Such guidance has principally been given in relation to cases where “conventional” statistical analysis has then been made of a particular DNA profile. The maths behind this has been relatively straightforward, and has simply involved looking at how frequently particular alleles (or peaks) occur at particular loci (or areas of the DNA mol-ecule) that are being tested, as inferred from widely-used population databases, and then calculating the relevant probabilities. DNA profiles derived from a single individual have posed no significant problems, even where the profile is incomplete (or partial).It is in relation to mixed profiles that the conventional sta-tistical modelling has broken down. Where the mixture is (say) a two person mixture, with one of the profiles being clearly dominant, then generally a reliable RMP statistic can be given, at least for the major contributor. However, once the mixture shows signs of coming from three or more con-tributors, and the levels of DNA are sub-optimal (low level), then the current position has been for the scientist to report that some or all of the components of the suspect’s profile are represented in the mixture, that the suspect may have contributed to the mixture, but that the results are not suit-able for conventional statistical analysis. With an increased number of DNA contributors, there is an increased chance of finding matching DNA components by chance alone.Last year, we wrote about “low template” DNA, and touched on new methods of analysis.3 One such method was a com-puter model developed by Professor David Balding, Profes-sor of Statistical Genetics, at University College, London, specifically designed to generate RMP statistics from com-plex mixed profiles, which were beyond the scope of con-ventional analytical methods. An unsuccessful challenge had been made to the admissibility of version 2 of this software, but only at first instance—and it was not taken to appeal.4

1 Barristers at Doughty Street Chambers, London. Both were instructed on behalf of the defence in the trial and appeal of Broughton, and David was additionally instructed to represent DS.2 See Reed and Reed [2010] 1 Cr.App.R. 23.3 See [2011] 1 Archbold Review 6.4 Broughton, Oxford Crown Court, June–July 2010.

Version 3 of this software (able to deal with up to three unknown contributors) was used in evidence in several tri-als in 2011 and early 2012. It appears that its admissibility had hitherto not been contested. However in March 2012, the Crown sought to rely on it in a murder case,5 where a complex mixed profile to which the accused may have contributed had been found by the reporting scientist to be “unsuitable for conventional statistical analysis”. It had then been sent to Professor Balding, who was able to make a statistical evaluation. The defence successfully challenged its admissibility on the basis that the analytical technique (rather than the raw DNA results) was at that time insuffi-ciently validated (although the trial judge in his ruling also expressed his expectation that with further refinement and peer review, Balding’s technique would sooner or later be accepted, and routinely admitted in evidence).

ValidationThis concept, although perhaps obscure to lawyers, is a central factor in acceptance within the scientific community. Typically, scientists publicise a new development (often in a peer reviewed journal), and over a period of time other sci-entists scrutinise and comment on that development. In re-lation to DNA, for example, tests can be done using mixed samples from known contributors to establish the reliability of the particular method or approach.The need for a scientific approach to be properly validated was acknowledged in the case of low template DNA pro-files. In Reed and Reed [2010] 1 Cr.App.R. 23 the court held that expert scientific evidence is not admissible “where the scientific basis on which it is advanced is insufficiently reli-able for it to be put before a jury”. Although there is no en-hanced test for admissibility, if challenged, the court must decide “whether there is a sufficiently reliable scientific ba-sis” for the admission of the evidence. The court approved the Australian case of Bonython (1984) 38 S.A.S.R. 45, which held that the subject matter of the evidence must be part of “a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience”.This amounts arguably to a judicial formula for “validation”. It also follows the Caddy Review6 which was set up to review the science of low template DNA, after the acquittal of the ac-cused in the Omagh bombing trial,7 and the comments made by Mr Justice Weir on validation concerns. In its report to

5 DS, CCC, March 2012.6 Caddy, Taylor and Linacre, A Review of the Science of Low Template DNA Analysis (2008).7 Hoey [2007] N.I.C.C. 49.

