17 MR. MATTHEWS: Thank you very much. Thank you for
18 the invitation to travel all this way to the U.S. for an
19 hour or so. I hope it will be useful.
20 [Laughter.]
21 MR. MATTHEWS: It's not a problem for us, believe
22 me.
23 Picking up on something mentioned earlier, if
24 anybody here is frustrated about not having their DNA in our
25 database, I'm sure we can sort something out before we go.
1 As you will see there, I'm Howard Matthews, head
2 of operations at the Criminal Cases Review Commission in
3 England. We are not a British commission, because, as you
4 all know, Scotland has its own law and they have recently
5 established their own Criminal Cases Review Commission, the
6 SCCRC. We are the CCRC, which is what I may slip into
7 calling it.
8 You've got a presentation in two parts today.
9 First, I will talk about the Criminal Cases Review
10 Commission in general. I will go a bit into its background,
11 why it came into existence and structure at the moment, the
12 kind of cases that we are dealing with, the investigations
13 we carry out, again in a very general nature. Angela will
14 be able to go into a bit more detail about the use we make
15 of DNA, the relationships we have with the rest of the
16 criminal justice system, and the results that we have got to
17 date.
18 We were established in 1997. So we have got a bit
19 of data to go on.
20 The background to why we exist.
21 In the 1970s there were a number of now world
22 renowned cases, the Guilford Four, the Maguire Seven, and
23 the Birmingham Six, explosives-related convictions following
24 the IRA's campaign on the mainland. A lot of pressure to
25 get convictions in those cases.
1 That led to a Royal Commission on Criminal
2 Justice, the same as your commissions except we have to have
3 "royal" in front of it, which in turn led to a Criminal
4 Appeal Act in 1995 and established the Criminal Cases Review
5 Commission and the statute.
6 Those bombing cases, there were 40 dead as a
7 result of the combination of Guilford, Birmingham, all of
8 them put together.
9 At the time the investigations were carried out
10 into those convictions there were no rules about detention
11 and questioning, no rules particularly about disclosure of
12 evidence, and all of those convicted protested their
13 innocence vehemently and went through the normal appeals
14 procedure. They went through the Court of Appeal and also
15 tried the Home Secretary, who at that time had the power to
16 refer cases back.
17 Prior to the establishment of our commission the
18 arrangements for reviewing conviction were that the Home
19 Secretary had the power to do so. Nobody else, just him,
20 and it was always a him, could ask the court to reconsider a
21 case.
22 It was limited to cases tried in indictments. In
23 our country, in Crown Courts there was no other review of
24 cases convicted anywhere else. He only referred four or
25 five cases a year out of many hundreds of applications.
1 And it was a reactive review. It relied on
2 somebody going to the Home Secretary and presenting him with
3 good reason why he should refer a case. There was no
4 proactivety. He couldn't go out and seek on his own behalf.
5 People also pointed out that the person sending
6 the convictions back to court was also the person who was
7 responsible for the investigation in the first place. So he
8 was responsible for police and law and order and the review
9 of that if it did go wrong.
10 In those bombing cases three appeals went up to
11 the Home Secretary. They were all slightly different, but
12 they went up again and again and again and were turned down.
13 Eventually they were passed through to the Court
14 of Appeal. The convictions, as you will probably be aware,
15 were allowed on altered records of interview, unreliable
16 confessions, fabricated confessions, flawed scientific
17 evidence at the time. Fresh scientific evidence, new
18 evidence, came up. The tests that were done at the time
19 were found to be flawed, and there was nondisclosure; fresh
20 psychiatric evidence about some of the appellants and more
21 unreliable confessions.
22 If anybody wants to interrupt, put your hands up
23 and I will stop if I am taking too much for granted.
24 So the Royal Commission was established after
25 those convictions had been quashed. It had a very wide
1 scope: to examine the effectiveness of criminal justice
2 system in England and Wales in securing conviction of the
3 guilty and acquittal of the innocent.
4 It gathered evidence over a two year period and a
5 report was published in July 1993 and covered a very wide
6 area. The report did not just cover the Criminal Cases
7 Review Commission; it covered investigation of crime and
8 trying to pull all the disparate parts of the criminal
9 justice system together to make them work more coherently.
10 What were miscarriages? Out of the Royal
11 Commission we got a few headlines of areas where miscarriage
12 came from, the genuinely hidden evidence of innocence. One
13 particular case we've had is that of Ryan James, who was
14 convicted of murdering his wife and making it look like
15 suicide. Later on the wife's genuine suicide note was
16 discovered. So a miscarriage, but perhaps no deliberate
17 activity. Just something new that came up.
18 The yet to be discovered science. Again,
19 generally no fault, nobody particular at blame that someone
20 has been convicted wrongly.
21 False confessions. Plenty of evidence that these
22 happened, and a real responsibility on the prosecutor to be
23 aware of the possibility, especially with vulnerable
24 victims, vulnerable applicants, that people of a low
25 intellectual capability can be browbeaten into making false
1 confessions which they don't even understand at the time
2 they made them.
3 Frail evidence. Turning Queen's evidence. Other
4 inmates suddenly coming up with evidence that they have
5 overheard so and so in the prison yard confessing.
6 Nondisclosure. Again, before the Royal
7 Commission, nondisclosure of evidence. Things never came
8 up. Prosecution had information that should have been
9 released and never was.
10 Deliberate misconduct.
11 And then just plain poor performance. Somebody
12 has not deliberately got things wrong but simply has not
13 been very good at their job or poorly instructed. We have
14 an issue here where we are just now formulating our policies
15 on how we notify other organizations within the criminal
16 justice system of poor performance that we have discovered.
17 We may discover poor performance in any area. It
18 could be police; it could be investigations; it could be
19 forensic science; it could be other experts; but it's
20 important that we get that information back into the
21 criminal justice system so the poor performance is stopped
22 as soon as possible.
23 In 1995 the Criminal Appeal Acts brought about the
24 Criminal Cases Review Commission. Where do we sit in the
25 government of Britain?

1 We are what is called an NDPB, a nondepartmental
2 public body. It means that we are responsible to a
3 committee of Parliament. We are not part of a department;
4 we don't report to the Home Secretary; we report to the Home
5 Affairs Select Committee.
6 We are funded by a grant from the Home Office, but
7 we have our own structure, our own chairman, our own chief
8 executive, and our own budget, and we are left alone to do
9 our job.
10 That job is reviewing any criminal conviction in
11 England, Wales, or Northern Ireland. So it could be Crown
12 Court, it could be Magistrates Court, it can be a parking
13 offense, it can be a murder. Anybody is free to apply to
14 us. There is no charge for them to apply to us. All the
15 costs are met by the Home Office as long as they have
16 committed a criminal offense, and we even have applicants
17 who have not committed a criminal offense but are still
18 convinced that we must review the fact the world is against
19 them.
20 The end result of it is that we can direct the
21 appropriate courts to hear the case again. We can make a
22 referral back to the Court of Appeal or the Crown Court if
23 it's been a magistrate's conviction originally, and they
24 will hear that referral.
25 The structure we have at the moment.
1 A chairman and a chief executive who were the
2 first appointees in January 1997, who spent most of their
3 time setting the place up.
4 A director of finance and personnel.
5 And 13 commission members. They have come from a
6 variety of backgrounds. Our legislation requires that two
7 thirds of them should be legally qualified; one third of
8 them need not be. We have got 13 at the moment. That
9 equates to 7.2 full-time equivalents, because many of them
10 are part time, anything between one and four days a week.
11 And they come from all backgrounds. We have Crown
12 prosecutors; we have got barristers; people from business,
13 financial directors; somebody from the Serious Fraud Office;
14 ex-chief constables.
15 They are all appointed on open competition, and we
16 are just going through a round now. Three years have gone
17 by, their contracts have expired, and the Home Secretary is
18 now appointing new commissioners. The old ones are free to
19 apply for their jobs again, but they have to go through the
20 interview procedure themselves.
21 Head of operations, me.
22 Two legal advisers to provide advice to the case
23 review managers about points of law.
24 One investigations adviser, an ex-police officer
25 who advises us on carrying out interviews.
1 A head of information who deals with all the press
2 interests in our activity, which, as you can imagine, varies
3 with the case we are dealing with. When we have high
4 profile cases, we have to organize press conferences in
5 large rooms for tens of journalists. When it's not so high
6 profile, we are left alone.
7 Forty-three case review staff. They are the ones
8 who actually carry out the review of the cases.
