Crown Court for Northern Ireland Decisions

1. Mortar Attack on G30 Army Tower at Crossmaglen on 24 March 1998

2. Mortar Attack on Forkhill Army/RUC Base on 24 March 1998

[5] On the same day as Incident 1 this second mortar attack was launched. One mortar exploded within the compound but fortunately did not strike any person or building. The follow up search revealed two mortar base plates each with two tubes. Each pair had its own TPU, one of which was a Mark 19 and the other of different construction.

3. Hoax Device on Railway Line at Red Bridge, Newry on 3 April 1998

4. Car Bomb placed at Market Square, Lisburn on 30 April 1998

5. Mortar Attack on Belleek RUC Station on 9 May 1998

6. Car Bomb placed near Armagh RUC Station on 16 May 1998

7. Placing of a bomb on the railway line at Finaghy on 24 May 1998

8. Leaving a trailer bomb on a minor road near Blackwatertown Road on or about 9 July 1998

9. Car Bomb placed at Newry Courthouse on 13 July 1998

10. Mortar Attack on Corry Square RUC Station Newry on 21 July 1998

11. Car Bomb at Newry Street, Banbridge on 1 August 1998

12. Car Bomb at Market Street, Omagh on 15 August 1998.

13. Discovery of abandoned Mortar Bomb at Altmore Forest on 12 April 2001

The Nature of the Prosecution Case against the accused

1. An examination of the manufacture of the Mark 19 TPUs that are known to have been used in eleven of the first twelve incidents and others found in other incidents tends to show that those used in the twelve had been made by the same person because of consistent features of their design and manufacture.

2. Fibres were recovered from melted glue used to secure components within the housing of several of the TPUs. These were consistent with having come from knitted gloves suggesting that similar gloves were worn by whoever assembled the TPUs. At the accused's house there was a mobile home. When it was searched in 2003 some fibre samples were recovered. Four fibres found on the Lisburn device are said to be indistinguishable from five fibres recovered from the mobile home. No knitted gloves were recovered. It is said that these fibres provide weak support for the proposition that the Lisburn TPU and items from that mobile home have been in contact with the same garment or fabric although it is conceded that this finding is not of itself strong.

3. DNA examination of a type known as "Low Copy Number" was undertaken subsequent to the events of 1998/9 upon quite a number of the items recovered although at the time that they were being recovered the possibility of their being examined for DNA was not considered by those effecting their recovery, storage and transmission. It is said that the result of DNA examination is to show that the accused was in contact with parts of the devices from Lisburn, Armagh, Blackwatertown Road and Altmore Forest.

The Prosecution submit that the combination of those strands produces the result that the accused can be shown to be involved in the construction of the twelve devices and thereby an essential part of the conspiracy to cause each of the remaining incidents charged. I shall examine each of the strands in turn.

Prosecution strand 1 - Alleged Common authorship of the Mark 19 TPUs

1. The identification of the components used.

2. How and where the major components were mounted and their proximity to each other.

3. The sequence of components in the electrical circuit.

4. The physical characteristics and configuration of the lengths of wiring used in the circuit.

5. Whether any of the soldered connections displayed "characteristic workmanship".

6. Whether any physical matches existed between materials in or attached to one unit and those in or attached to another such as tape ends, sections of plastic conduit or terminal blocks.

Conclusions on Common Authorship

Prosecution strand 2 – The finding of Fibres on TPUs and at the Mobile Home

Conclusions on the fibre evidence

Prosecution strand 3 - the DNA evidence

Examples of problems in recovery, packing, storage and transmission of items by the Army, Police and SOCO

Following the making safe of the Lisburn device the Army Technical Officer ("ATO") moved the remnants of the TPU from the driver's footwell onto the driver's seat where they were photographed. He then took possession of the remains of the TPU and later handed them over. He could not explain how or for what purpose someone might have applied adhesive tape to the device although its absence from photographs taken at the scene showed that this had clearly been put on it by someone at some later stage. It might have been him but he could not think why. He thought some of the tape might have been put on by the Scenes of Crime Officer ("SOCO") but the latter denied that. The SOCO claimed that he had bagged the item at the scene and put it into his car and taken it to Lisburn Police Station where he handed it to a colleague. However an examination of the Lisburn station records does not confirm its receipt at the station at that time. The ATO had taken parts of the device to his base and the second SOCO later went there to collect them. He had bagged them because "items were never bagged by the ATO when you went for them". He said the Army wouldn't package them as "that was our job". They were lying next to each other. He had submitted the items for fingerprinting but had not considered submitting them for DNA examination as so far as he was aware none of the items was suitable for DNA. He said "In 1998 we didn't come across DNA" but he agreed with Mr Pownell QC that there would be a DNA problem arising from how the items were handled by the ATO. He said that in the last two to three years they now had to be very mindful of DNA contamination and now wear a full suit with headgear, mask, two pairs of gloves and a pair of overshoes. The only contamination they were aware of in 1998 was of fibres. The mystery of the added tape and the circumstances in which it came to be there were never explained in the course of the trial.

