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Bermingham v. Her Majesty's Advocate [2004] ScotHC 26 (04 May 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lady Cosgrove

Lord Cameron of Lochbroom

Appeal No: XC354/03

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

APPEAL AGAINST CONVICTION

JOHN WILLIAM BERMINGHAM

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: J. Reilly, Ms. Mitchell; Adams Whyte

Respondent: A. Turnbull, Q.C., A.D.; Crown Agent

4 May 2004

[1] The appellant has appealed against his conviction on two charges, namely a charge of assault with intent to rape and a charge of attempted rape.

[2] According to the other terms of the first charge of which he was convicted, the appellant assaulted an 18 year old complainer at a walkway near Gilmerton Road, Edinburgh, seized her from behind, pinned her arms to her side, placed his gloved hand over her mouth, placed her in a headlock and dragged her bodily from a path into an adjacent wooded area, threatened her, forced her to the ground and lay on top of her. According to the other terms of the second of the charges, on the same date at Fountainhall Road, in an adjacent lane and in the grounds of Newington Library, all in Edinburgh, he assaulted an 11 year old complainer, pushed her bodily over a wall, seized her from behind, placed his hand over her mouth, threatened her, abducted her to the rear of the Library, compelled her to undress and to lie on the ground, licked and handled her breasts and her private parts, inserted his fingers into her private parts, compelled her to take his private member in her mouth and uttered threats against her to dissuade her from disclosing his commission of that offence, which he committed while on bail.

[3] For the appellant, Mr. Reilly presented two grounds of appeal. The first related to the first of the two charges. He pointed out that the charge had originally included an allegation that the appellant had robbed the complainer of a purse and contents and a scarf. She had given evidence of that robbery along with the other details set out in the charge of which the appellant was convicted. The Advocate depute had withdrawn the allegation of robbery on the view that there was insufficient evidence to prove it. Mr. Reilly submitted that the evidence had been neutral as to whether the appellant's intent was to rape the complainer or to rob her. In these circumstances the trial judge had misdirected the jury in directing them that it was open to them, if they convicted the appellant of this charge, to include the aggravation that the appellant had acted "all with intent to rape her". Mr. Reilly pointed out that in seeking to prove this charge the Crown had expressly disavowed any intention to rely on the doctrine of Moorov v. H.M. Advocate 1930 JC 68. He also emphasised that the evidence given by the complainer did not indicate that there had been two discrete episodes: the whole incident had happened very quickly. Mr. Reilly sought to distinguish the circumstances in McGill v. H.M. Advocate 2001 S.C.C.R. 28. In that case it was held that it was legitimate for a jury to infer, despite deleting the averment that the appellant had attempted to remove the complainer's clothing, that he had assaulted her with intent to rape. Mr. Reilly pointed out that there were other averments which the jury held established which were indicative of a sexual motive. Furthermore, there was no question of any other intent on the part of the appellant.

[4] We are satisfied that this ground of appeal is without foundation. The jury was amply entitled to infer that the appellant had acted with intent to rape, in particular by placing his gloved hand over the complainer's mouth, putting her in a headlock and dragging her bodily from a path into an adjacent wooded area where he forced her to the ground and lay on top of her. The complainer gave evidence that she was robbed at the stage when the assailant's attack was disturbed by the arrival of a third party. Her evidence as to the stage at which the robbery took place points away from robbery as being the appellant's intent when he acted in the manner to which we have referred.

[5] The second ground of appeal relates to both charges, and is concerned with the evidence by means of which the Crown sought to establish that the appellant was the perpetrator of both of these crimes.

[6] The Crown lodged a number of forensic science reports as productions. These included production No. 29, which was a joint report by two forensic scientists, Susan Elizabeth Ure and Alistair Neil Burt, of the Forensic Science Laboratory of Tayside Police in Dundee. The report stated that a number of items, which were specified in the report, had been received from, and subsequently examined on behalf of, Lothians and Borders Police.

[7] These items included swabbing labelled as from the inside of a red glove (as to which there was evidence that it had been found at the scene of the assault which was the subject of the first charge). The report stated that DNA was extracted from any cellular material present on this item, and the DNA profile obtained indicated that DNA from more than one person was present. The major DNA profile, which was male in origin, matched the DNA profile which had been obtained from a mouth swab labelled as taken from the appellant. As regards the mouth swab it was stated that DNA had been extracted from the swab and DNA profiling carried out using a technique known as STR typing. Another item referred to in the report consisted of cells labelled as from the outside of the red glove. The report stated that DNA was extracted from any cellular material present on this item and the incomplete DNA profile obtained indicated that DNA from more than one person was present. The major DNA profile, which was female in origin, matched the respective parts of the DNA profile which had been similarly obtained from blood labelled as taken from the complainer in the first charge.

[8] The report also stated that DNA was extracted from a semen stain which was labelled as from the inside of pants worn by the complainer in the second charge (there being evidence that these pants were worn by her and that they had been handed to the police following the incident to which that charge related). The report stated that the DNA profile so obtained, which was male in origin, matched the DNA profile of the mouth swab taken from the appellant.