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the Forensic Regulator, the authors reported that “external validation can only be achieved if the process is accepted by the wider scientific community.” One recommendation was that “any new methods of analysis used by a forensic service provider that will result in the presentation of evidence to the courts must be validated using appropriate and sound inter-nationally recognised scientific principles”.The Regulator has recently issued a code of practice8 for providers of science into the criminal justice system. Cen-tral to that code is the concept of validation, defined as “the process of providing objective evidence that a method, pro-cess or device is fit for the specific purpose intended.” In his foreword, the Forensic Regulator states: “I believe valida-tion is at the heart of any standards framework appropriate for this sector.”In DS, the trial judge heard from a scientist called on behalf of the defence9 that, in that scientist’s view, due principally to a debate over the method used to calculate “drop out”, the method was flawed. The trial judge dealt specifically with validation, stating:So far as validation of scientific work is concerned, what is essential...is a sufficient degree of assessment, through peer review, laboratory work and critical appraisal of methodology and technique, within the particular field of shared expertise—and carried out independently—such as will provide widespread, if not universal, acceptance and approval across the specific branch of the scientific community in which the work has been carried out. More often than not...such validation is found in the publication of the methodology and technique in respected scientific journals and by the presentation of papers to conferences and seminars, all intended...to prompt detailed assimilation and consideration by listeners and readers and in consequence, full opportunity for assessment and comment. The mere publication of a paper, or presentation at a seminar, would not, of itself, amount to validation.

Notably, the Law Commission too has been critical of what they had referred to as a “generally laissez-faire approach” to the admissibility of expert evidence in England and Wales.10 This current laissez-faire approach to validation leads to a real danger of a lack of a consistency in relation to admissibility, with one court finding a technique sufficiently validated, while another takes a different view of the same technique. Successful challenges to admissibility on this sort of very complex computer modelling will also often be dependent on the difficult task of finding experts who suf-ficiently understand both genetics and statistical computer modelling.In our view, what is urgently needed is a Reed-style guideline case to deal with these new computer-based analytical tech-niques, drawing doubtless on the services of the Forensic Science Regulator. It is of note that in T [2011] 1 Cr.App.R. 9 (a case relating to expert footwear mark comparison, and the use of likelihood ratios in the provision of an evaluative opinion where the statistical data were uncertain and incom-plete), at the request of the Court, the Regulator provided evidence regarding likelihood ratios which was said to be of “considerable assistance”. It is surely only a matter of time before such an appeal comes before the Court.

8 Available at www.homeoffice.gov.uk/publications/agencies-public-bodies/fsr/codes-practice-conduct?view=Binary9 Laurence Mueller, Professor of Ecology and Evolutionary Biology at the University of California, Irvine, USA.10 Law Commission Report (No.325): “Expert Evidence in Criminal Proceedings in England and Wales”. At para.3.36, they make the following recommendation on the reliability test, stating “we therefore recommend that there should be a statutory admissibility test which would provide that an expert’s opinion evidence is admissible in criminal proceedings only if it is sufficiently reliable to be admitted.”

Admissibility of DNA results in the absence of a statistical analysisMany practitioners had thought that, absent a statistical-ly-based likelihood ratio or random match probability, an opinion from a scientist as to the probative value of a DNA result would be inadmissible. DNA was understood to be in a different category from (say) facial mapping—due not only to the availability of agreed population databases on which to base RMP statistics, but also in recognition of the particular compelling nature of a DNA result—especially in the eyes of a jury. But there has been a recent trend to-wards allowing scientists to give an opinion on the level of support based purely on their scientific “experience”.11 This trend is notably at odds with the approach in the USA and Canada, where it is necessary to provide a scientifically valid estimate of the frequency with which profile matches might occur by chance.12

In his judgment in Doheny and Adams [1997] 1 Cr.App.R. 369 Phillips L.J. (as he then was) laid down general key require-ments for DNA testing, the conclusions that can be properly drawn from such testing and the manner in which those con-clusions should be presented to the jury. He stated:The cogency of DNA evidence makes it particularly important that DNA testing is rigorously conducted so as to obviate the risk of error in the laboratory, that the method of DNA analysis and the basis of subsequent statistical calculation should as far as possible be transparent to the defence and that the true import of the resultant conclusion is accurately and fairly explained to the jury.

In describing the role of the scientist in giving evidence, he added:He will properly explain to the jury the nature of the match (“the matching DNA characteristics”) between the DNA in the crime stain and the DNA in the blood sample taken from the defendant. He will properly, on the basis of empirical statistical data, give the jury the random occurrence ratio—the fre-quency with which the matching DNA characteristics are likely to be found in the population at large. Provided that he has the necessary data, and the sta-tistical expertise, it may be appropriate for him then to say how many people with the matching characteristics are likely to be found in the United King-dom—or perhaps in a more limited relevant sub-group, such as, for instance, the Caucasian, sexually active males in the Manchester area.

