England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London WC2
		26 January 1994

LORD JUSTICE EVANS: The appellant was charged on six counts of indecent assault, rape and incest at Wolverhampton Crown Court in October 1992. During the prosecution case, the learned Judge was asked to permit representatives of the Crown Prosecution Service to interview a scientist who had carried out DNA tests at the request of the defence solicitors on a blood sample provided by the defendant to his G.P. for that purpose. Leave was granted, and subsequently the learned Judge ruled that the evidence of the scientist, who had been subpoenaed as a witness for the prosecution, was admissible against the defendant. The scientist, Dr Rysiecki, duly gave evidence in relation to one count, count 5, a charge of incest. The appellant was convicted on this and on four other counts, and he was sentenced to three years' imprisonment. He now appeals against his conviction on all counts.

At the conclusion of the appeal hearing on December 20th. 1993, we stated that in our view the submission of Mr A. Barker Q. C. for the appellant, that the evidence was not properly admitted, was correct, but that we were satisfied that no miscarriage of justice had occurred and that the proviso under section 2(1) of the Criminal Appeal Act 1968 should be applied. We therefore dismissed the appeal, and we now give our reasons for doing so.

The question whether the prosecution was entitled to call as an expert witness a duly qualified person who had previously been consulted by the defendant's solicitors, and who had advised them accordingly, is one of general interest and importance, and we shall consider it first as a matter of principle. It was common ground that the two-stage approach adopted by the prosecution in the present case - asking first for permission to interview the expert, and then for leave to call her as a witness - was strictly unnecessary, though fully understandable as a matter of caution. The sole question is whether her evidence was properly admitted on behalf of the prosecution.

There is no property in a witness: Harmony Shipping Co. S.A. v. Saudi Europe Line Ltd. [1979] 1 W.L.R. 1380, applied in a criminal case in R. v. King (D.A.) (1983) 77 Cr. App. Rep. 1. The prosecution therefore cannot be prevented from approaching or calling a witness, merely because he {or she) has previously been consulted by the defence.

The evidence which any such witness may give is limited, however, by the normal rules of legal professional privilege. These may protect communications between the witness and the defence solicitors, assuming that they were made in contemplation of legal proceedings, etc., but they do not prevent the expert from giving his or her opinion on the matters in issue. In Harmony Shipping. Lord Denning M.R. explained the position as follows :-

"Many of the communications between the solicitor and the expert witness will be privileged. They are protected by legal professional privilege. They cannot be communicated to the court except with the consent of the party concerned. That means a great deal of the communications between the expert witness and the lawyer cannot be given in evidence to the court. If questions were asked about it, then it would be the duty of the judge to protect the witness {and he would) by disallowing any questions which infringed the rule about legal professional privilege or the rule protecting information given in confidence - unless, of course, it was one of those rare cases which come before the courts from time to time where in spite of privilege or confidence the court does order a witness to give further evidence.

Subject to that qualification, it seems to me that an expert witness falls into the same position as a witness of fact. The court is entitled, in order to ascertain the truth, to have the actual facts which he has observed adduced before it and to have his independent opinion on those facts." [1979] 1 W.L.R. AT 1385D.

Archbold (1993 ed.) para. 12-18 is to the same effect:-

"The rule in civil proceedings that legal privilege attaches to confidential communications between solicitors and expert witnesses but not to the expert's opinion or the chattels or documents upon which the expert has based his opinion applies also in criminal proceedings. Accordingly, no such privilege attaches to a document in the possession of a handwriting expert which emanated from a defendant and was sent by him to his solicitors for examination by the expert: [citing Harmony Shipping and King]".

It is not suggested that in the present case Dr Rysiecki gave any evidence regarding communications between her and the defence solicitors. The fact that such communications had taken place, as distinct from the communications themselves, was not privileged in any event. The dispute centres on the fact that her evidence was based on a blood sample which the defendant had provided so that her advice could be obtained. The sample was taken by his G.P. and was given to his solicitors, in conditions of confidence which may be said generally to have been privileged.

Mr Barker's submission to the learned Judge was founded on the proposition that the defendant cannot be required to incriminate himself* This is reflected in the rule that a witness cannot be required to answer questions which might incriminate him of any offence (modified when the defendant himself gives evidence and can be cross-examined, by virtue of the Criminal Evidence Act 1998), and in the defendant's present right of silence at all stages after his arrest.

In our judgment, the issue has to be decided by the application of the rules of legal professional privilege. These may reflect some wider or more general principle, as Mr Barker submits, but the question, it seems to us, is whether, and if so to what extent, Dr Rysiecki's evidence should have been excluded on grounds of legal privilege.

