Clause 65 - New and compelling evidence
Criminal Justice Bill
10:15 am
Mr Dominic Grieve (Beaconsfield, Conservative)
I am grateful for the hon. Gentleman's opening remarks. Undoubtedly, one of the clause's key issues is whether we should seek to limit to certain categories the new evidence that can be adduced.
I wish to provide some answers to the questions that the hon. Gentleman raised. I shall see whether the Minister agrees with them, because one feature of the
provision is that there is a belief in the mind of the public that scientific advances have led to a situation in which it is possible years after the event to come up with evidence that, once established, completely satisfies everyone that the person has committed the offence. By that I mean scientific evidence and, in particular, DNA evidence.
I shall seek to illustrate to the Committee that that belief is far from being a reality. DNA evidence, although it may be instrumental in securing a conviction, does not come up to that standard. It may in future, but it does not at present. However, before I deal with that, because that comes under scientific evidence, the Committee will see that I have lent my name to the amendments for scientific evidence alone to be admitted. Indeed, amendment No. 337 limits scientific evidence to evidence derived from DNA analysis. I shall come to that at the end because, on reflection, that is to go a step too far, for reasons that I shall explain.
To leave scientific evidence to one side, should we be limiting and excluding other evidence, which would effectively be the oral evidence and recollection of new witnesses? There is no doubt that, as the hon. Member for Southwark, North and Bermondsey said, the longer the elapse since the first trial, the more difficult it is to evaluate oral recollection.
First, it becomes extremely difficult to test that evidence by reference to other people or surrounding circumstances. Were I to tell the Committee that I had jumped up and down on the desk in front of me five minutes ago, it would not be difficult for hon. Members to conclude that I was not telling the truth. However, were I to tell the Committee that I had done the same thing on a visit to the Houses of Parliament 25 years ago, it would be extremely difficult to establish whether that comment was true or false.
Secondly, the longer the time that elapses, the more the recollection of an individual who is genuinely trying to help the court becomes a risky business to accept. There is nothing more misleading than the truthful witness who gives false or mistaken evidence—their truthfulness and integrity shine through because of what they say and how they speak, but it does not mean that they are right. For instance, I remember witnessing a road accident at the age of 18. Parts of it are engraved on my memory, but it would be a risky business to rely on that recollection today for details of what happened rather than the giving of evidence only three months later. Inevitably, because of the way in which it has located itself in my mind and remains there, it is likely to be affected by the passage of time, and important elements may have slipped out. Indeed, it is even possible, as one realises when one starts recollecting things from one's childhood, that others may disagree with one's recollection of certain events; one may have imagined that something had happened, yet genuinely believe that that was part of the reality.
We do not know whether retrials will be taking place one year or even two or three years after the previous trial, but the current state of scientific evidence suggests that the majority of the trials with which we are concerned are likely to concern episodes
that took place some time ago. I therefore have serious reservations about admitting new categories of evidence that, by their nature, are not capable of being analysed and tested objectively, as scientific evidence can be. The Committee must consider whether we should confine the evidence to scientific categories. I strongly suspect that few retrials will not depend on scientific categories.
My anxiety is that, having started with scientific evidence, prosecutors may be tempted to carry out trawls to see whether, many years afterwards, they can beef up a case with little titbits of oral evidence that might not previously have been available or that someone might have put forward. That could turn out to be a dangerous process. Of course, that may be precisely the sort of area that the Court of Appeal should deal with—although it is interesting to note that the Court of Appeal can choose what should be included or excluded at the subsequent trial. That is another issue on which I should be grateful to hear from the Minister.
Once the Court of Appeal has decided on a retrial based, for instance, on DNA evidence, is that the only extra bit of evidence that can be admitted? I am not by any means persuaded. We need some clarification. Having decided to admit extra DNA evidence, can the Court of Appeal say, ''There is a desire to admit the evidence of Mr. X, but we will not allow it''? That is something that the Committee needs to consider.
I now turn to the issue of scientific evidence. As is apparent from a brief study of the issue, DNA is by no means a foolproof method of carrying out identifications years after the event. The first reason was advanced very persuasively by experts who had been working for the Government, and who had advised the Forensic Science Service. That simple point that appears in the service's booklet, which states:
''The increasing sensitivity of DNA systems mean that individuals must be constantly aware of contamination issues. Items may be contaminated by handling without gloves or adequate precautions and from saliva transfer due to talking, coughing etc. over an unprotected item. Care must also be taken to ensure items do not cross contaminate by coming into contact with one another.''
In his opening remarks, the hon. Member for Southwark, North and Bermondsey mentioned the Hanratty case, in which the Court of Appeal decided not to overturn the conviction. However, it was apparent that although the scientific evidence appeared to suggest that the DNA on the key items connected with the murder was Hanratty's, the forensic scientists had a problem—as they maintained throughout the case, and as was explained to me in detail by a forensic scientist who was involved. The problem was that although the handling of the exhibits in the early 1960s was compatible with the standards to be expected at that time, the risk of cross-contamination was a live issue, which could not be excluded.