This will often be the limit of the experience which he can properly and usefully give. It will then be for the jury to decide, having regard to all the relevant evidence, whether they are sure that it was the defendant who left the crime stain, or whether it is possible that it was left by someone else with the same matching DNA characteristics.

In regard to the role of the judge in summing up to the case to the jury, he stated:The judge should explain to the jury the relevance of the random occur-rence ratio in arriving at their verdict and draw attention to the extrane-ous evidence which provides the context which gives that ratio its signifi-cance, and that which conflicts with the conclusion that the defendant was responsible for the crime stain. In so far as the random occurrence ratio is concerned, a direction along these lines may be appropriate, although any direction must always be tailored to the facts of the particular case:

11 This was permitted in the trial of DS, where, following the exclusion of the statistical evidence of Professor Balding, the reporting scientist was allowed to give evidence that the DNA results provided “moderate support” for the view that DS was a contributor to a mixed profile, despite an objection in principle to “subjective” evaluative opinions raised by Dan Krane, Professor of Biological Sciences at Wright State University, Ohio, USA. An appeal relating to the admissibility of a non-statistical opinion has been referred to the full Court of Appeal and is expected to be heard before the end of the year.12 As per a large amount of unequivocal case law within the United States, the first National Research Council report on forensic DNA profiling, and the recommendations of the interpretation guidelines of the Scientific Working Group on DNA Analysis Methods (SWGDAM) for the United States and Canada.

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“Members of the jury, if you accept the scientific evidence called by the Crown, this indicates that there are probably only four or five white males in the United Kingdom from whom that semen stain could have come. The defendant is one of them. If that is the position, the decision you have to reach, on all the evidence, is whether you are sure that it was the defendant who left that stain or whether it is possible that it was one of that other small group of men who share the same DNA characteristics.”

In providing the above framework, Phillips L.J. emphasised the critical importance of DNA evidence being explained to a jury in a form and manner that enables them to properly evaluate it and to reach a safe decision on its appropriate weight. This principle was reinforced by the Court of Ap-peal in Broughton [2010] EWCA Crim 549 where the Court was asked to determine whether a jury should have been directed to disregard the DNA evidence if they concluded that that they could not accept the evidence given by the Crown in relation to the interpretation of the components of the DNA profile, as in that event there was no RMP statistic. Having quoted Doheny and Bates [2006] EWCA Crim 1395 with approval, Thomas L.J. in allowing the appeal explained:Applying the approach in Doheny and Bates, the dangers inherent in evi-dence founded upon the analysis of … (very small amounts of DNA) … make it particularly important that the jury are given sufficient guidance to enable them fully and properly to evaluate the evidence in relation to the components of the DNA profile where there is a disagreement about them. In this case the judge properly directed the jury that if they did not accept … (the Crown’s evidence) …, then that would, as he put it, destroy the match probability statistics relied upon by the Crown.

However, in our judgment the judge then fell into error in directing the jury that, in those circumstances, they could reach their own conclusions on the DNA evidence. It is fair to say that the judge urged the jury to exercise cau-tion and be very careful in arriving at firm conclusions because they were not experts in statistics. However, we believe that only served to emphasise the void in which they were left. They had no guidance from the experts and no guidance from the court to enable them to conduct an evaluation of the evidence for themselves.

… It followed in our view, that if the jury did not accept her evidence on the interpretation of the components of the profile, then the jury should have been told to acquit, as there was no basis on which they could assess the match probabilities themselves. Of course, if there had been alternative statistics, then these would have been left to the jury and the jury been directed accordingly.

The admissibility of evaluative opinions in the absence of a databaseThe fact that there is no reliable statistical basis does not mean a court cannot admit an evaluative opinion. The is-sue is whether there is some other sufficiently reliable basis for its admission. The use of a scale to express an expert opinion, based solely on the judgment of the expert with-out any underlying mathematical formula, was approved in the context of facial mapping evidence in Atkins and Atkins [2010] 1 Cr.App.R. 8. Similarly the Court of Appeal held in T (above) that an evaluative opinion can be appropriate in a footwear marks case although no likelihood ratios or oth-er mathematical formula should be used in reaching that judgment.13 The Court stressed, importantly, that the word “scientific” should not be used by such an expert as, if that phrase is put before the jury, it is likely to give an impres-sion to the jury of a degree of precision and objectivity that is not present given the current state of expertise.