Mr Hotten for the prosecution, to whom we are greatly indebted for his submissions, told us that the blood sample which had been provided by the defence solicitors to the expert was not produced in court and was not exhibited in her witness statement. It is possible, even likely, that the sample had ceased to exist as such, by reason of the tests carried out upon it. Therefore, he submitted, the sample formed no part of her evidence, and she was entitled to give her opinion in accordance with the rule stated in Harmony Shipping. He relied in particular upon the passing reference to legal privilege in W v. Edgell [1990] 1 All ER 835 at 846a. There, the expert witness instructed by the plaintiff's solicitors had examined the plaintiff himself, and no question of an "item" or sample arose. The plaintiff claimed public interest immunity for her report, but he was unsuccessful.

This submission was initially persuasive, but in our judgment it must be rejected. It is not a case where the witness' opinion was based on examination and testing of a sample obtained in non-privileged circumstances, or of the defendant himself. If she had been asked to test a sample lawfully obtained previously by the police when the defendant was in custody - as to which, we shall comment further below - then her evidence could have been given with no question of legal privilege arising. But as it was, the opinion evidence she gave was based on the sample she had received from the defence solicitors. Her opinion was as to the DNA properties of the defendant's blood, but it was based on that sample and she could not have given her evidence without it. The fact that it was not exhibited, and may no longer exist, does not alter this fact.

We turn, therefore, to consider the status of the sample provided by the defendant to his solicitors and then made available to Dr Rysiecki for the purpose of obtaining her advice in connection with the pending charges against him. The sample could not have been obtained from the defendant without his consent, and the consent was given for that limited purpose. Could the prosecution take advantage of the fact that they were able to have access to the sample, or at least to Dr Rysiecki's opinion based on the sample, notwithstanding that the defendant had not consented to them doing so? Just as there is no property in a witness, so also as a general proposition evidence is not excluded by reason of the circumstances in which it has become available to the party wishing to call it. The question, therefore, remains one of privilege, and legal professional privilege in particular.

The obtaining of intimate samples from a person in police detention is governed by section 62 of the Police and Criminal Evidence Act 1984. The suspect must consent in writing and the statutory procedure must be followed. The statute has no application when the defendant is not in custody, and so no question arises of the prosecution being entitled under the statute to produce in evidence the blood sample which was obtained from the defendant for his solicitors, as in the present case. If the sample, or evidence derived from it, was tendered by the prosecution as a non-Code sample then its admission would be governed by the fairness provisions of section 78 of PACE or by the court's general discretion to exclude evidence which although admissible in law is unduly prejudicial to the defendant. But none of these questions arise if the sample, or evidence derived from it, is privileged. There is no discretion to admit privileged material without the defendant's consent, except possibly in exceptional circumstances which do not arise here.

Section 9 of PACE protects "items subject to legal privilege" from police powers of search and seizure, and these are defined in section 10

"10.(1) Subject to subsection (2) below, in this Act "items subject to legal privilege" means:-

(a) [communications between a professional legal adviser and his client];

(b) [communications made in contemplation of, etc. legal proceedings]; and

(c) items enclosed with or referred to in such communications and made -

(i) in connection with the giving of legal advice; or

(ii) in connection with or in contemplation of legal proceedings and for the purposes of such proceedings,

when they are in the possession of a person who is entitled to possession of them.

(2) Items held with the intention of furthering a criminal purpose are not items subject to legal privilege."

It is usually documents and oral communications which are the subject of legal privilege, and in the context of civil cases the privilege is that of the party, who may object to questions asked of himself or of his witnesses: see Phipson on Evidence (14th ed.) para. 20-02/03 p.494. Section 10 of PACE, however, recognises that "items" may be the subject of legal privilege in certain circumstances. Whilst it is true that section 10 is concerned to provide a definition of "subject to legal privilege" for the purposes inter alia of limiting the right to search and have access to material under section 9 of the Act, which could explain why the definition includes "items" as well as communications, nevertheless in our judgment the statutory definition applies when the issue is whether the defendant can object to the object in question being produced in evidence, or to oral evidence of opinion based upon it.

The object in question in the present case was a sample of the defendant's blood provided by him to his G.P. at the request of his solicitors and for the purposes of his defence in these criminal proceedings. It was given in circumstances of confidence. That factor is a pre-condition of privilege, although it is not enough to create privilege on its own. We hold that the sample so obtained was an "item" which was subject to legal privilege in these proceedings, provided that it falls within the express wording of section 10.

