JUDGE'S SAVAGING OF DNA TEST COULD LEAD TO APPEALS
Judge's savaging of DNA test could lead to appeals
Criticism of the controversial DNA test relied upon in the failed prosecution against Omagh bomb suspect Sean Hoey could trigger a wave of appeals from criminals convicted using the technique
PRISONERS jailed on the strength of a DNA testing technique that is under review could turn to the appeal courts to try to have their convictions quashed, according to legal experts.
Police have suspended the testing of Low Copy Number (LCN) DNA following Thursday's acquittal of Omagh bomb suspect Sean Hoey.
The Association of Chief Police Officers (Acpo) said constabularies were already operating an "interim suspension" of the cutting-edge technique.
The Crown Prosecution Service in England and Wales is to review "live" cases which involve LCN DNA testing. A similar review is being made in Northern Ireland at the request of Chief Constable Sir Hugh Orde.
It is understood that among the cases in doubt are those of:
Declan McGlinchey who faces explosive charges following the discovery of a bomb in Bellaghy, Co Derry, in July last year
Co Tyrone man John Brady who is awaiting trial for the attempted murder of RIR soldier Adrian Lucas in 2002 and possession of an under-car booby-trap device. The case relies heavily on LCN DNA evidence
Liam Hannaway from west Belfast, awaiting trial in relation to the discovery of ammunition
Barry Devine, awaiting trial in relation to an incendiary device discovered in Strabane, Co Tyrone, in 2005.
However, the Attorney General's Office has said there are no plans to review past cases.
"We need to fully take into account the review by the Home Office's forensic regulator along with the judgment from Omagh, which we have not yet considered in full," a spokesman said.
But yesterday a criminal law specialist said that rather than the prosecution service undertaking a widespread review of previous cases, it was much more likely that individuals would bring cases forward.
"There are lots of cases where LCN DNA could have been part of the evidence," Robert Brown of law firm Corker Binning said.
"In some of these, people will turn to appeal. Whether these appeals will be successful remains to be seen.
"In cases where there is other evidence besides the DNA technique, for example cases where there is DNA found at the scene as well as fingerprints - additional evidence - in these cases the appeals might not necessarily succeed.
"The judges hearing the appeal have to apply the test of whether the conviction is unsafe.
"It is very difficult to say what will happen. But in cases where the evidence almost entirely relies on this type of LCN DNA, it is more likely that the conviction could be tested to be unsafe and that could lead to a retrial."
The relatively new system - which enables the analysis of a small number of cells - was used on the timers for bombs involved in Real IRA attacks and the Omagh trial was told that the tests had found a link to Hoey.
However, Mr Justice Weir decided LCN DNA testing was not yet at a sufficiently scientific level to be considered evidence.
"In England and Wales DNA evidence has to be corroborated by other evidence," Chief Constable Tony Lake of Lincolnshire Police, Acpo's spokesman on forensics, said.
"However, as a precautionary measure the Crown Prosecution Service are currently reviewing the pending cases in which Low Copy DNA profiling is to form part of the prosecution case to see whether any may be affected.
"The review will take into account the terms of the judgment and the weight that is to be attached to the DNA evidence.
"Whilst this is being considered the police are operating an interim suspension of the use of [the LCN] DNA testing service offered by the Forensic Science Service for future investigations."
The Forensic Science Service said LCN DNA had been used about 21,000 times, generating profiles from items including matchsticks, weapon handles and clothing. Lawyers for Hoey (38), an electrician from south Armagh, said he might sue for malicious prosecution.
He spent more than four years in custody before being cleared.
The Forensic Science Service has carried out tests in the Madeleine McCann case but it is not known whether LCN DNA was used.
"We are not aware that LCN DNA features in our case but we would want to be entirely reassured of the absolute accuracy of any technique that the police are using either in Portugal or Britain in the search for Madeleine," a spokesman for the missing girl's family said.
"We and our lawyers will be watching developments in this very closely indeed."