13 Note also para.77 where it was said that “... in DNA cases, there has been for sometime a sufficient statistical basis that match probabilities can be given. The approach in the UK has been, in the light of Doheny, to use match probabilities.”

In both these situations (shoes and facial characteristics) the Court was addressing the admissibility of evaluative evidence in circumstances where there was no satisfactory database and therefore no capacity to produce a mathemati-cal conclusion. In those circumstances the position of the respective appeal courts involved was that the jury were assisted in terms of their understanding and the extent of weight to give the evidence by receiving the evaluative as-sessment of an experienced expert. As Hughes L.J. com-mented in Atkins:... the alternative, of simply leaving the jury to make up its own mind about the similarities and dissimilarities, with no assistance at all about their sig-nificance, would be to give the jury raw material with no means of evaluat-ing it. It would be as likely to result in over-valuation of the evidence as undervaluation. It would be more, not less, likely to result in an unsafe con-clusion than providing the jury with the expert’s opinion, properly debated through cross-examination and, if not shared by another expert, countered by contrary evidence.

Both the above decisions are reconcilable in general terms with the Doheny principle of expert forensic evidence be-ing provided to a jury in a form and manner that enables them to properly evaluate it and to safely give the appropri-ate weight. In appropriate circumstances where there is an absence of any approved and accepted database, the giving of a non-scientific evaluative opinion that is capable of be-ing effectively tested and cross examined on subject mat-ters (shoe and facial similarity) at least to a general degree within the experience of the jury is permitted.

Thomas [2011] EWCA Crim 1295—a departure from principle or a case limited to its own facts?T appealed against convictions for possession of a prohibited firearm and causing GBH with intent. An altercation had occurred at a club during which a man had been shot and wounded. T and two other men were seen in a car driving away from the scene. The car was chased by police. T was arrested in the car. The other two men had escaped from the car at an earlier point. A pistol and a revolver were recovered from a garden next to an alleyway down which the two men had run on exiting the car. The evidence against T included a bloodstain found on the pistol in which all the components of his DNA were found to be present. The interpretation of the evidence was the subject of a narrow dispute between the ex-pert witnesses. The prosecution expert considered the result “provide(d) support” for the view that some of the DNA on the gun was from T; whereas the defence expert expressed the view that the extent of the evidence was that T could not be excluded as a contributor to the DNA on the gun. Addi-tionally, evidence against T included CCTV from the scene showing him to have an object tucked into his waistband: the prosecution invited the inference it was the pistol. A hat he had been wearing was used by the victim to stem his bleed-ing from the gunshot wound. Further evidence included ex-pert evidence of gunshot residue on T’s clothes which was consistent with direct exposure to the firing of the pistol.An unsuccessful application was made to exclude the DNA results and the interpretation of them, on the ground that the results were not reliable, the opinion was not scientifi-cally based and the admission of the evidence would have such an adverse effect on the fairness of the proceedings that it should not be admitted. T gave evidence. He denied possessing any firearm and of being involved in the shoot-ing. He admitted being at the scene of the incident and close

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proximity to the gunman at the time that shots were fired. He was subsequently convicted and appealed on grounds including a complaint that the judge had erred in failing to exclude the DNA evidence.It was agreed evidence that the DNA results from the blood on the pistol:

• indicated the presence of DNA from at least three individuals;• showed there was no major profile;• produced a profile in which all the components of T’s profile

were present;• that the results were unsuitable for any kind of statistical

evaluation as the stochastic effects at the high molecular weight loci introduced some doubt as to whether the promi-nent alleles were from more than one person.

The challenge to admissibility included a submission that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that it should not be admitted on the basis that the jury would have no ba-sis on which to evaluate the DNA evidence. The trial judge rejected this argument. Borrowing heavily from Atkins (above) he stated:there is no doubt that the DNA experts for the prosecution and the defence take a different view as to how the DNA results should be interpreted. The criticisms made by the defence of the opinion expressed by Miss Cornelius can be fully aired before the jury and in my judgment, there is nothing unfair about the jury being allowed to hear and decide for themselves about the different opinions expressed by the two DNA experts.