Mr Hotten submitted that section 10 is limited to items which are "made" and that a blood sample cannot be said to have been "made". It is even more difficult, he submits, to say that other kinds of samples, such as nail clippings or individual hairs taken as samples, in common parlance are "made". In our judgment, however, the word was used in a general sense, certainly wide enough to include "brought into existence", and a sample of blood obtained and held in a particular container does constitute an "item ... made" for the purposes of legal proceedings etc. If his submission was correct, it is difficult to identify any kind of object which would be subject to legal privilege under s. 10(1) (c), except perhaps a model, made for the purpose of obtaining expert advice. (Documents are communications within s.10(1)(a) and (b).) The significance of "made", meaning "brought into existence", in our judgment, is that the privilege does not extend to objects which did not come into existence for the purpose of obtaining legal advice, etc. (cf. The Ventouris Mountain [1991] 1 W.L.R. 607).

Mr Hotten also submitted that legal privilege was excluded by s. 10 (2), on the ground that the sample was "held with the intention of furthering a criminal purpose", the criminal purpose in question being the (assumed) guilt of the defendant. Rightly and understandably, he did not press this submission and we need say no more about it.

For these reasons, therefore, we hold that the blood sample was an item "subject to legal privilege" under section 10(1)(c) of PACE; that the appellant was entitled to object to its production or to opinion evidence based upon it, and that this ground of appeal is made out. We come therefore, to the operation of the proviso under section 2 of the Criminal Appeal Act, 1968.

The Proviso

The evidence of Dr Rysiecki which in our opinion was wrongly admitted was relevant only to Count 5 of the six-count indictment. That was a charge of incest with the appellant's daughter, then aged 17, as a result of which a child was born. Counts 1 and 2 were charges of indecent assault involving the same daughter when she was under the age of 13 years, and Counts 4 and 6 were further charges of incest at dates when the daughter was aged 16 and 18/19, respectively. There were guilty verdicts on each of these five counts.

We can assume, in favour of the appellant, that if there was a miscarriage of justice in regard to Count 5, by reason of the wrongful admission of privileged evidence, then not only the verdict on that count but also the other guilty verdicts should be set aside.

On Count 5, however, there was overwhelming evidence of the appellant's guilt, quite apart from whatever weight the jury may have placed on Dr Rysiecki's expert evidence. Witnesses included the daughter herself and other members of the family who lived in the same household as the appellant and the daughter at the relevant times. They were concerned, not only with the question whether the appellant had intercourse with his daughter at the time when she became pregnant, but also with the defence suggestion, which the jury clearly rejected, that a named individual, who was the daughter's boyfriend for a short time, was the person responsible. One of the family witnesses gave evidence of an admission or possible admission by the appellant that he was responsible. Moreover, the prosecution called an expert witness, Mr Webster, who gave opinion evidence based on DNA samples and whose evidence, understandably, having regard to the advice which, it must be assumed, the defence had received from Dr Rysiecki, was challenged but not contradicted.

The learned judge's summing-up was a model of its kind, and apart from the wrongful admission of privileged evidence, as we have held, the proceedings cannot be criticised in any way.

Mr Barker submits that Dr Rysiecki's evidence must have been accepted by the jury, at the very least, as having strengthened Mr Webster's evidence, and that in consequence it would be wrong to apply the proviso on the ground that no miscarriage of justice actually occurred. Mr Hotten submits that her evidence was no more than the "icing on the cake" and that there was a powerful case against the appellant, even without it.

This is in many ways a tragic case, and we do not feel that it would be useful or desirable to consider the evidence in greater detail. We are entirely satisfied that no miscarriage of justice has occurred, either in reference to Count 5 or to the five counts on which the appellant was convicted, generally, and therefore we dismiss the appeal.

Mr Richards, there some talk on the last occasion of further matters being raised today, but I had a message that that is not to be pursued; is that right?

MR RICHARDS: That is right, my Lord.

LORD JUSTICE EVANS: Was there any formal appeal against sentence? I think not.

MR RICHARDS: I have no instructions to that effect, my Lord.

LORD JUST EVANS: Therefore we can take it that if there was any suggestion of appeal against sentence, that has now been abandoned.

MR RICHARDS: Yes.

LORD JUSTICE EVANS: Thank you. Is there anything else we should deal with?

MR RICHARDS: My Lord, no.

LORD JUSTICE EVANS: Thank you both very much for attending.

I should have said that Mr Justice Rougier is unable to be present today, being in Birmingham, but he has seen and approved the judgment which I have just read.