9 Case review managers.
10 We just introduced a new category of case workers.
11 So you can already see, I think, that the
12 organization is tipped towards case review. We have few
13 support staff. Fourteen staff actually support the case
14 workers, process applications, and carry out the
15 administrative work for the case review managers.
16 And then ten management support staff.
17 I think we are up to a total -- I'll take that
18 away before you add it all up and I'll get it wrong -- of
19 about 86 at the moment. We are authorized to go on up to a
20 total of about 50 case review managers.
21 Current structure is very flat. There are no
22 senior managers. The case review managers don't report to a
23 senior manager who checks their work. I will mention here
24 how the work is carried out.
25 The two animals who do case work are the case
1 review managers and the commission members. For every
2 application that we have that we review a case review
3 manager and one commission member are assigned to it.
4 The case review manager goes out and does all the
5 work. The commission member makes sure that the work is
6 done in the right order, the right time, and we are not
7 chasing our tails pointlessly.
8 So we have one manager and one member per case,
9 but that said, when we have very large cases, more case
10 review managers can be assigned to it. But there will
11 always be one case review manager and one commission member.
12 DR. REILLY: Excuse me. What kind of training
13 does one need to be a case review manager?
14 MR. MATTHEWS: Case review managers have come from
15 a wide variety of backgrounds. They've all got some
16 experience in investigation; solicitors, barristers,
17 ex-police officers, trading standards, social services. Our
18 chairman is very keen on testing and recruitment, and we
19 test for analytical skills. That said, there is no
20 particular background people would have to come from. It's
21 just the skills that they must bring.
22 When the case review manager and a commission
23 member have reached a conclusion about a case, which could
24 be in half a day if it's fairly straightforward, or it could
25 be in three years, as we've still got cases alive from when
1 we took them on, their investigations are passed to another
2 commission member or group of commission members to make a
3 decision. So the case review manager and the commission
4 member who investigated the case are not the ones who decide
5 that it will go back to the Court of Appeal or not. That is
6 always taken by a separate member.
7 The statute gives us a slight problem because it
8 says if we are not making a referral, we can decide with one
9 commission member. If we are making a referral, we need
10 three. You never know when you are starting is this going
11 to be a referral or not. So the commission member and the
12 case review manager will decide whether this is looking like
13 a referral and call a committee if necessary.
14 Once the decision has been made, the applicant is
15 given 28 days to respond. I will come later on to the
16 statistics. We refuse an awful lot more cases than we
17 refer, and the applicants are given the opportunity to come
18 back and make further representations before we finally
19 close their case.
20 Once we finally close their case, some of them ask
21 for an application form and apply again with the same
22 grounds, some new grounds, anything they can think of that
23 might persuade us. They go to the back of the queue, and
24 the queue unfortunately at the moment is quite long.
25 So we do try to be as thorough as we can. We try
1 to address every issue that the applicant raises. If they
2 have a genuine concern about an issue which we know is not
3 going anywhere, we will explain to them why it isn't going
4 anywhere so we don't have to do the work all over again when
5 they reapply.
6 When an application comes in, it's a simple
7 application form. I've passed around an information pack
8 which has got an application form in it. If any of you get
9 criminal convictions in the United Kingdom, you don't even
10 have to ask for the form now.
11 [Laughter.]
12 MR. MATTHEWS: And we will provide help for people
13 to fill application forms in. They don't even have to fill
14 in an application form; they can write us a letter. We do
15 know that the average reading age of our applicants is
16 around seven. So we've tried to make the application form
17 as simple as possible, and a lot of them do get help in
18 filling in application forms from probation officers and the
19 police and the prison services.
20 The first thing we do is check that the
21 application is actually eligible according to our statute.
22 The applicant must have been through the appeal procedure.
23 So they must have, if they were convicted in a Crown Court,
24 applied for leave to appeal to the Appeal Court. They can
25 have had that leave turned down or they can have been heard,
1 but as long as they have completed that procedure, then they
2 can apply to us.
3 We have a wonderful catchall which appears a
4 couple of times called exceptional circumstances. Nobody
5 can define exceptional circumstances, but if we see one, we
6 know what it looks like, and we can take an application from
7 somebody who hasn't appealed.
8 For instance, if we have got two codefendants one
9 of whom has been to appeal and one of whom hasn't, if we
10 find grounds to refer the case of the one who had been to
11 appeal, then we can take the other one as well, because it
12 would be a waste of time to tell him to go on appeal and get
13 turned down.
14 MR. SMITH: Do you need an application from the
15 other one, or can you initiate applications on your own?
16 MR. MATTHEWS: We can initiate applications. One
17 of the powers we have in the Act which we haven't used yet
18 because we are inundated with applications is that we can go
19 out and seek miscarriages of justice. So if something comes
20 to our attention that we think needs investigation, we can
21 choose to do that.
22 MR. SMITH: But at this point that is theoretical;
23 you haven't done it?
24 MR. MATTHEWS: We haven't done it actively. What
25 has happened is that we have come across investigation
1 activities or operations that have gone wrong. We may have
2 one applicant who has been part of that operation. Suddenly
3 there are 20 more who were arrested and convicted on the
4 same operation which is now flawed. So we will then go out
5 and find them as well.
6 We screen for issues now. What we used to do, as
7 soon as a case was eligible, we would stick it in the queue
8 and it would go to the back, and we had over 1,000 cases
9 waiting to be looked at by a case review manager.
10 What we are doing now is looking at those cases
11 briefly to see if they raise genuine issues that are really
12 going to need investigation. If they're not, then we will
13 try and close them straight away. So if we can close them
14 with a minimum of case worker effort, we will do so. If
15 not, then they have to go on to wait for a full review.
16 The sort of issues we are screening out are the
17 jury was put off because the victim's mother cried in the
18 public gallery, therefore it's a miscarriage of justice. So
19 we can deal with that sort of thing fairly quickly.
20 Then we pass those on to a full review. A full
21 review is when we assign a case review manager and a
22 commission member to the case to start looking at it in
23 detail. That full review process will involve going back to
24 the original investigation and looking at all the documents.
25 I will come on to how we actually investigate cases in a
1 second.
2 One of the options we have when we are in full
3 review is that we can appoint an investigating officer. One
4 of the particular powers within our Act is that if we think
5 that the original investigation needs investigation itself,
6 we can appoint usually a police officer from another force
7 to go in and review the original investigation.
8 It's not done often. We have done about 15, I
9 think, in the time of three years. They become very
10 lengthy. They need careful management. We are responsible
11 for managing that investigating officer, and we can change
12 them at any time if we want to. It has to be a careful
13 decision, and this is one that does have to be made by a
14 committee of three commission members, to send a police
15 officer into another force to investigate what appears to be
16 a problem with their original investigation.
17 The application profile. What do we get? At the
18 moment we are getting three a day. When we started we were
19 getting five a day. That has tailed off now, but it seems
20 to be remaining fairly steady.
21 Twenty percent of the cases are ineligibles; 20
22 percent of our applicants over the three years have not been
23 to appeal. At the moment we don't know how many of those we
24 send away who then come back again, having sought leave to
25 appeal and being refused, but it's not many, because we are

1 trying not to send people around pointless bureaucratic
2 loops. If their conviction was five years old, there is no
3 way the Court of Appeal is going to allow them to appeal out
4 of time. So we will try and deal with their case. If the
5 case is very recent, a very recent conviction, then we will
6 say go back to the Court of Appeal and seek leave, and very
7 often they may get it.
8 Truly ineligible applications are those who have
9 got an appeal pending. So they will apply to the Court of
10 Appeal and us just to be on the safe side.
11 Thirty-four percent then are closed at that
12 screening point. So 34 percent are raising no significant
13 issues that are going to go anywhere.
14 Once they have got through there, we have got 32
15 percent are in custody and 14 percent are at liberty. At
16 the moment our policy is that we deal with those in custody
17 first. So anybody who is in prison, when their turn comes
18 up we will deal with them.
19 We have an unfortunate group who were in custody
20 when they applied to us. They waited so long they have now
21 got out. So they are at liberty and they have gone to the
22 bottom of the queue.
23 We are trying to address at-liberty cases and we
24 are starting to do that now. The Home Affairs Select
25 Committee is keen that we should particularly consider
1 significant at-liberty cases but of course didn't actually
2 say what significant meant.
3 The average age of convictions is 33 months. We
4 have some convictions going back to the 1950s. We've got
5 obviously ones who have only just come out of Court of
6 Appeal. So the average is 33 months, and that has come down
7 quite significantly from when we started.
