Scottish High Court of Justiciary Decisons

Dass v. Her Majesty's Advocate [2003] ScotHC 25 (16 January 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord MacLean	Appeal Nos: C907/02 XC119/02 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEAL AGAINST CONVICTION by HARPITT SINGH DASS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Kennedy; Carr & Co.

Respondent: Johnston, AD; Crown Agent

 

16 January 2003

 

The conviction

1. On 28 September 2001 at Glasgow Sheriff Court the appellant was convicted on indictment of having broken into a house at 38 Springkell Drive, Glasgow and there having stolen numerous items of property, some of them of considerable value. He was also convicted of having committed this offence while on bail. Sheriff J A Baird sentenced him to imprisonment for two years and 6 months, 6 months of that period being referable to the bail aggravation.

The evidence at the trial

2. A crucial item of evidence for the Crown was a bloodspot that was found on the frame of a broken window at the rear of the house. The bloodspot was lifted by a police scene of crime officer, Scott Carrick Johnston, by means of a swab. The swab was produced as Crown label 1. Mrs. Parmjitt Singh Kour Pruewell (Mrs Singh), one of the householders, saw Mr Johnston taking the swab.
3. Mr Johnston identified the swab as label 1 and spoke to the circumstances in which he took it. When Mrs. Singh gave evidence in chief, she was asked about the police examination of the rear of the house on the day after the break-in. Her evidence on the point was as follows:

"Did the police re-attend the next day, the 26th? - Yes.

And did they examine the scene of the break-in so to speak, the broken window and back door? - I'm not quite sure who examined it but I know that the CID were in the next day. I know the person who does the fingerprinting and all of that, they were in the next day. So everybody, yes, looked around to see where it was broken.

And did you see somebody examining the back door area and the broken window? - Yes.

Did you see if a small amount of blood was seen there? - Yes.

Whereabouts was this small amount of blood? - I think it was on the glass on the window where the glass was broken.

Was that the outside or the inside? - I think it was inside. I am not 100 per cent sure but I think it was on the inside because ... (inaudible) ... inside. I think it was actually on the window but I'm not 100 per cent sure ... (inaudible).

Was that near where the glass was broken? - Oh, yes.

And did you see the police examining that and taking swabs from it? - Yes" (Transcript, pp. 26 - 27).

Although Mrs Singh had signed label 1, she was not asked if she had done so, nor was label 1 put to her so that she could identify her signature on it.

4. On 21 April 2000 the appellant was interviewed under caution at Helen Street Police Office, Glasgow. The transcript of the tape recording of the interview was a Crown production and was spoken to. In the course of the interview the appellant was asked if he would give a blood sample for the purposes of analysis. He refused at first to do so. Later, the interviewing officer, Detective Constable Joseph McLaughlin, returned to the subject and the following exchanges took place:

"DC Okay well what I'm gonnae do shortly is stop the tape so that I

can formulate a charge against you. Do you understand that?

SUSPECT Aye

DC Okay and then I'm gonnae require you to give me blood in

respect of this break-in. Do you understand that?

SUSPECT Aye

DC Okay are you quite happy to give me blood?

SUSPECT No

DC You're not because all 'll happen is that ehm you'll go to the

Court and the Procurator Fiscal would I think ehm

SUSPECT ...

DC keep you or remand you and get a Warrant eh to take blood

from you, that's what'll happen but it's entirely up to yourself. I'm not gonnae get the doctor out for you to eh say that you're not taking blood off me so it's entirely up to yourself but that's what'll reported to the Procurator Fiscal when you go to Court.

SUSPECT Right, okay

DC So what is your position?

SUSPECT Ah'll jist give blood.

DC You'll jist give blood, okay. Right, eh this is Joseph

McLaughlin, Detective Constable. I'm stopping the interview with Harpitt eh Dass and the reason is to formulate a charge against him ... "

5. Dr James Hay, a police surgeon, took a blood sample from the appellant at Helen Street later that day. This sample was produced as Crown label 2.
6. During the evidence of DC McLaughlin, the defence solicitor objected to the leading of evidence about label 2 on the basis that it had been obtained from the appellant unfairly and against his will. To decide that question, the sheriff conducted a trial within a trial in which he heard evidence from DC McLaughlin, Dr Hay and the appellant. It appears from the sheriff's Report that that evidence related inter alia to allegations that before the tape recorder was switched on DC McLaughlin had put pressure on the appellant; that he had told the appellant that if he did not co-operate he would get 110 days; that the appellant had been frightened while the blood sample was being taken from him, and that the appellant had a fear of needles.
7. The sheriff repelled the objection. In his Report he says that he considered that what was said to the appellant at the police interview represented a factually and legally accurate picture of what would be likely to happen to him if he refused to supply a sample and that, since he had then agreed to do so, it could not be said that what had happened was unfair. His overall conclusion was that the Crown had satisfied him that the sample was not taken in circumstances that rendered it inadmissible under any rule of law, that it had been obtained freely and voluntarily and not by unfair or improper means, and that it would be fair to admit the evidence.
8. The swab and the blood sample were analysed at the forensic science laboratory of Strathclyde Police. The findings of the analysis were set out in a Joint Report dated 17 August 2000 by Marie Bernadette Campbell BSc MSc and Monica Young BSc, who were both authorised forensic scientists at the laboratory. This was Crown production 5.
9. The Crown gave notice under section 281(2) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act), that it intended to call only Monica Young to speak to the Joint Report. Since the defence did not serve a counter-notice under section 281(2), Miss Young was the sole witness for the Crown in relation to the Joint Report. The Joint Report set out the following findings.