[9] In each case in which the authors stated that a match had been found they indicated, by reference to numerical scales, the high degree of improbability that any other person could have provided a similar match.

[10] At the time of lodging production No. 29 the prosecutor gave intimation in accordance with the terms of section 281(2) of the Criminal Procedure (Scotland) Act 1995. That subsection states:

"At the time of lodging an autopsy or forensic science report as a production the prosecutor may intimate to the accused that it is intended that only one of the pathologists or forensic scientists (whom the prosecutor shall specify) purporting to have signed the report shall be called to give evidence in respect thereof; and the evidence of that pathologist or forensic scientist shall be sufficient evidence of any fact or conclusion as to fact contained in the report and of the qualifications of the signatories, unless the accused, not less than six days before the trial or by such later time before the trial as the court may in special circumstances allow, serves notice on the prosecutor that he requires the attendance at the trial of the other pathologist or forensic scientist also".

[11] In the case of production No. 29 the Crown gave intimation, as set out in the list of productions appended to the charges in the indictment, that it was intended to call only Ms. Ure to give evidence in respect of it. Ms. Ure was called as a Crown witness and gave evidence in regard to the contents of the production to which we have referred above. She did not distinguish, nor was asked to distinguish, between the part played by herself and any other person working in the same laboratory. She explained, as is set out in an appendix to production No. 29, that forensic scientists use a number of regions of DNA, known as Short Tandem Repeats (or STRs). DNA could be extracted from very small samples and the regions of DNA to be examined could be copied or "amplified". After amplification and further analysis a pattern consisting of up to 22 "bands" could be seen. Further computer-aided interpretation of this pattern produced the DNA profile. The DNA profiles obtained from samples associated with the alleged crime could then be compared to the DNA profiles obtained from blood samples or mouth swabs from individuals who might be associated with the case. If the same DNA profile was obtained from the staining and from the blood or mouth swab of an individual, then this so-called match provided an indication that the staining came from that individual.

[12] The Advocate depute also led the evidence of Mr. Burt. During the course of his cross-examination he indicated that the DNA had been extracted by technicians within the laboratory. He himself analysed the DNA profiles which were produced as a result of the extraction, but was not responsible for that extraction. In re-examination he added that it was not the practice of the laboratory to identify the persons who extracted the DNA. At the end of the Crown case Mr. Reilly submitted that there was no case to answer, on the ground that the analysis of the DNA could not properly be spoken to by Mr. Burt. There had been a break in the evidential chain between the submission of items to the laboratory in Dundee and the analysis of the results by Mr. Burt. There was no corroborated evidence linking the DNA analysis to the material which had been taken from the complainers in each of the two charges. The trial judge repelled this submission.

[13] In the course of the defence case Ms. Ure was recalled, with the permission of the court, to give further evidence. In the course of that evidence she said that she had not personally received items when they reached the laboratory. When they arrived at reception they would have been logged on to the computer system and given a laboratory reference number. The items would have been stored until they were allocated work to be done on them. Items such as samples would be remitted immediately to the DNA section, where assistant forensic scientists would carry out the DNA profiling process, with which she was not personally involved. At the time when she and Mr. Burt compiled their report there were four assistant forensic scientists who carried out the DNA extraction. Her function was partly to interpret data which had been established by others. In cross-examination by the Advocate depute she stated that extraction of DNA by assistant forensic scientists was standard procedure within the laboratory. There was nothing exceptional about that. It was done under laboratory conditions. The assistant forensic scientists were trained in the field of forensic science, and all held the BSc honours degree. They were trained and monitored in regard to laboratory conditions, in accordance with standard procedure.

[14] At the conclusion of the defence case Mr. Reilly submitted to the trial judge that there was no evidence, or at any rate no sufficient evidence, of the necessary link between the samples delivered to the laboratory and the samples interpreted by the two forensic scientists who were the signatories of production 29. The trial judge declined to give effect to that submission in his directions to the jury.

[15] In presenting the ground of appeal, which was to the same effect as the submissions which he had made unsuccessfully at the trial, Mr. Reilly founded on the fact that Ms. Ure and Mr. Burt had accepted the accuracy of the information obtained, and the findings made, by junior colleagues. He accepted that, having done so, they used their expertise in determining the existence and significance of matches between the DNA profiles obtained from samples and those obtained from articles associated with the two incidents. However, there was a difference between the signatories of production 29 taking responsibility for what was stated in that report and their having supervised what was done by junior colleagues. Supervision required to be personal, and there was no evidence of personal supervision in the present case. Mr. Reilly founded on passages in the Opinion of the Court in Dass v. H.M. Advocate 2003 S.C.C.R. 147. In that case evidence was given by one of the signatories of a forensic science report, which was the subject of an intimation under section 281(2) of the 1995 Act, that the "analysis" had been carried out by a colleague who had not signed the report. She gave evidence that it was done "in the lab". In paragraph 24 the Lord Justice Clerk, giving the Opinion of the court, stated that it could not see how section 281 could be interpreted as entitling the Crown to lead evidence of the findings of a forensic analysis that were certified by two authorised scientists, neither of whom had taken any part in the analysis itself. He continued:

"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".