8 The average sentence is just under five years.
9 Again, that belies a big spread. We've got a lot of lifers;
10 we have a lot of fines: 5 pounds for a parking offense in
11 1957. Because it's a criminal conviction, we must deal with
12 it. As you can imagine, anybody who is prepared to pursue a
13 parking ticket since 1957 is very keen that their case
14 should be considered fully and will not take a quick and
15 lighthearted view of any review that doesn't go into all the
16 details. I think the lowest offense we have is a 3 pound
17 fine in 1962 for a barking dog in Ipswich.
18 So why do people apply to us? What are the common
19 grounds that people think a miscarriage of justice has taken
20 place?
21 Confession was beaten out of them, forced out of
22 them; they never meant it in the first place; it was only a
23 laugh; they should never have done it and they have changed
24 their mind.
25 Mistaken identification. It simply wasn't them.
1 We've just had a referral of mistaken identification where
2 an applicant had been jailed for three years for a burglary
3 on mistaken identification. It turned out three years later
4 the police managed to check an unconfirmed fingerprint from
5 the scene and identified it with a known burglar from the
6 same area. So we managed to get that applicant out of jail
7 before Christmas on bail.
8 New witnesses or experts. Particularly when
9 anybody convicted keeps a very close eye on their own
10 particular crime, if they see a new expert has come up, then
11 they will want that expert who will cast doubt on their
12 conviction. Or a new witness who has genuinely come
13 forward. The defense never found them at the time and now
14 they are willing to speak.
15 Prosecution failure to disclose. The prosecution
16 had information that it never passed to the defense.
17 Defense incompetence. Quite popular, defense
18 incompetence. Just didn't do a good job and the brief was
19 useless.
20 Retraction of evidence. Witnesses at the original
21 trial are now willing to retract their evidence, that the
22 story they made up at the time was a false one. One case
23 we've looked into recently the witness certainly was not
24 willing to retract their evidence, but it was in the
25 applicant's mind that they would.
1 Forensic evidence. Either the forensic evidence
2 was false, was wrong at the time, or there is new forensic
3 evidence.
4 Changed evidence. Everybody has changed their
5 mind. It was all a pack of lies at the time and everybody
6 would tell the truth if they were only asked again.
7 Breaches of the legal safeguards. Now that we
8 have acts which dictate how people must be questioned and
9 handled in custody, it was all done wrong.
10 And it's all a conspiracy from two policemen who
11 arrested me. One of them is living with my wife, and so
12 both of them concocted this story to get me out of the way,
13 to, obviously the entire world is conspiring, the judges,
14 the courts, and everybody else.
15 Trial was conducted poorly. One where the judge
16 fell asleep, apparently.
17 There is a new legal argument. We do have a few
18 cases of new legal arguments and we try to deal with those
19 fairly quickly, because if it's on a legal point, our legal
20 advisers can address that point fairly rapidly and send it
21 straight back to the Court of Appeal.
22 One where an applicant convicted in the
23 Magistrate's Court of an offense that didn't actually exist
24 as an offense at the time he was convicted of it. It came
25 in a few days later.
1 Similar evidence. Very popular. The applicant
2 reads about a case just the same as his where the person on
3 trial got off, and it was identical, so why didn't he get
4 off?
5 Once we have got the application, where do we
6 start? We start by looking at the documents. The applicant
7 must come to us with something new. We can't refer a case
8 back purely on the grounds that the court heard all the
9 evidence but the jury made the wrong decision. If
10 everything was before the jury and the jury made that
11 decision, then that is not a miscarriage of justice.
12 So what we have to check is that what the
13 applicant is telling us is genuinely new. We look back at
14 the documents. We get the trial transcripts, which can be
15 difficult if the conviction is very old. We get summings
16 up; we get Court of Appeal files, which again can be a
17 problem because before we existed nobody ever asked for this
18 stuff. Once the case was finished, once it had gone through
19 the Court of Appeal, it was put in a basement in London and
20 nobody would ever want to look at it again. Now we are
21 sending off requests for ten files a day to a Court of
22 Appeal who have never been resourced to supply that. So
23 actually getting the Court of Appeal file can be a problem.
24 MR. THOMA: Excuse me. Do you have court
25 reporting at all levels?
1 MR. MATTHEWS: We don't at Magistrates Court; we
2 do at Crown Court. There is no recording at Magistrates
3 Court at all.
4 MR. THOMA: Just clerk's notes?
5 MR. MATTHEWS: Yes, if that.
6 CHIEF JUSTICE ABRAHAMSON: What percent of your
7 cases come from Magistrate?
8 MR. MATTHEWS: It's low, 12, 15, something of that
9 order. Magistrates Court cases give us a problem, because
10 if they are old, there is simply no way we are going to be
11 able to reconstruct the original trial. The memories are
12 gone; the papers have gone. I think Magistrates Courts
13 destroy their papers very, very quickly, in about a year or
14 so.
15 MR. CLARKE: What crimes are they?
16 MR. MATTHEWS: In the Magistrates Courts?
17 MR. CLARKE: Yes.
18 MR. MATTHEWS: Occasionally assaults, lots of
19 traffic offenses, parking, speeding. Adulterating wine was
20 one of them.
21 The Home Secretary, as you are probably aware, is
22 looking at reviewing whether a case can be tried at
23 Magistrates Court or Crown Court and whether the applicant
24 has the choice as to which court he goes to. So we went
25 through our Magistrates convictions and took a quick look at
1 whether we would be able to actually do them or not. Out
2 of, I think, 200 we had 20 or 30 that were going to be
3 impossible. The only way they would be tried again would be
4 to go back to court, and the original evidence had gone;
5 everything had gone. So we haven't actually crossed that
6 bridge yet.
7 MR. REINSTEIN: Has it ever been discussed as to
8 whether or not to limit the cases to just Crown Court cases
9 as opposed to Magistrates Court?
10 MR. MATTHEWS: Not yet. I don't know if anything
11 is going to come out of this Home Secretary's review of
12 either-way cases, but for us it's all criminal convictions,
13 and for the Home Office before us it was all criminal
14 convictions as well.
15 We can carry out interviews. We have very
16 wide-ranging powers. We can do pretty much anything that
17 will further our investigations. We can interview the
18 applicant; we can interview the witness; we can interview
19 the victims; we can interview the investigating officers; we
20 can get judges' notebooks.
21 We can carry out forensic tests. We can either
22 instruct new forensic tests on existing evidence if it's
23 still available, or we can have the original forensic tests
24 reviewed.
25 We can appoint our own experts who we will pay.
1 Experts on anything -- firearms, forensics, medical.
2 And again, we can appoint our own investigators.
3 The powers we have got. Access to documents and
4 material from any public body. That immediately covers the
5 police, the court service, customs.
6 It gets a bit more difficult with health services
7 and our welfare services who are in the public domain, but
8 some of them don't consider themselves to be public bodies
9 as far as this Act is concerned. Because we are fairly new,
10 we are still discussing with individuals when we go to them
11 that we consider them to be a public body. We have a
12 discussion about it and eventually they either agree or not.
13 I think in every case so far they have agreed.
14 The investigating officer again, and the power to
15 direct and change that officer if necessary.
16 Powers to take any steps appropriate in the
17 exercise of our functions, which is pretty wide-ranging.
18 Relations with other bodies, with the police and
19 with customs and excise. They are both assisting us and
20 probably the subject of investigations. We will be looking
21 at what they did originally and asking them to help us in
22 supplying the original material that was part of the trial.
23 Most of the police forces now and customs and
24 excise have got particular offices nominated to deal with
25 our requests, because under section 17 of our Act we send
1 them a note saying they must preserve everything connected
2 with the case. Then when we get around to reviewing it, we
3 will ask them to send it to us. So they take all the
4 notebooks, all the transcripts, all the physical evidence
5 and store it for us and mark it that it can't be interfered
6 with in any way.
7 Forensic Science Service can be subject to the
8 same. They can be helping us out by reviewing old material,
9 or we can be looking at an investigation that they carried
10 out sometime ago.
11 The court services running around trying to find
12 all the old transcripts for us, all the old judgments, an
13 area that they weren't used to doing before.
14 Other public bodies. I mentioned health. Medical
15 records can be a problem because local health authorities
16 deny they are the owners; it's the doctor. Then the doctor
17 denies he's the owner; it's the health department. So you
18 go around and around in a circle until we eventually get
19 them out.