The ATO who disabled this device gave evidence that he was "fairly sure" of having removed the detonator from the detonator cord. He had twisted the detonator wires together to reduce the electrical risk as he would not hand them over untwisted. He said he "certainly would have noticed" the absence of wires in the outer sheaths. A member of the Army Weapons Intelligence Section ("WIS") gave evidence that he entered the scene with the SOCO after it had been made safe. He wore no special clothing and no gloves but he did not touch exhibits although he leant over them to photograph them. Until he left in 2000 there were no changes in his clothing. The SOCO gave evidence of bagging and labelling the detonator "JRJ 8" but he could not explain who had written on the bag or made alterations to the label. When asked to open the bag a piece of green plastic sheath without a wire core was found lying loose in it together with about five fragments of tape adhering to each other. He could not say that those loose items were part of the exhibit when he bagged it. Concerning DNA he said that it did not occur to him as he couldn't see any blood. "No-one knew how DNA was going".

In this case there were no proper records relating to the custody of the items seized and bagged by the SOCO who was the same individual who had attended at Armagh. The items were not recorded in any station book such as the Special Property Register nor in the Major Incident Register. (It was a common feature of the evidence in this case related to the custody and preservation of property that recording was not carried out and it was often impossible to say by reference to any station record what item was where nor were records kept of who entered the property stores, when or for what purpose.)

[50] Altmore Forest

In this case a most disturbing situation was exposed by the Defence. It came to light that a Ms Cooper, then a SOCO but now apparently a police officer, gave evidence that she was wearing protective clothing at this scene when in fact she was wearing nothing of the kind, as photographs taken at the scene fortunately revealed. I add that she gave similarly incorrect evidence in relation to her apparel at Forkhill, again happily exposed by the availability of photographs. A Detective Chief Inspector Marshall also gave evidence about his wearing protective clothing at Altmore which photographs proved to be incorrect. These two witnesses were responsible for dealing with exhibits from Altmore including the TPU and for transporting it to the Forensic Laboratory in Belfast and later to the laboratory in Birmingham for DNA examination. The explanation as to how their untruths came to be told and the deliberate attempts, as I am satisfied they were, to conceal what the Defence not unfairly characterised as the "beefing up" of the initial statement of Ms Cooper are deeply disquieting. I am left in the position that I do not know what if anything I can believe of the evidence of these two and I am satisfied that, had photographs not been available to gainsay their lies, they would have persisted in seeking to and very possibly have succeeded in convincing me that, being at that time (somewhat unusually if the evidence of others is correct) alive to the possibility of DNA contamination, they were wearing suitable protective clothing to obviate such a risk. Such was my disquiet at their evidence and that of others connected with this matter that upon its completion I had transcripts of the evidence on this issue sent to the Police Ombudsman. The effect of this, as I find deliberate and calculated deception in which others concerned in the investigation and preparation of this case for trial beyond these two witnesses may also have played a part, is to make it impossible for me to accept any of the evidence of either witness since I have no means of knowing whether they may have told lies about other aspects of the case that were not capable of being exposed as such.

Examples of Problems with Police Storage arrangements and at Northern Ireland Forensic Science

"Subject: Omagh

"I was looking at the minutes of the last Forensic Management Team meeting.

I don't know where profiles/partials are coming up in the Omagh case but I know that I was shown the bit of TPU box out in Explosives. I don't remember touching anything but who knows. Lots of other people were shown these things although I guess most would not have had actual contact. Were there any profiles found on pieces recovered from the debris? – If so I presume the profiles of the recovery team have all been eliminated.

Late in the day and probably of no value but I felt I have (sic) better pass these thoughts to you."