Criticism of the controversial DNA test relied upon in the failed prosecution against Omagh bomb suspect Sean Hoey could trigger a wave of appeals from criminals convicted using the technique
PRISONERS jailed on the strength of a DNA testing technique that is under review could turn to the appeal courts to try to have their convictions quashed, according to legal experts.
Police have suspended the testing of Low Copy Number (LCN) DNA following Thursday's acquittal of Omagh bomb suspect Sean Hoey.
The Association of Chief Police Officers (Acpo) said constabularies were already operating an "interim suspension" of the cutting-edge technique.
The Crown Prosecution Service in England and Wales is to review "live" cases which involve LCN DNA testing. A similar review is being made in Northern Ireland at the request of Chief Constable Sir Hugh Orde.
It is understood that among the cases in doubt are those of:
Declan McGlinchey who faces explosive charges following the discovery of a bomb in Bellaghy, Co Derry, in July last year
Co Tyrone man John Brady who is awaiting trial for the attempted murder of RIR soldier Adrian Lucas in 2002 and possession of an under-car booby-trap device. The case relies heavily on LCN DNA evidence
Liam Hannaway from west Belfast, awaiting trial in relation to the discovery of ammunition
Barry Devine, awaiting trial in relation to an incendiary device discovered in Strabane, Co Tyrone, in 2005.
However, the Attorney General's Office has said there are no plans to review past cases.
"We need to fully take into account the review by the Home Office's forensic regulator along with the judgment from Omagh, which we have not yet considered in full," a spokesman said.
But yesterday a criminal law specialist said that rather than the prosecution service undertaking a widespread review of previous cases, it was much more likely that individuals would bring cases forward.
"There are lots of cases where LCN DNA could have been part of the evidence," Robert Brown of law firm Corker Binning said.
"In some of these, people will turn to appeal. Whether these appeals will be successful remains to be seen.
"In cases where there is other evidence besides the DNA technique, for example cases where there is DNA found at the scene as well as fingerprints - additional evidence - in these cases the appeals might not necessarily succeed.
"The judges hearing the appeal have to apply the test of whether the conviction is unsafe.
"It is very difficult to say what will happen. But in cases where the evidence almost entirely relies on this type of LCN DNA, it is more likely that the conviction could be tested to be unsafe and that could lead to a retrial."
The relatively new system - which enables the analysis of a small number of cells - was used on the timers for bombs involved in Real IRA attacks and the Omagh trial was told that the tests had found a link to Hoey.
However, Mr Justice Weir decided LCN DNA testing was not yet at a sufficiently scientific level to be considered evidence.
"In England and Wales DNA evidence has to be corroborated by other evidence," Chief Constable Tony Lake of Lincolnshire Police, Acpo's spokesman on forensics, said.
"However, as a precautionary measure the Crown Prosecution Service are currently reviewing the pending cases in which Low Copy DNA profiling is to form part of the prosecution case to see whether any may be affected.
"The review will take into account the terms of the judgment and the weight that is to be attached to the DNA evidence.
"Whilst this is being considered the police are operating an interim suspension of the use of [the LCN] DNA testing service offered by the Forensic Science Service for future investigations."
The Forensic Science Service said LCN DNA had been used about 21,000 times, generating profiles from items including matchsticks, weapon handles and clothing. Lawyers for Hoey (38), an electrician from south Armagh, said he might sue for malicious prosecution.
He spent more than four years in custody before being cleared.
The Forensic Science Service has carried out tests in the Madeleine McCann case but it is not known whether LCN DNA was used.
"We are not aware that LCN DNA features in our case but we would want to be entirely reassured of the absolute accuracy of any technique that the police are using either in Portugal or Britain in the search for Madeleine," a spokesman for the missing girl's family said.
"We and our lawyers will be watching developments in this very closely indeed."
Further Information
Publisher: THE IRISH NEWS
Ref: IN/0881
Published Date: 24-Dec-07
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