20 Social services files, particularly in cases of
21 intra-family sexual abuse where we are trying to get hold of
22 the social services file which contains all the details of
23 allegations of sexual abuse within a family. Social
24 services are very jealous of giving that information out to
25 anybody, understandably, and us being a new organization who

1 they are not used to.
2 Private bodies we have no power over at all. They
3 don't have to give us anything. We try and get their
4 cooperation, but there is no line in the statute that says
5 we have the right to see anything that they have.
6 The new regulations in Scotland do have the power
7 to get access to private bodies. They have to go through
8 the courts, but the statute exists to give them access to
9 information held by private bodies, such as telephone
10 company. We can't get telephone records unless the
11 telephone company are minded to cooperate.
12 At the moment we are putting together some
13 proposals to revise our legislation, and that will be one of
14 the areas that we want to try to cover.
15 After all that, the case outcome.
16 We decide not to refer a case to the Court of
17 Appeal. There is nothing in it. And this can have come as
18 a result of half a day's work because there were no issues,
19 or it can be many months or years. A single member can make
20 that decision, or we could have a committee. We may call a
21 committee because it's a very complex case. It may be a
22 referral, it may not; it's going to depend on the decision
23 of the committee. They may decide not to refer a case to
24 the Court of Appeal.
25 We will send the applicant the reasons why we
1 think he's not going to go to the Court of Appeal, and he
2 has the 28 days to come back and argue the point or bring
3 any new evidence forward.
4 We do refer a conviction or a sentence to the
5 Court of Appeal, and only the committee can do that. Once
6 we have made that referral, the Court of Appeal has to hear
7 it. They have no discretion about whether they want to hear
8 the referral or not. They have to do it.
9 From a Magistrates Court it goes back to Crown
10 Court. So again the Crown Court there would have to hear
11 our referral.
12 Once the reference leaves us it becomes the
13 property of the applicant. There is no further involvement
14 from us once it has left us as a statement of reasons. This
15 can mean the Court of Appeal gets our statement of reasons.
16 So they get our reasoning of every issue, why we think the
17 conviction was unsafe, but the applicant is perfectly at
18 liberty to ignore all those and go for something else.
19 What has happened in a very recent case is that
20 the barrister involved and the applicant were concerned
21 there was police malpractice. We didn't find enough
22 evidence of police malpractice to refer it, but that's the
23 line they chose to follow, and the appeal failed.
24 CHIEF JUSTICE ABRAHAMSON: How much evidence do
25 you need, preponderance or convincing beyond a reasonable
1 doubt?
2 MR. MATTHEWS: Our statute talks about a real
3 possibility that the conviction was unsafe. As you all
4 know, every time real possibility gets defined a little bit
5 more and a little bit more, unsafe gets defined a little bit
6 more.
7 The Court of Appeal has commented they will seldom
8 see a sentence as a miscarriage of justice unless it was
9 manifest, unless the judge got the sentencing completely
10 wrong. It can be severe, but the judge at the time was the
11 one who knew the circumstances, and the sentence dealt out
12 in those circumstances, if all the evidence was before the
13 judge, cannot be a miscarriage of justice. So sentence
14 referrals are getting a bit fewer and farther between.
15 So where were we at December? We had received in
16 three years 2,996 applications. Six hundred and fifty of
17 those were ineligible. So they are the ones who hadn't
18 appealed or were in the process of appealing. And we have
19 closed 752. That means we have reviewed them and reached a
20 decision.
21 Out of 752 cases we have referred 70 back to the
22 Court of Appeal. At the end of December, 32 of those had
23 been heard and 24 had been quashed.
24 That is a reasonable position for us. We have
25 still got 1,500 cases waiting to be reviewed now and 1,100
1 we know of that are waiting for a full review. We don't
2 like having the queue, but those figures show that we are
3 referring about right. We wouldn't want every single case
4 we referred to be quashed, because it might mean we were
5 missing some that were borderline. Equally, we wouldn't
6 want every case we referred to be upheld, because then we
7 would be referring unnecessarily.
8 Similarly, the proportion, 70 cases out of 752
9 that were closed, is a reasonable proportion, because part
10 of our task is to improve the confidence in the criminal
11 justice system. So we are there to sort out miscarriages,
12 to identify them, and also to improve the confidence in the
13 criminal justice system and show that it is not as bad as
14 people had thought.
15 CHIEF JUSTICE ABRAHAMSON: How long does it take
16 you from the beginning to the end?
17 MR. MATTHEWS: If you average all the cases
18 together, it takes us 40 working days to close a case, but
19 those 40 working days can be stretched over three years
20 because a lot of the time is dead time waiting for
21 application information to come in. The solicitors who are
22 getting information from the original trial have to make
23 fresh submissions, and a lot of our time is spent waiting.
24 Every case review manager carries a caseload of about six
25 cases.
1 CHIEF JUSTICE ABRAHAMSON: Are the applicants
2 generally in prison during this time?
3 MR. MATTHEWS: Yes. Once we make a referral, the
4 solicitor can usually apply for bail, and depending on the
5 nature of the crime, they may get it or not.
6 MR. SCHECK: How many of these have come to be DNA
7 exonerations?
8 MR. MATTHEWS: Angela is going to do DNA in a
9 minute, but we've had about 40 cases so far that have
10 involved DNA. So after those 752 we've specifically used
11 DNA on about 40.
12 I don't know how many have been quashed as a
13 result of DNA, but I know we have some that DNA has not been
14 the deciding factor; it has been just one of many factors.
15 And we've had cases with DNA evidence where there has been
16 no referral. We've see the DNA evidence and decided there
17 was not a miscarriage of justice.
18 CHIEF JUSTICE ABRAHAMSON: How are you viewed by
19 the prosecution, defense and judges?
20 MR. MATTHEWS: Very well, I think. We have a good
21 reputation. I would say that, wouldn't I? I wouldn't say
22 we had a terrible one. We take our time. Our chairman's
23 guiding principle is that we must do things properly; we
24 must never rush; we must never push things through for the
25 sake of getting them through; we must make sure that we
1 cover everything. When the people you are dealing with see
2 that you have done a proper job, they're happy and they
3 don't think we are fiddling about.
4 MR. SCHECK: I've seen the reports in the Bentley
5 case. Maybe you could describe a little bit for us these
6 reports. As you said, your purpose is to enhance confidence
7 in the system. So in a sense what you are doing, whether
8 you refer one and it's quashed or you refer it and it's not
9 quashed, you are analyzing what is right and wrong with the
10 system and you seem to be making suggestions on how to
11 change things. Is that right?
12 MR. MATTHEWS: We identify, I suppose, where we
13 have referrals something has gone wrong, and how do we
14 address what has gone wrong. What needs to be changed?
15 The issue that has brought this to the fore is
16 that if we find that there has been police malpractice from
17 a currently serving officer, we are under a responsibility
18 to get that information back into the criminal justice
19 system so that the performance of that individual can be
20 addressed.
21 We could potentially find something systematically
22 wrong with the criminal justice system. We could find an
23 area that is not working in principle.
24 MR. SCHECK: What are the remedies if you find
25 that a prosecutor has withheld exculpatory evidence, or
1 conversely, that a barrister is incompetent?
2 MR. MATTHEWS: As I say, we have just developed
3 and it's out for consultation, and I think one or two of the
4 professional bodies have come back with responses now that
5 who should we report professional discipline to.
6 If we find a barrister or solicitor or forensic
7 scientist or a police officer or anybody, how do we get that
8 information back into the system? How would those
9 professional bodies, how would the bar association, how
10 would the office for regulation of solicitors like us to get
11 that information back into the system that they can act upon
12 it?
13 We have a clear obligation to report crime. If we
14 discover a crime, then there is no question. If we discover
15 incompetence, it gets more difficult because the
16 organization could obviously say, well, who are we to judge
17 incompetence on this one particular case or one particular
18 aspect? So it's a very live issue for us at the moment.
19 We've had a case where we were issuing our
20 statement of reasons which was very critical of a certain
21 police force. The statement of reasons went to the
22 applicant, who immediately went to his representative, who
23 immediately went to the press, and the first the police
24 force saw of it was the front page of a national paper
25 saying that we had branded this police force as incompetent.
1 So we have had fairly vigorous discussions with
2 the Association of Police Officers about how we get that
3 sort of information to them without breaching our
4 obligations under the Act that we should not disclose
5 anything to anybody other than the applicant. What tends to
6 happen is that we will issue notices to police forces on the
7 same day, or at least make sure that they are aware of what
8 is coming.