On appeal it was argued that the trial judge’s ruling was wrong as the Crown’s scientist had been unable to give any further explanation to her words “provide support”. There was no sta-tistical evaluation or indeed any alternative evaluative criteria provided to assist the jury in their assessment of the weight of the evidence. The Court (Richards L.J.) was plainly troubled:It is a troubling feature of Miss Cornelius’s (the Crown’s expert) evidence that, while feeling able to express the opinion that the results “provide sup-port” for the view that the appellant was a contributor to the DNA recovered from the pistol, she was unable to give any indication of the degree of sup-port so provided. The nearest she got was in her explanation that it was “rare” to find all 20 components of a DNA profile by chance; but even then she did not indicate how rare or what this meant for the degree of support provided by a finding that all 20 components were present.

Nonetheless the Court upheld the trial judge’s reliance on Atkins on the basis:

that an expert assessment based on experience may be admissible even in the absence of a statistical evaluation of likelihood, provided that the mat-ter is approached with suitable caution and the nature of the assessment is made crystal clear to the jury.

Commenting on the fact that during the evidence the Crown expert had agreed that her findings really did not enable her to say that T had handled the pistol, the Court reasoned:Despite all the attention given to it, the DNA evidence proved in the end to be a sideshow. This, as it seems to us, was the result of the proper ap-plication of the adversarial process to evidence properly adduced. But it also means that even if, contrary to our view, the judge was wrong to al-low Miss Cornelius’ opinion to be adduced, its admission into evidence can confidently be stated to have had no adverse effect on the safety of the appellant’s convictions.

It remains to be seen whether Thomas will become an es-tablished authority for admissibility of opinion evidence in DNA cases or whether it will have a more limited remit. There are features of the judgment that are of concern. Firstly, in circumstances in which the Court were being asked to uphold the admissibility of DNA evidence absent statistical evaluative criteria it would appear that the Court were not asked to consider Doheny and the detailed guid-ance for DNA cases of Phillips L.J. set out above. Doheny was not referred to in the judgment of the Court and ap-pears to not even have been cited. Broughton received a passing mention and was dismissed as being only relevant to the issue of whether the DNA results (as opposed to the interpretation of them) were admissible. Secondly, and pos-sibly as a consequence of this, the Court did not really ad-dress the enhanced danger of inappropriate weight being given by a jury to the type of scientific evidence which they may have a general tendency to consider is particularly cogent i.e. the danger of “over-evaluation” recognised and warned against by Thomas L.J. in Broughton.The solution we suggest is for a return to principle in rela-tion to DNA mixtures, and for a statistical analysis to be a prerequisite for admissibility. The means for producing such statistics are available, and are being constantly re-fined, but may yet need more time to be accepted as fully validated. Jumping the gun, and accepting opinion evi-dence, may come to be seen as a poor substitute for what has hitherto been regarded as the gold standard.

In the newsThe White Paper Swift and Sure Justice: The Government’s Plans for Reform of the Criminal Justice System, published in July, proposes to:

• empower a lay magistrate to deal with certain uncontested, low-level cases on his or her own (see paras 119 to 123);

• introduce a monetary threshold for the either way offences of theft and handling stolen goods below which magistrates would not have the power to commit the case for trial at the Crown Court, but the defendant’s right to elect for trial by jury would remain unchanged (see paras 124 to 131); and

• consider reform of the legislation relating to the use of video links in criminal proceedings (see paras 151 to 153).

■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■

The Justice Select Committee of the House of Commons has called for written evidence for its new inquiry into Women Offenders. The inquiry comes five years after the Corston Report made its recommendations designed to drive improvement in the women’s criminal justice agenda (see www.justice.gov.uk/publications/docs/corston-re-port-march-2007.pdf/). The Justice Committee will review progress and examine current strategy and practice with respect to women offenders and those at risk of offending. Specifically, they seek to explore:

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• The nature and effectiveness of the Ministry of Justice’s strategy for women offenders and those at risk of offending.

• The nature and effectiveness of Ministry of Justice govern-ance structures for women’s offending.

• The extent to which work to address the multiple and com-plex needs of women offenders is integrated across Govern-ment.

• The extent to which the gender equality duty has become a lever for mainstream service commissioners–outside of the criminal justice system–to provide services which tackle the underlying causes of female offending.

• The suitability of the women’s custodial estate and prison regimes.

• The volume, range, quality, and sustainability of community provision for female offenders, including approved prem-ises.

• The availability of appropriate provision for different groups of women offenders, including, under 18s, women with chil-dren, foreign nationals and black, asian and minority ethnic women, and those with mental health problems.