Mr. Reilly pointed out that in the preceding paragraph the court had envisaged that there might be cases where the scientists who signed a joint report had in some real and significant sense adopted responsibility for the findings of an analysis that neither of them had physically carried out. The Lord Justice Clerk stated:

"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".

Mr. Reilly submitted that what had happened in the present case had not met what was envisaged by the court in the latter passage.

[16] One obvious purpose of section 281(2) was that it should be unnecessary, unless the accused gave notice under that subsection, for the Crown to call both signatories to give evidence in respect of the forensic science report. A further implication of the subsection is that a signatory can competently give hearsay evidence in regard to a matter stated in the report. In O'Brien v. H.M. Advocate 1996 S.C.C.R. 238 it was held that section 26(7) of the Criminal Justice (Scotland) Act 1980, which was the predecessor of section 281(2), removed the need for corroboration and that its terms implied that the evidence of one forensic scientist about the work done by the other signatory which would otherwise be hearsay was admissible and sufficient evidence of any fact or conclusion in the report which both of them had signed. On the other hand, at page 241B-C the court pointed out that it was not concerned in that case with the problem which might arise if neither of the two signatories was able to speak from his or her own knowledge to a fact contained in the report because the work was done by someone else who had not signed the report. The question in the present case is whether signatories to a report can competently give hearsay evidence in regard to steps in a process which are carried out by subordinates within the same laboratory, and of which they have no direct personal knowledge.

[17] It may be noted in passing that in L.A.W. Mining Ltd. v. Carmichael 1996 S.C.C.R. 627 it was held, without reliance on any statutory provision, that corroboration of the detailed evidence of a chemist as to his analysis of samples could be provided by the general evidence of his superior that the tests were carried out in accordance with standard laboratory procedures and that the results were independently checked by him. The Advocate depute drew our attention to the decision in O'Brien v. McCreadie 1994 S.C.C.R. 516, which was concerned with the effect, under section 26(2) of the Criminal Justice (Scotland) Act 1980, the predecessor of section 280(4) of the 1995 Act, of a report purporting to be signed by two authorised forensic scientists. Each of those provisions stated that the report should be "sufficient evidence of any fact or conclusion as to fact contained in the report and of the authority of the signatories". The same language, it may be noted, appears in section 281(2). In O'Brien v. McCreadie it was observed that a report under section 26(2) might well contain information in the nature of hearsay. In the present case the Advocate depute also referred to the terms of subsection (3) of section 281 which states:

"Where, following service of a notice by the accused under subsection (2) above, evidence is given in relation to an autopsy or forensic science report by both of the pathologists or forensic scientists purporting to have signed the report, the evidence of those pathologists or forensic scientists shall be sufficient evidence of any fact (or conclusion as to fact) contained in the report."

This provision is evidently intended to deal with the situation where the provision in subsection (2) as to sufficiency of evidence is disapplied by reason of the accused having served notice on the prosecutor in accordance with that subsection. It makes the same provision in regard to the sufficiency of evidence. However, as the Advocate depute pointed out, it relates to circumstances in which both of the signatories have given evidence. That provision would lack content if it was not intended that the forensic scientists should be enabled to give competent hearsay evidence.

[18] The decisions and the statutory provisions to which we have referred support the view that the extent to which section 281(2) is intended to enable the forensic scientists to give competent hearsay evidence should not be limited to the evidence as to the work done by a co-signatory. That was envisaged by the court in Dass v. H.M. Advocate where it referred to co-signatories who have

"in some real and significant sense adopted responsibility for the findings of an analysis that neither of them has physically carried out".

Indeed, as the Advocate depute pointed out, that statement may go rather further than is required for disposal of the present case. At the same time it has to be recognised that there may be circumstances in which, as was envisaged by the court in Dass at paragraph 24, the provision as to sufficiency of evidence would not apply. However, in the circumstances of the present case we find that the preliminary work which was accepted by each of the signatories was performed by suitably qualified assistant forensic scientists working within the same laboratory and in accordance with recognised laboratory procedures. The work was monitored for adherence to those procedures. They worked as subordinates in relation to the signatories who adopted their work as the basis on which they applied their own expertise in determining the existence and significance of matches between the DNA profiles. We are satisfied that, on the evidence which was led at the trial, each of the signatories could competently give hearsay evidence in regard to the work which had been performed by the assistant forensic scientists, and accordingly there was no break or deficiency in the evidential chain.

[19] We should add, in regard to the facts of Dass v. H.M. Advocate, that it is not clear what was or was not done or by whom. There is no description of the various steps of the process as we have in the present case. This may well reflect shortcomings in the evidence which was given at the trial or in the account of the evidence which was provided to the appeal court. We find it strange that the signatory gave evidence that neither she nor her co-signatory had done the "analysis" (whatever may have been meant by that expression). The meaning and scope of that expression is not elucidated in the report. We distinguish that case from the present.

[20] In the circumstances we do not consider that this ground of appeal is well-founded. The appeal against conviction is accordingly refused.