9 MR. SCHECK: Let's say that you find that there is
10 a prosecutor that has withheld exculpatory evidence. I take
11 it that is not necessarily a crime. It could be a crime, in
12 theory. In the UK would you ordinarily have like bar
13 associations or disciplinary committees that would
14 ordinarily pass upon those? Are those in existence? How
15 does that work?
16 MR. MATTHEWS: I'd have to confess ignorance here,
17 being neither a lawyer nor a scientist, my expertise on DNA
18 and on the law. I don't know if Angela would know any more
19 about that. She may be able to answer you in a bit more
20 detail. As far as our policy goes, we notify the
21 professional body and their own disciplinary procedures then
22 take over.
23 If there is nothing further for me, I will hand it
24 over to Angela who will go through our use of DNA in case
25 review.
1 [Applause.]
2 MS. FLOWER: Good afternoon, everybody. I'm
3 Angela Flower, case review manager with the Criminal Cases
4 Review Commission in Birmingham. My background. I'm a
5 lawyer by trade and I'm part of the case working staff at
6 the CCRC where I've been now since 1997.
7 Prior to that I was in private practice as a
8 solicitor in England, and I was aware of DNA profiling,
9 having encountered it in a number of cases but only to a
10 limited extent. Since working at the CCRC I have become
11 acutely aware of the power of this fascinating technique,
12 although I can't pretend to have done anything more than
13 scratch the surface of understanding its many complexities.
14 I would like to look at the way in which we have
15 used DNA profiling in case work since we started up at the
16 commission. DNA profiling comprises a very small aspect of
17 our work. We use a multiplicity of other forensic
18 scientific techniques, but today I want to look at a few of
19 the cases where DNA has been a real issue.
20 It is quite difficult to categorize the types of
21 case, but I think they fall into three loose categories:
22 Those which are pre-1989 where DNA profiling
23 wasn't available at the time of the original trial. The
24 problem we have in those cases is that very often the
25 original exhibits will have been destroyed. So to some

1 extent we are at the mercy of the retention and destruction
2 policies of the original investigating police forces.
3 The second category, post-1989, we are looking to
4 obtain results in cases where early profiling attempts have
5 failed or were inconclusive, or perhaps to explore a
6 particular aspect of a submission, such as a new theory or
7 alternative scenario.
8 The third category is a miscellaneous hodge-podge
9 of stuff that applicants send in to us, which includes
10 anything from requests for recalculation of statistics,
11 challenges to the database comparisons, the way in which the
12 random occurrence ratio is stated, although that is not so
13 much of a problem since the UK case of Adams, which seems to
14 have put some order and discipline on the way in which
15 scientists now express this evidence in court, and that has
16 alleviated a lot of the concerns.
17 We also get applications from applicants who
18 obviously have no understanding of what DNA is. For
19 example, in consent rape cases we have applicants insisting
20 that a DNA test will prove their innocence when in actual
21 fact it won't prove anything of the sort.
22 The first case I would like to look at today is
23 the case of X. I will be referring to all the cases that I
24 am going to touch on today by an initial to preserve privacy
25 and anonymity for our applicants.
1 This is a good example of how DNA can be used in
2 some of the older cases.
3 In this particular case it appeared that the DNA
4 issue was going to be quite clear-cut and simple, but it
5 soon became very complex. We had to take some unexpected
6 steps and we got some quite unexpected results.
7 It is also, I think, a good illustration of the
8 fact that our commission is prepared to make every effort
9 regardless of expense so long as it is reasonable to obtain
10 the best evidence possible in order to evaluate the safety
11 or otherwise of a conviction even after the death of the
12 applicant.
13 The brief facts of this case are that it occurred
14 back in 1961. A couple in a car were kidnapped by a lone
15 gunman. The male victim was shot twice in the head and
16 killed, and the female victim, who I will refer to as V, was
17 raped, shot and left for dead, but did manage to survive
18 albeit paralyzed from the waist down ever since.
19 So what led to his arrest? First of all, the gun,
20 the murder weapon, was found hidden under the seat of a bus,
21 wrapped in a handkerchief. The bullets and cartridge cases
22 that were found at the crime scene were actually fired from
23 the murder weapon. That was demonstrated by ballistics.
24 Two cartridge cases fired from the gun were found
25 in a hotel room. We knew that X had occupied the hotel room
1 on the night of the murder.
2 He was arrested two months later. After quite a
3 long police chase, it took them two months to track him
4 down. It was a nationwide manhunt.
5 The evidence against him at trial was that he was
6 linked to the gun obviously, the hotel room, and the crime
7 scene by the ballistics evidence. He was identified on an
8 identification parade by the female victim, but only after
9 she heard him speak. He shared the same blood group as the
10 killer rapist. And as a result of that he was convicted and
11 executed by the state by hanging in 1962.
12 Just to briefly look at the forensic evidence that
13 was available at the trial. After examining the items from
14 the crime scene, a scientist was able to state the blood
15 groups of the parties. He examined the female victim's
16 underwear and was able to say that the killer was a glucose
17 secretor.
18 Just to sum up the groups that we knew, male
19 victim, female victim, X and the killer rapist. As you can
20 see, they have the same profile.
21 Glucose secretors at that stage were about 35 to
22 40 percent of the UK population. So it was hardly
23 compelling evidence, and that is all that was available with
24 the techniques that were around in those days.
25 Since the execution, X's family has mounted a
1 campaign to clear his name. There have been several books
2 written, several TV programs and films have been made. The
3 solicitors have submitted numerous petitions to the Home
4 Secretary. The case has been reinvestigated twice, and in
5 1997 the CCRC received an application to review the
6 conviction.
7 You can just look now at the relevant crime scene
8 exhibits and stains. There were a lot of tests carried out
9 on various items that had been left over from the original
10 investigation, but these are the ones that we are concerned
11 with for today's purposes.
12 The victim's underwear was stained with a mixture
13 of vaginal fluid from her and seminal fluid from the killer
14 rapist. The slip, or underskirt, was stained with blood
15 from the female victim, and the handkerchief wrapped around
16 the gun contained stains of unknown type and origin. It
17 wasn't possible at the original trial to say what they were
18 or where they came from.
19 After the trial, the underwear and slip were
20 destroyed as a potential health hazard, but cloth samples
21 were retained and kept in storage by the metropolitan police
22 forensic science laboratory. The handkerchief was retained
23 and stored by the original investigating police force. so
24 although this man's conviction was almost 40 years old, we
25 were lucky enough to be able to find some of the original
1 physical exhibits.
2 Between 1991 and 1995 the solicitor's for his
3 family requested DNA profiling on the remaining exhibits to
4 see whether they would yield any fresh evidence. That
5 request was eventually granted, after extensive negotiations
6 with a number of various public bodies and authorities, in
7 1995.
8 This is a photograph of the cloth as it was in
9 1995. You can see that it is extremely small. It's about
10 10 millimeters by 10 millimeters before it was cut, and that
11 is pretty much all we had to go on.
12 This is a photograph of the cloth from the
13 victim's slip. It's slightly dark. It takes a while to
14 come up. You can just see the original blood stain on the
15 fabric.
16 We don't have a photograph of the handkerchief,
17 but it's an ordinary gent's white cotton handkerchief, and I
18 couldn't see that it would be very interesting to you to see
19 a photograph of that.
20 The attempt in 1995 to obtain DNA profiles. We
21 used the standard STR analysis, 6 point STR. These were
22 tests, by the way, that were carried out by the victim's
23 family's solicitors at their expense rather than by the
24 commission because this, of course, was before we came into
25 being.
1 The fabric was then cut into four pieces for
2 extraction. Unfortunately, one of the scientists dropped a
3 piece onto a non-sterile rack, so it was viewed as
4 potentially contaminated and excluded from the 1995 tests.
5 The fabric yielded 40 microliters of extract
6 containing DNA, of which 20 microliters were tested; 20
7 microliters were frozen and stored.
8 The first test was negative, and in view of that,
9 no attempt was made to test any other item. At that stage
10 the forensic science service in the UK were predicting major
11 advances in DNA profiling, and a view was taken that it
12 would be sensible to wait for the advances of science and
13 see what could be done.
14 So our investigation then starts in 1997. This
15 was an enormous case. The original documentation filled
16 several boxes in several rooms in several police stations,
17 and that was because of this nationwide hunt for the killer
18 between the time of the commission of the crime and the time
19 of X's arrest. So there were vast quantities of
20 documentation to read, a number of witnesses to be traced
21 and interviewed, a number of scientific tests to be
22 conducted. For example, ballistics, forensic linguistics,
23 psychological and psychiatric analyses, and other
24 document-based matters.