The deadline for submissions is Monday September 10, 2012: see www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news/new-inquiry-wo/■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■

The Department of Transport is consulting on Motoring Fixed Penalties (closing date: September 5, 2012). The priority is “targeted enforcement”. The problem identified is that the

current process of charging motorists for a careless driving offence is overly bureaucratic, involving a heavy burden of pa-perwork, which we are told “deter the police from charging motorists with lower level instances of careless driving in the first place”. The proposed solution is to make careless driving a fixed penalty notice (FPN) offence and to increase the pen-alty levels for some motoring FPN offences. They also want to encourage giving offenders the choice of taking a remedial training course as an alternative to accepting a fixed penalty notice (which they say operates at no cost to the public purse, as the offender is required to pay for the course).(There are currently two types of FPNs: non-endorsable of-fences, which do not result in penalty points on a licence and are usually set at £30; and endorsable offences which result in penalty points on the licence and are usually set at £60. For the most serious FPN offences, such as driving without insurance, the financial penalty is up to £200. Many fixed penalty offences attract 3 penalty points and if a mo-torist accumulates 12 points within 3 years (6 points for re-cently qualified drivers) they are likely to face disqualifica-tion from driving. Then there are graduated fixed penalties which were introduced in 2009 and mainly cover commer-cial vehicle drivers’ hours and overloading offences, both endorsable and non-endorsable. The penalties are gradu-ated to reflect the length of time spent driving or working over the legal limit, being below the prescribed period of rest and levels of overloading in vehicles. They range from £30 to £200. The Government seeks views about possible increases to these penalties, if the increases to the other FPNs are introduced.

Book reviewAn obvious contender for the criminal lawyers’ holiday reading is Children and Cross-Examination: Time to Change the Rules? (edited by John Spencer and Michael Lamb), Hart, 2012. De-spite the question mark in the title, most of the contributors to the book have no doubts: the book clearly argues the case for reform, particularly for the implementation of what has be-come known as the “full Pigot”. In 1989, the Pigot Committee proposed that the whole of a young child’s evidence, includ-ing cross-examination, should be obtained out of court and in advance of trial. Section 28 of the Youth Justice and Criminal Evidence Act 1999 was designed to give effect to this, but has not been brought into force. The proposal has, however, been implemented in Western Australia, and similar schemes oper-ate in a number of European jurisdictions.The book’s exploration of the problem through a wide com-parative lens is instructive. Particularly original are Emily Henderson’s overview chapter on alternative routes to best evidence (with discussion of what she calls “an extreme form of intermediary” in Israel and “intermediaries as mega-phones” in the USA), Verena Murschetz’s chapter on Austria and the chapter on Norway by Trond Mykleburst. He iden-tifies in Norway, “like adversarial systems, a strong prefer-ence for oral evidence and examination. There is no tradition of aggressive, adversarial cross-examination in Norway and the judge-led direct examinations by the prosecution and de-fence are relatively informal in terms of evidence rules and procedure” (at p.153). Interestingly, he suggests that repeat interviews can be beneficial—despite the possibility of “sug-

gestive contamination”. Lawyers and psychologists have much to learn from each other—and a call for better training of all professional participants in criminal justice processes is a frequent refrain throughout this book.For John Spencer, the cross-examination of the child com-plainant in Barker [2010] EWCA Crim 4 was, quite simply, shocking and abusive, causing needless stress and harm. And “traditional adversarial cross-examination is not a re-liable method of either testing the truthfulness of what a child has previously said, or of obtaining from them fur-ther information that is accurate” (p.178). But once we start challenging the way children are cross-examined, why stop there? Many adults are vulnerable witnesses too. Spencer points out that an honest adult’s answer to the question “Do you ever tell lies” should be “No more fre-quently than you do” (p.185). How many honest witnesses, adult or child, would have the confidence to be this sophis-ticated in the witness box? So whether or not you think cross-examination should happen before trial, there are certainly ways in which the process could be improved, or in John Spencer’s words, “tamed”. Let’s not stop at cross-examination: reforming examination in chief, and indeed the way statements are taken generally, is long overdue. Statements to the police should be recorded orally/digi-tally in the witness’ own words, not translated into written statements by busy police officers, thereby immediately opening doors for cross-examinations which can unfairly undermine the credibility of the witness.

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Issue 8, September 10, 2012 Archbold - Archbold e-update 8-2012 v 3.pdf · Duress—whether threats of false imprisonment sufficient NGUYEN AND OTHERS [2012] EWCA Crim 1717; July