"On 10 January, 25 April and 7 August 2000 in the Forensic Science Laboratory, the following articles each having attached to it a production label bearing the police crime/offence number GB03771299, were received from T Dougan, DC Faulds and PC Campbell all of 'G' Division, Strathclyde

Police.

BLOOD SAMPLE TAKEN FROM HARPITT DASS LABELLED 'medical room Helen Street Police Office on 21/4 2000'

The blood sample from Harpitt Dass was analysed and a DNA profile was obtained from a sex test and ten STR areas.

ONE X BLOOD LIFT LABELLED 'i/s utility room window frame at @ 38 Springhill (sic) Drive Glw on 26/12/1999'

The blood lift from the utility room 38 Springhill (sic) Drive was analysed and a DNA profile was obtained from the sex test and ten STR areas. This profile matched the DNA profile from the blood sample from Harpitt Dass.

The probability of finding these matching DNA profiles if the DNA from the blood lift from the utility room originated from another male unrelated to Harpitt Dass is estimated to be in the order of 1 in a billion."

In evidence in chief, Miss Young was asked if she had done the analysis. She replied that it was done "in the lab." In cross-examination, she was again asked if she had done the analysis. She replied "No, I didn't - my colleague Susan Williamson carried out the analysis." She was then asked "Not Marie Campbell?" She replied "No." She did not say that either she or Miss Campbell had done anything in connection with the laboratory work to which the Joint Report referred other than to sign the Report.

10. At the conclusion of the Crown case, the sheriff repelled a submission of no case to answer based on the argument that there was no sufficient proof (a) that the swab was taken at the locus and (b) that the blood on the swab was that of the appellant.

The sheriff's charge

11. The sheriff directed the jury inter alia that

"[The DNA profiling evidence] is quite sufficient evidence to identify the accused as being responsible for this offence, provided you accept it" (Charge, p. 17) ...

In considering the evidence given about DNA profiling, you must have regard to all the evidence surrounding that, that is to say the evidence of the witness who says he collected the sample, and you also heard the evidence of police officers and a doctor - or police officer, beg your pardon, one police officer and a doctor - describing the circumstances in which the blood sample was ultimately taken in the police station that you heard about from the accused, in order to send it to the scientists so that they could compare it with the blood sample found in the house" (p. 18).

12. Later, the sheriff directed the jury that they should consider whether the circumstances of the taking of the sample amounted to unfairness to the appellant and that if they accepted that there had been unfairness, the sample would fall away from the case and they would be bound to acquit (pp. 19-20).

On the question of the evidence of Monica Young, he said inter alia

" ... you will bear in mind all that she said about the methodology of assembling databases and random sampling, and you will also bear in mind observations made to you, and established on the evidence, that it does appear to have been an analysis - that is to say the analysis of the blood and the sample found at the scene - which was carried out by someone other than her ...

These are matters for you to assess, ladies and gentlemen, and if they are matters which affect the quality of the evidence given by her in such a way as to suggest to you that her evidence should not be relied upon, that is a matter for you. These are all matters that you will have to take into account in the assessment of her evidence. That is your function" (pp. 20-21).

The grounds of appeal

13. The grounds of appeal are (1) that there was insufficient proof that label 1 was a swab of blood taken at the locus; (2) that there was insufficient proof that the blood on the swab was the blood of the appellant since neither of the signatories had carried out the analysis that led to that conclusion; and (3) that the evidence relating to the taking of the blood sample from the appellant was inadmissible because it was obtained by irregular and improper means. On the first and second grounds counsel for the appellant submitted that the sheriff erred in repelling the submission of no case to answer. On the third ground he submitted that the sheriff erred in admitting the evidence. On each ground, as necessarily followed from these submissions, he argued that the relevant directions of the sheriff constituted misdirections.