25 There were six CCRC investigators put onto this
1 case as a team, and the case logically split into about five
2 or six areas. So one of us managed to deal with each one
3 and then keep in contact with the others and see how things
4 were going.
5 The whole investigation took over two years.
6 Our preliminary inquiries revealed that there had
7 been a massive nondisclosure to the defense. There were
8 gross irregularities in the interview process, and there was
9 a great deal of fresh evidence, and the early indications
10 suggested that conviction may well be unsafe.
11 We therefore made a decision to pursue the
12 question of DNA profiling further, but that was only after
13 consultation with the forensic science service and X's
14 family, because they were unhappy with our proposed used of
15 the 20 microliters of stored extract, because if that
16 failed, there would be little or no material left for any
17 future attempt.
18 We negotiated with them and reached a position of
19 compromise. These were the few sources that we had
20 available to us from the original material in 1997, the 20
21 microliters that had been frozen and stored, the remains of
22 the cloth and fluid, and the small piece of potentially
23 contaminated cloth that had been excluded from the 1995
24 test.
25 We had the cloth sample with the blood stain from
1 the slip and we had the complete item, the handkerchief.
2 The DNA profiling techniques that were recommended
3 to us by the FSS in 1997 were short tandem repeats, the
4 second generation multiplex, which had already failed in the
5 1995 tests. So we didn't see any point in that; enhanced
6 sensitivity STR, which they call ESSTR; mitochondrial mini
7 sequencing, and mitochondrial full sequencing.
8 Looking firstly at the enhanced sensitivity,
9 ESSTR, that's a research technique which had not been
10 validated for forensic case work. It's a modified version
11 of the standard STR technique, and the modification is that
12 the number of times the template DNA is copied is increased
13 to make the analysis more sensitive.
14 I believe that this was first used in the
15 identification of the Romanov remains, the Russian royal
16 family, by the forensic science service in the UK in about
17 1994-95. The results in that case are generally regarded, I
18 believe, as being quite compelling, and therefore ESSTR was
19 the technique of our choice for these tests on this very
20 small piece of remaining material.
21 Two typical concerns identified with ESSTR were
22 that contaminant DNA can be copied up and generate an
23 erroneous profile and that the template DNA is small and the
24 balance reaction is altered, and the net effect of that is
25 artifacts produce confused data and hinder clear
1 interpretation.
2 The effect of both of those concerns is to exclude
3 the true source. In view of that, we took the view that
4 there was little or no risk to X that this would operate to
5 his disadvantage; if anything, it was going to exclude
6 rather than include him.
7 Looking at the ESSTR results, the cloth from the
8 victim's underwear, the stain had two components, seminal
9 and vaginal fluid, which were successfully separated
10 although traces of each remained in the other. So there was
11 a major and a minor element to each fraction of the stain.
12 The major profile from the seminal fraction was a
13 male, and it gave a result at 4 out of the 6 STR loci. The
14 major profile from the epithelial fraction from the female
15 had a result at 6 STR loci. So we had a complete clear
16 profile.
17 There was also evidence of DNA from the third
18 source, and we thought that could be contaminant; it may be
19 the female victim's lover because we know from what she said
20 to the police that they had sexual intercourse about 54
21 hours prior to the rape.
22 The two profiles from the underwear being split
23 there. The color shading indicates what we say is the
24 identity of the contributors. It's blue for the victim,
25 yellow for the rapist, and green for the unknown trace

1 profile.
2 Looking at the profiles from the handkerchief, we
3 didn't know what the stains were, but the scientists thought
4 they were probably nasal secretion or sweat. It was a male
5 profile, and we got a clear result at all 6 STR loci. That
6 is a color representation of the stain on the handkerchief.
7 The cloth from the slip, we thought it was the
8 blood stain from the female victim. Again, it was shown to
9 be female, with clear results at all 6 STR loci. You can
10 see that that is represented there in blue for the victim.
11 Just to summarizes the preliminary ESSTR results.
12 We have the underwear showing seminal fluid with 4 point
13 comparison, vaginal fluid with 6, the handkerchief with 6
14 points nasal fluid. You can see by the color these two
15 match at the corresponding STR loci, and the slip bloodstain
16 which matches the vaginal fluid on the underwear.
17 Represented another way, on the colored shading
18 you can now perhaps see the distribution of the staining and
19 what is attributable to each of the parties.
20 This piece of evidence was particularly
21 significant because it established a link between the
22 handkerchief and the underwear that had never been made at
23 the time of the trial. It simply wasn't known whether or
24 not the person who put the handkerchief around the gun was
25 the same person that committed this crime.
1 So the seminal fraction of the staining on the
2 underwear definitely originates, according to DNA evidence,
3 from the same male individual who left the staining on the
4 handkerchief.
5 All this was very interesting, but it didn't give
6 us any ideas as to the identity of the rapist. So we had to
7 look around for some comparison sources to see what we could
8 do with these profiles. The potential options to us were X,
9 who was deceased, his brother who is still alive, his
10 mother, the female victim, and the male victim who is
11 deceased.
12 We spoke to X's mother and brother, and they both
13 agreed to cooperate in the provision of saliva samples for
14 DNA profiling.
15 Looking first at X's brother, who I am going to
16 refer to as B, he's not an ideal comparison source because
17 his nuclear DNA will be unique, but some features will be
18 broadly similar to the nuclear DNA profile of X, and we
19 thought that some useful information could be gleaned from
20 that.
21 When we looked at a comparison between the
22 handkerchief and B, you can see that there is a full match
23 at 3 STR loci, a partial match at 2, and no match at 1. The
24 scientist's view provided that that is moderate support for
25 the proposition that B's brother contributed to the staining
1 on the handkerchief and the underwear.
2 Moving on the X's mother, again she is not an
3 ideal comparison source, but some features of the DNA will
4 be similar. So we thought it was worthwhile running a test
5 to see what we could gain from that.
6 When we look at the handkerchief and the mother,
7 you can see that there is a partial match at all 6 STR loci.
8 The scientists' view of that was it was strong support for
9 the proposition a brother of B and the son of M contributed
10 to the staining on the handkerchief and the underwear.
11 At this point we needed to get a comparison
12 profile from the female victim. This obviously is a
13 sensitive issue and one that I know your commission has
14 considered and investigated in great detail. This lady had
15 obviously been traumatized by what happened to her, and it
16 was a very difficult time for her when we had to make the
17 approach. But she was a lady of great common sense and
18 courage, and she made an informed and very brave decision to
19 assist us in this case.
20 She agreed to provide the saliva sample. Her
21 nuclear DNA showed to be identical to the profiles from the
22 blood stain on the slip and the epithelial fraction of the
23 stain on the underwear. So that goes some way to
24 authenticating those items, because there had been great
25 problems with the continuity of these exhibits and how they
1 had been stored, and we anticipated all sorts of problems
2 with people saying how do you know where these pieces of
3 material came from? They've been on a file in an unmarked
4 envelope, and they could be anything or have come from
5 anyone.
6 When we look at the underwear, the slip, you can
7 see that the profiles are entirely consistent with the
8 history of the crime. We've got a perfect match to all 6
9 STR loci.
10 The probability of a match, scientists tell us,
11 would be something in the region of 1 in 300 million. So
12 it's a fairly compelling statistic.
13 We then needed to look at corroborative profiles,
14 because the FSS in the UK tend to duplicate their results
15 when they can; that is, to conduct a second test from the
16 same source to confirm the results. In this case there was
17 insufficient material from the small piece of cloth from the
18 underwear, so in an attempt to obtain corroboration, we
19 looked at the other sources.
20 There was the 20 microliter pellet that had been
21 stored and frozen. We got the family's consent to go ahead
22 and test that, but unfortunately it had degraded in storage
23 and there was no result.
24 We then managed to have a look at the extraction
25 liquid retained after the 1995 test, and lo and behold, we
1 managed to get a clear result at all 6 STR loci, which now
2 improves the quality of the profile that we had before,
3 which only had 4. And that matched the handkerchief and
4 also matched the underwear.
5 Again, just a graphic representation of what we
6 already know but with the additional profile, the extraction
7 liquid, with a result at all 6.
8 We still didn't have a direct comparison source
9 from X himself, so we looked at the possibility of
10 alternative reference samples. The only thing we could
11 think of was that he had sent a couple of postcards to his
12 mom back in 1961, and they were used at trial for reasons I
13 won't go into. We thought that perhaps his DNA could be
14 detected from the saliva on the back of the postage stamp.