This is a disturbing document, contemplating as it does at least the real possibility that an item that was subject to LCN DNA examination had previously been handled by Dr Adams and, even more seriously, by other persons whose identity was not known. The candid response of Dr Griffin was that she assumed that in 1998 the examinations (of items) were complete at that time and added: " the handling, prior to the review, the reassessment (in 2001) was not to the same LCN standards" and later "at that time they would have assumed that the examination of that item was complete." Dr Griffin later checked the laboratory records at the request of Mr Vaughan but could find no record of Dr Adam's having looked at the item

"Current DNA profiling methods are very sensitive. Using SGM+, the routine system employed at FSNI, it is possible to detect very low levels of DNA. Special treatment called LCN DNA profiling pushes this system to its limit. This technique may have value in certain limited situations where all evidential avenues have been exhausted.

The increased sensitivity is accompanied by an increased risk that the DNA to be analysed does not come from the victim or offender but from some other person not involved in the offence. It may have originated legitimately before the offence or from contamination after the offence."

She agreed that when the exhibits in this case were initially examined in the laboratory in 1998/99 there were no programmes in place within the laboratory to cater for the special examination and cleaning regimes necessary for the examination of items that might yield LCN DNA profiles.

Conclusions on the Integrity of Items subjected to LCNDNA Examination

The LCN DNA Debate

1. That LCN has only been adopted for evidential purposes in two other countries in the world, the Netherlands and New Zealand.

2. In the United States a different and much more stringent operating system for LCN is in place despite which the system is only used for intelligence purposes except in a single known case where the American LCN system was used evidentially.

3. There has been no international agreement on validation and a conference held in the Azores in September 2005 had ended with agreement only that more work in that area was needed.

4. This lack of agreement on LCN was in marked contrast to the normal SGM+ test for DNA for which there were internationally-agreed validation guidelines and definitions approved by the Scientific Working Group on DNA Analysis Methods (SWGDAM).

5. "Validation" is defined in those guidelines as "the process whereby the scientific community acquires the necessary information to:

Assess the ability of a procedure to obtain reliable results.

Determine the conditions under which such results can be obtained.

Define the limitations of the procedure.

The validation process identifies aspects of a procedure that are

critical and must be carefully controlled and monitored. "

6. Most analytical procedures have a degree of uncertainty associated with them. When a scientist (or a lawyer) receives a result he wishes to know what degree of reliability can be placed on the result so that he can judge its degree of probative value.

7. However, in the case of LCN there is no validation other than the assertion by Drs Gill and Whitaker that two published journal papers they had written amounted in effect to peer review and thereby the necessary validation, a proposition which was strongly disputed by the Defence experts.

8. "Reproduceability" ie the ability to produce the same result more than once, is a very important determinant of reliability. If, for example a test were performed twice with a matching result could it be reliably predicted that the same result would occur if the test were repeated a third or fourth time? If not what would that say about the reliability of the testing and the reliance that could be confidently placed in its results?

9. The standard practice at Birmingham was to perform the test on two aliquots of the same sample whereas in the United States they insisted upon three.

10. In the present case an experiment had been done at Birmingham in which three tests had in fact been run with the result that the consensus produced by the first two tests was removed by the differing results then thrown up by the third. Thus the normal approach used in the United Kingdom had unintentionally been demonstrated by its own proponents to be potentially (and in that particular instance actually) misleading.

"55. The absence of an agreed protocol for the validation of scientific techniques prior to their being admitted in court is entirely unsatisfactory. Judges are not well placed to determine scientific validity without input from scientists. We recommend that one of the first tasks of the Forensic Science Advisory Council be to develop a "gate-keeping" test for expert evidence. This should be done in partnership with judges, scientists and other key players in the criminal justice system, and should build on the US Daubert test."

The Government responded:

"….the Home Office, ACPO and APA are planning to consult with stakeholders on the issue of quality regulation in forensic science. The establishment of a regulator is one of the options to be considered, as is how the courts can be supported in appropriately weighing scientific evidence."

When Dr Gill was asked about this in the course of his evidence he said that he did not know whether anything had yet been done by government to further the plan. If it has not then I consider that the evidence given in this case by the FSS witnesses reinforces in the clearest way possible the need for urgent attention to this task for I am not satisfied that the publishing of two journal articles describing a process invented by the authors can be regarded without more as having "validated" that process for the purpose of its being confidently used for evidential purposes.

Final Conclusion

"Justice 'according to law' demands proper evidence. By that we mean not merely evidence which might be true and to a considerable extent probably is true, but, as the learned trial judge put it, "evidence which is so convincing in truth and manifestly reliable that it reaches the standard of proof beyond reasonable doubt."

The evidence against the accused in this case did not reach that immutable standard. Accordingly I find Mr Hoey not guilty on each of the remaining counts on the indictment.