 

Conclusions

(1) Identification of the swab

14. Evidence of DNA profiling is similar in its significance to evidence of fingerprints (Welsh v HM Adv, 1992 SCCR 108). Counsel for the appellant submitted that since it was crucial for the Crown to prove that the bloodspot was the blood of the appellant, the identification of the swab had to be proved by corroborated evidence (Renton and Brown, Criminal Procedure, 6th ed, para 24-76). In this case only Mr Johnston identified it.
15. The advocate depute submitted that Mr Johnston's evidence was corroborated by Mrs. Singh's evidence in the passage that we have quoted.
16. We accept the submission for the appellant. Mrs. Singh spoke only to the taking of "swabs." She did not identify label 1. Her evidence therefore did not corroborate that of Mr. Johnston on this critical question. We conclude that the sheriff erred in repelling the defence submission of no case to answer and that his directions to the jury on the point constituted a misdirection. Since the evidence was crucial, there was plainly a miscarriage of justice in this respect.

(2) The findings of the Joint Report

17. This ground of appeal raises an important point that was foreseen by the court in O'Brien v HM Adv (1996 SCCR 238, at p. 241C). This is the first occasion on which the point has arisen in clear-cut form.
18. Counsel for the appellant submitted that since the analysis of labels 1 and 2 had been done by a third party, Miss Young's evidence failed to prove the conclusions of the Joint Report.
19. The advocate depute argued that since no counter-notice was served by the defence, the meaning and effect of section 281(2) of the 1995 Act was that either of the signatories to the Joint Report could speak to its findings. The section provided that the evidence of such a person was "sufficient evidence of any fact or conclusion as to fact contained in the report." The results of the analysis were a fact, they were contained in the Joint Report, and Miss Young had signed and given evidence about it. Where two authorised scientists signed such a report, the evidence of either of them as to those findings was, in the absence of a counter-notice by the defence, relevant and admissible even if neither of them had taken any part in the analysis of the items referred to. This is in substance the Crown argument that the sheriff upheld.
20. In his Report the sheriff says

"It seemed to me that the Crown's position was the correct one, and that as the Court in O'Brien gave no guidance on the solution to the potential problem flagged up at page 241C, and there being no other contrary authority, I repelled the submission made on that point. Once again I point out that I did give specific directions to the jury regarding this area of the case ... "

21. In our opinion, the sheriff erred in repelling the defence submission of no case to answer, so far as it was based on this point, and materially misdirected the jury on the point. In the particular circumstances of this case, the fact that Miss Young did not carry out the analysis and gave evidence that it had not been carried out by Miss Campbell, did not simply affect the quality of her evidence, as the sheriff suggested. It went to the question of sufficiency. Miss Young's evidence about the analysis was pure hearsay and there was no other evidence to support it.
22. Where two scientists carry out such an analysis they may divide the work between them. In such a case, each is entitled to speak to their joint findings. The court recognised this in O'Brien v HM Adv (supra, at p. 241D-E).
23. There may also be cases where the scientists who sign a joint report have in some real and significant sense adopted responsibility for the findings of an analysis that neither of them has physically carried out. We have in mind, for example, the possibility of their having supervised an analysis done by a member of their staff. In cases of that kind the evidential value of their joint report might well depend on the nature and method of the analysis. We shall not speculate further on that matter. It is sufficient for us to say that in this case there was positive evidence that the analysis was done by a third party and there was no evidence that Miss Young or Miss Campbell had any involvement in the analysis. That matter was simply not pursued with Miss Young by the procurator fiscal, who had raised the question.
24. We should say, however, that we cannot see how the section could be interpreted as entitling the Crown to lead evidence of the findings of a forensic analysis that are certified by two authorised scientists, neither of whom has taken any part in the analysis itself. If that were to be the case, the findings of an analysis that could have been carried out by anyone, qualified or not, would be evidence in the trial so long as those findings were set out in a report to which two authorised scientists had adhibited their signatures. On that view, the evidence of either signatory in a case like this would be sufficient even if the analysis had been done by an unqualified person while the signatories were abroad. That cannot be right.
25. In our view, the sheriff should have sustained the submission of no case to answer on this ground. His direction on the point was a misdirection. Since proof that the appellant's blood was on the swab was crucial to the Crown case, there was clearly a miscarriage of justice.

(3) The taking of the blood sample

26. In our opinion, this ground of appeal fails. The sheriff's conclusion on the evidence led at the trial within a trial was a conclusion on fact. We could interfere with that conclusion only if it were shown to us that in reaching it the sheriff made a material error of law. We cannot even consider that point because we have not been referred to the evidence.
27. In any event, such evidence as we have been referred to supports the sheriff's conclusion. In the police interview the appellant was not subjected to any threat, inducement or misrepresentation. The interviewing police officer merely pointed out what steps would be available to him if the appellant persisted in his refusal to give the sample. The inaccuracy in the suggestion that the decision on a remand would rest with the procurator fiscal rather than the court was not, in our view, a material consideration on this point. Moreover, it is apparent that when the police surgeon requested the sample, the appellant complied. It is not suggested that by then the appellant was acting under any duress.
28. For these reasons we consider that this ground of appeal is without substance.

Decision

29. In the circumstances we shall allow the appeal and quash the conviction and the sentence.