15 There was a partial profile on stamp 1 with a
16 result at 2 STR loci, and stamp 2 gave a partial profile
17 with a result at 2 also. They matched the 2 corresponding
18 STR loci on the handkerchief. That's a very common
19 combination and was of little evidential value. I think the
20 figure that the scientists gave us was only 1 in 14, which
21 wasn't particularly useful.
22 Then we had a complication in that stamp number 2
23 yielded a second partial profile with a result at 5 STR
24 loci, and that was inconsistent with any other profile in
25 the case. That could have been contaminant. We don't know
1 who licked and fixed the stamp onto the cards. It could
2 even have been the postmaster. Possible explanations and
3 options are quite many and varied.
4 At this stage the STR results couldn't be taken
5 any further without exhuming the remains of X. So we
6 decided to investigate the possibility of mitochondrial DNA
7 testing. The same exhibits were tested, and I will run
8 through this very quickly.
9 This is a profile from the handkerchief, the
10 staining on the underwear, the female fraction. We couldn't
11 get a stain profile from the seminal fraction with the
12 staining on the underwear. We got one from the blood stain
13 on the slip and one from stamp 1.
14 Apparently it's very difficult to obtain
15 mitochondrial DNA from semen, especially when it's old or
16 degraded.
17 The same comparison sources, the brother, the
18 mother, and the female victim, who had already provided
19 their saliva samples, and we have that sequenced.
20 When we looked at the handkerchief and B, we had a
21 perfect match on the mini sequence, but that is only a
22 screening and elimination technique that forensic science
23 service use, and so we moved on to a full sequence.
24 The full sequence was confirming the mini sequence
25 by 380 positions at duplication and 225 positions which were
1 taken from a single extract, and therefore they are
2 unconfirmed, but the total of positions that were confirmed
3 was 605.
4 Looking at the underwear, the slip and V, we've
5 got a perfect match there on the mini sequence, and in view
6 of the compelling STR results, we made a decision that there
7 was no point in going ahead to a full sequence.
8 The rarity of mitochondrial DNA profile, the
9 sequence is uncommon and unlikely to occur more often than 1
10 in 100 in the general population, and the FSS advised that
11 that was moderately strong support for the proposition that
12 mitochondrial DNA on the handkerchief came from X or a
13 maternally linked relative, but that relates to the
14 handkerchief only, not the underwear.
15 So with the mitochondrial DNA technique we have no
16 link between the handkerchief and the underwear, and there
17 is no information as to the identity of the killer rapist.
18 We then asked the genetic statistician to consider
19 whether or not the STR and mtDNA results could be combined.
20 He said that they are mutually exclusive. One can't be used
21 to increase the evidential link with the other; the combined
22 results can't be expressed numerically, but they provide
23 strong support for the proposition that the DNA on the
24 handkerchief came from a full brother of B.
25 Looking at the standard levels of support that we
1 use in the UK -- I don't know if your system is the same --
2 what happens is it is expressed as two alternative
3 propositions on a scale of 1 to 6, and the times more likely
4 is converted into the level of support, going from weak or
5 limited to very strong, and being left to the discretion of
6 the scientists when it is particularly compelling.
7 At this stage we took further advice from the FSS,
8 and they told that if a matching reference sample was
9 obtained from X, then the STR random occurrence ratio could
10 be as high as 1 in 6 million and the mitochondrial DNA
11 results could be confirmed. If the reference sample didn't
12 match, then X could be eliminated as a source for the
13 staining on the underwear and the handkerchief.
14 So we were advised to apply for an exhumation. It
15 could be possible to extract DNA from his bones, teeth and
16 hair, and given the results in the Romanov remains case,
17 which is exactly what they did there, the scientists said
18 they were cautiously optimistic that this could be done.
19 Just a bit of background. This gentleman was
20 executed in 1961 and buried in a prison yard. He was then
21 exhumed and reentered in a family burial plot in 1966. His
22 aunt was then buried on top in the same grave in 1977, and
23 the family owned the exclusive burial rights to the plot.
24 There are two ways that we can get an exhumation
25 order in the UK. The first is by coroner's warrant, which
1 can only be issued to redetermine the cause of death. There
2 was no issue to how this gentleman died. He was hanged.
3 [Laughter.]
4 MR. MATTHEWS: There wasn't any prospect of that
5 being granted.
6 The other way is by Home Secretary's license,
7 which is usually used to remove remains from one location to
8 another. These applications were apparently quite common in
9 the UK after the abolition of capital punishment, because
10 everybody who had got a relative buried in a prison yard
11 wanted to take advantage of the system to have remains
12 removed to consecrated ground.
13 The procedure is actually quite complicated. You
14 have to get the application together, get the consent of the
15 next of kin, get the consent of the burial authority, and
16 then submit the application to the Home Office
17 Constitutional and Community Policy Directorate, who
18 hopefully grant the license to exhume.
19 This is an extreme step and not one that we wanted
20 to take lightly. We consulted the family. Obviously they
21 were very distressed by this prospect, and they raised a
22 number of interesting and valid points, which included the
23 privilege against self-incrimination extending to X's
24 remains. If he is not alive to waive the privilege, then
25 his remains should not be disturbed.

1 As he was originally interred in quick lime, it
2 was unlikely that there would be anything left.
3 And ESSTR is a research technique and can't be
4 relied on in legal proceedings.
5 We, of course, had to take a view on each of the
6 matters that they had raised, and we found that the
7 privilege against self-incrimination was inapplicable
8 because he had already been convicted.
9 We spoke at length to a pathologist, who confirmed
10 that quick lime is used to dehydrate flesh on a corpse and
11 has no effect on bones and teeth.
12 We interviewed the original prison officer who was
13 present at the execution, the burial, and the first
14 exhumation, and he told us that there was a full skeleton at
15 the time the remains were transferred in 1966.
16 As the interment was in a zinc lined hermetically
17 sealed coffin, there was every reason to suppose that the
18 remains were still quite well preserved, and the FSS said
19 that they had full confidence in ESSTR as a result of the
20 Romanov remains case and there was no reason why we
21 shouldn't make the application and go ahead.
22 Despite the objections raised by the family, the
23 application was submitted in 1998. But then the burial
24 authority withheld its consent due to the absence of consent
25 of X's family. That left us in a position that even if a
1 license was granted by the Home Office, then our exhumation
2 would have constituted actionable trespass, and as a
3 nondepartmental public body, we can't really be seen to be
4 committing unlawful acts, and therefore the application to
5 exhume was suspended.
6 The family's current attitude is that the
7 objection to exhumation is not absolute, and if the Court of
8 Appeal were to express a view that it should be carried out,
9 then their objection may be withdrawn.
10 Just to conclude that. On the one hand, we seem
11 to have significant evidence suggesting that X's conviction
12 may be unsafe. On the other, we have significant DNA
13 evidence which tends to suggest that his conviction is safe.
14 That can't be confirmed without an exhumation. So X's case
15 was referred to the Court of Appeal in 1999, and the outcome
16 is awaited.
17 It will be interesting to see how the Court of
18 Appeal deal with the question of the DNA evidence. That is
19 referred to in our statement of reasons. There is an old
20 common law case in the UK called Robinson, which I think
21 goes back to about 1914, which says that the crown cannot
22 improve its case on appeal. The defense don't have to rely
23 on grounds identified by the Criminal Cases Review
24 Commission.
25 The advances of science are generating this type
1 of situation on an ever-increasing basis. So hopefully when
2 this case is heard, the Court of Appeal in the UK will take
3 the opportunity to make some statement that will clarify
4 matters for us for the future.
5 That is the end of Mr. X. If I can just quickly
6 run through a few other examples of how the CCRC has used
7 DNA profiling in more recent cases. It won't take anything
8 like as long.
9 Mr. Q illustrates the point that DNA evidence can
10 provide a reason for declining to refer a case. It is one
11 of our Northern Ireland cases.
12 In 1995, a female victim, a German student, was
13 camping when she was approached by two men, Mr. Q and Mr. A.
14 One man raped her and one man assaulted her, but she
15 couldn't say which one was which.
16 There was a single large semen stain on her
17 clothing from the rape. They tried the old quadraplex test,
18 which looked at, I think, 4 of the STR loci, and that
19 failed. So there was no forensic evidence at court with
20 respect to this matter.
21 Q denied the rape or any offense, blaming A, and A
22 admitted the assault, blaming Q for the rape. The evidence
23 at trial was that the semen couldn't be attributed to either
24 but it must have come from one of them.