The fact that modern scientific handling methods were not used originally, because those concerned were not even looking for DNA, raised a real question in the mind of the scientist who spoke to me. He did not think that the Court of Appeal's refusal to overturn
the conviction was wrong, because there was other compelling evidence, but from the point of view of a scientist considering the matter in the abstract, he said that he could not possibly have said that he was satisfied as a result of the tests that Hanratty must have committed the crime. The handling issues, which it is impossible to resolve after 30 or 40 years—partly because of the lack of oral evidence about what was done with the samples—mean that a question will always remain. There are limits.
Cases of the type that may well arise to be dealt with under the clause will in many cases, I believe, involve the handling of material long enough ago for modern handling systems not to have been in use. Also, we cannot get away from the fact that if there is a challenge to the apparent DNA evidence on the basis that there might have been contamination, the passage of time will make it extremely difficult to deal with the matter in a way that is fair to the defendant. I do not believe that DNA evidence will prove the great crime-solver. I suspect that if the Court of Appeal is doing its job properly a number of cases may go before it with claims that DNA provides persuasive evidence, but that the Court of Appeal may feel constrained to say that a safe trial will not be possible.
The hon. Member for Southwark, North and Bermondsey raised the point that DNA evidence is a tool relating to probabilities, but historically it has been astonishingly open to misuse—so much so that the Court of Appeal issued a defining judgment in the case of Doheny and Adams in 1996. That is the most cautionary reading, which I recommend to the Committee as it is extremely comprehensive, about the abuse of DNA evidence by the prosecutor in presenting his case to the jury. More important, I think, there is a general public abuse of DNA evidence, relating to the understanding of what it can or cannot show.
The case established clearly that it is necessary to be very careful not to mix up the probability of an occurrence in the population with the probability that the person in question committed the offence. That is precisely what the prosecutor had begun to muddle. What emerges, as the hon. Gentleman rightly said, is that in truth a person's DNA is not unique, as far as the analysis that is currently possible goes, although in future it may become so. Perhaps it will become possible to refine it further. Therefore, it is likely that in most cases other people in the country—not necessarily identical twins—will have identical DNA to that of the person who is suspected of committing the offence.
The Court of Appeal laid down very strict guidelines, which are worth reading out.
''The scientist should adduce the evidence of the DNA comparisons between the crime stain and the defendant's sample together with his calculations of the random occurrence ratio.''
That is the occurrence within the population. In this country 25 or 26 people might have that occurrence. In addition:
''The Forensic Science Service should make available to a defence expert, if requested, the databases upon which the calculations have been based.''
I am picking out key quotes.
''The expert will . . . give the jury the random occurrence ratio—''
and nothing else.
''The expert should not be asked his opinion on the likelihood that it was the defendant who left the crime stain,''
nor should the prosecutor make suggestions to the jury that that can be concluded.
The issue is complex. The prosecutor argued that as only one person in a million has a DNA profile that matches that of the crime stain and the defendant has a DNA profile that matches the crime stain, ergo there is a million to one probability that the defendant left the crime stain and is guilty of the crime. That is a fallacy. The truth is that DNA can serve its purpose only by providing an indication that might help to exclude someone from the category of person who committed the offence. Otherwise, taken together with other evidence, it might be sufficient to satisfy a jury that a person is linked to the offence and has committed it. In many circumstances in which people have been occupying the same premises, particularly in cases such as rape, a defendant's DNA might be present quite innocently at the crime scene without contamination having taken place.
I am sorry to have taken so much time, but it is important for the Committee to understand that this is not a foolproof method by which, 20 years after the event, scientific knowledge suddenly enables one to turn round and say that an individual is guilty of an offence. It does no such thing.
Although I put my name to the amendment that requires scientific evidence to be limited to DNA, I did so merely for the purposes of probing. My view is that that is wrong. There are many other standards and categories of scientific evidence that might be of use to a court in reaching a reasoned decision, and those could develop further. Corneal evidence can be helpful in terms of identification, and I am told that ear prints might prove to be of interest. Voice recognition could develop to the point at which it is sufficient to give a clear indication of a person's identity.
We come to the old subject of fingerprints. They provide another great cautionary tale, which the Committee might bear in mind. When I was first at the Bar, one had only to find 16 matching features in a pair of fingerprints and it was considered to have been established with certainty that the fingerprint belonged to the individual. Now we are aware that that is not the case; it is much more complicated. The evidence can only give a degree of probability and point out how many matching features are present.
I am grateful to my hon. Friend the Member for Woking (Mr. Malins), who cannot, unfortunately, be here this morning. He attended the recent meeting of the Judicial Studies Board, which was shown an exercise in which some 40 scientists, all recognised as experts in their field, were given two fingerprint samples to compare. One expert saw 14 points of comparison and another 54, while the majority saw 20 to 25 such points. Public perception is that fingerprint
evidence is in some way foolproof. Although it has, historically, been viewed as the determining issue, it is nothing of the kind; it is merely a tool to aid understanding. I hope not to go over old ground, but the Minister will remember that earlier we debated the question of compelling defendants to hand over the names of the experts that they consulted, as a weapon, I think, with which they can be browbeaten when they go to court. I hope that my points can be a cautionary illustration of why nothing of the kind should occur, and that the Minister may even at this stage reconsider the matter.