25 When the jury heard that A had admitted the
1 assault, understandably they convicted Q of rape.
2 The application to us was that contemporary DNA
3 profiling of the semen stains would show that A committed
4 the rape and not Q.
5 The outcome was that we got a partial profile
6 which excluded A as a source, included Q as a source, and
7 although the random occurrence ratio was very low, only 1 in
8 720, we declined to refer the case to the Court of Appeal.
9 The case of Mr. O. This is an illustration of how
10 physical experts can yield fresh evidence and how a
11 preposterous defense can gain credibility.
12 The facts of that case are that it's a conviction
13 for armed robbery in 1997. Three men were involved, all
14 wearing balaclavas. One was dropped at the scene, and Mr. O
15 and several other suspects were arrested in the vicinity
16 within about an hour.
17 In his first interview with the police, Mr. O said
18 that he wasn't involved. He was released pending result of
19 forensic examination of footwear impressions at the scene,
20 which matched his shoes, and in his second interview, when
21 this was put to him, he made no comment.
22 About 18 months after his arrest he wandered over
23 to the police and told them that he had been approached by A
24 in the street just before the robbery. A had bullied him
25 into exchanging shoes, and so A must have left the footwear
1 impressions at the scene.
2 At trial, of course, we had the evidence that A
3 wasn't one of the original suspects; O was tried alone;
4 there was the footwear impression, and the adverse
5 inferences that the jury were told they could draw from his
6 failure to mention in interview that he had been forced to
7 exchange shoes with A.
8 Our investigation was quite interesting. After
9 his conviction, as a result of what he told the police about
10 A, a marker was put onto A's PNC, or police national
11 computer file, to the effect that if he was ever arrested
12 for another recordable offense, a saliva sample was to be
13 taken from him and entered into the database and run against
14 the DNA profile taken from the balaclava.
15 By the time we started investigating A's
16 conviction this had actually occurred, and we discovered
17 that A's DNA profile did match the saliva on the balaclava.
18 That was insufficient in itself to justify a referral, so we
19 looked at the trainers. That yielded 2 profiles,
20 unidentified female and A. There wasn't any DNA relating to
21 a present, and on the basis of that the case was referred to
22 the Court of Appeal, and we expect it to be heard in the
23 next couple of weeks.
24 Has everybody had enough? I've got about 5
25 minutes to go.
1 MR. SCHECK: What is a balaclava?
2 MS. FLOWER: It's a woolen helmet with eye holes
3 cut that you often see terrorists or criminals using.
4 The case of Mr. C. This is perhaps an
5 illustration of how DNA evidence can support a defendant's
6 account of his movements.
7 The facts here was that it was in one of our
8 Newcastle nightclubs just before DNA evidence was introduced
9 into case work. There were two fights going on in the club
10 at the same time, although in different areas, which is not
11 uncommon for Newcastle on Tyne.
12 A female victim, sadly, was struck in the neck by
13 glass and bled to death in fight number one. C said he was
14 only involved in fight number two, so he couldn't have been
15 anywhere near V.
16 The evidence against him at trial was that S, who
17 was V's boyfriend, was standing near to her when she was
18 attacked and had bloodstains on his shirt. In addition to
19 the blood from V, he had C's blood type on his shirt.
20 Although that was only 30 percent of the UK population, the
21 jury heard that C had a severe cut to his finger caused by
22 glass, because he had been interviewed by the police after
23 they checked the attendance records at local hospitals. On
24 the combination of that, C was convicted of the murder of
25 this girl.
1 The submission to us was that if the blood on S's
2 shirt was not from C, then that lends support to his account
3 that he was not involved in fight number two.
4 The outcome was that DNA profiling showed that the
5 blood on the shirt didn't derive from C, S or V, and coupled
6 with the discovery of some undisclosed material, this formed
7 the basis for referral to the Court of Appeal.
8 Again, that is one where we are awaiting the
9 result.
10 The last one I want to mention today is the case
11 of J. I find this one particularly interesting. Again,
12 it's not resolved, but I can't wait to see what happens with
13 it.
14 This is in 1986, again before the advent of DNA
15 profiling.
16 A family of five were discovered dead in a house,
17 a mother, father, daughter and her two children. All had
18 died from gunshot wounds fired from a rifle. The facts were
19 that there were only two possible scenarios. Either the
20 daughter, who had a history of mental illness, had killed
21 her family and then shot herself, or J killed all five
22 victims. He was the brother who stood to inherit the family
23 wealth.
24 Initially the police thought the daughter was
25 responsible, but a couple of days later they found a
1 silencer for the rifle in a box in a cupboard in the house.
2 When they examined that, they found there was blood present
3 due to backspatter, and that was the same blood group as the
4 daughter.
5 She couldn't have shot herself with the silencer
6 attached to the rifle because her arms weren't long enough
7 to have positioned the rifle into her chin to blow her own
8 brains out. She couldn't have shot herself and then removed
9 the silencer and put it in the cupboard, for obvious
10 reasons, and the only other evidence against J at trial was
11 an alleged statement of intent to a former girlfriend he had
12 said that he wanted to bump off his family to inherit the
13 money.
14 The submission we had received was that because at
15 trial the prosecution claimed the blood on the silencer
16 derived from the daughter alone, that was very damaging. It
17 could have derived from two or more of the victims, not
18 including the daughter, and it could have been an erroneous
19 blood grouping at the time as a result. This would show
20 that the daughter could have shot the four victims with the
21 silencer on the gun and then removed it and killed herself.
22 So we are awaiting the result of that. The FSS
23 are attempting a new analysis called STR SGM Plus technique,
24 and the blood in the silencer is being examined to see
25 whether it is from more than one source so it can be
1 separated and profiled.
2 Just a note about STR SGM Plus. This examines 10
3 of the STR loci, which generates random occurrence ratios in
4 the region of 1 in 1 billion. It has been used in the UK
5 now for about six months by the forensic science service. I
6 think there are plans to replace the 6 loci profiles in the
7 database with 10 loci profiles so that the UK database will
8 eventually run on a 10 point STR.
9 I was speaking to the chief scientist at the
10 forensic science service last week. He was telling me of a
11 case in Bolton, in Lancashire, a few weeks ago where the DNA
12 database identified a hit on comparison with a crime scene
13 stain, as a result of which a suspect was arrested and
14 charged with, I think, a sexual offense.
15 The random occurrence ratio based on 6 point STR
16 was 1 in 37 million. CPS thought that was low and asked for
17 an extension to 10 point, and that excluded the suspect.
18 And the FSS are currently conducting research into the
19 situation.
20 There are a number of implications for this, not
21 least of which that everybody in the UK who has ever been
22 convicted on 6 point STR profiling will want to apply to us
23 to have their convictions reviewed. I think it is a quite
24 worrying phenomenon, and I shall be glad to hear what the
25 FSS have to say about this and how and why it's happened.

1 That's really all have to say today. Thank you
2 very much for your attention. It's a great privilege to be
3 your guests here in Washington, D.C., and to meet you all.
4 I would like to take this opportunity on behalf of the
5 Criminal Cases Review Commission to wish you all the very
6 best of work in your future endeavors.
7 [Applause.]
8 MR. CROW: Are these 10 loci included within the
9 database?
10 MS. FLOWER: I don't know if you use the same 10
11 loci in your 13 on CODIS that we use in the UK.
12 MR. CROW: The six are. I know that.
13 MS. FLOWER: It's the same 6, because we make
14 comparisons against your database.
15 MR. SCHECK: Has anything comparable ever happened
16 before, 1 in 37 million? How many other loci was he
17 excluded on, more than one?
18 MS. FLOWER: I don't know. I'm still waiting for
19 a report from the FSS to find out why this happened. It
20 could be that there was some mistake made when the original
21 test was done. It could be that it's gene mutation; it
22 could be a close family. I don't know. As soon as we know,
23 I will put something on the e-mail to you so that you are
24 aware of it too.
25 CHIEF JUSTICE ABRAHAMSON: Something must have
1 been suspicious to ask for a review with 1 in 37 million.
2 MS. FLOWER: Apparently our crime prosecution
3 service thought it was quite low.
4 CHIEF JUSTICE ABRAHAMSON: Thank you very much.
5 Thanks to both of you for coming and for giving us that
6 interesting talk.
7 We are back to the Postconviction Working Group
8 report and to the retention of the sample base.
9 Ron, what had you planned for the hour? I'm
10 trying to see how much time we've got.

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