Tuesday, 25 June 2013

The “Mr B” Case

On the 23rd January 1997, an elderly woman was brutally raped in her own home by an intruder. A DNA profile was obtained from semen taken from the victim. That DNA profile was recorded in the National DNA Database on the 15th April 1997.

Wendell Baker was arrested on a unrelated burglary charge on the 4th January 1998. On the 12th May 1998, a DNA sample taken from him was sent to the National DNA Database. He was acquitted of that burglary on the 23rd August 1998. Following the acquittal, that DNA sample should have been destroyed and Mr Baker's DNA profile removed from the database under section 63(3A) of PACE.

An administrative oversight caused Mr Baker's DNA profile to be retained by the database. On the 6th October 1998, a match was reported between Mr Baker's DNA profile and the semen DNA profile from the rape.

When Mr Baker was arrested for the burglary he had given a false name to police. Had he given his correct name, the police would have discovered that he had previously been convicted for affray. That earlier conviction would have permitted the permanent retention of Mr Baker''s DNA profile in the National DNA Database.

I was instructed to examine the work carried out by the Forensic Science Service in the rape case by Mr Baker's lawyers in early 1999.

A fresh reference DNA sample taken from Mr Baker on the 15th October 1998 and the semen from the victim had been DNA profiled using the second generation multiplex (SGM) test. This SGM test analyses six very variable “genes” and a gene that indicates whether the DNA is from a male or a female.

I found no fault in the prosecution's scientists' work. The SGM DNA profile obtained from the semen matched Mr Baker's SGM DNA profile.

The match probability – the chance of someone unrelated to Mr Baker having an SGM DNA profile matching the semen SGM DNA profile – was 1 in 17 million.

I was told Mr Baker had three full brothers. I calculated that the chance of a brother having an SGM DNA profile matching the semen SGM DNA profile was about 1 in 375.

A “1 in 17 million” match is not certain proof; coincidental matches are occasionally seen. For example, Raymond Easton was incorrectly accused of a burglary in 2000 on the basis of an SGM DNA profile match which turned out to be coincidental.

Advising the defence lawyers, I suggested that the possibility of such a coincidental match could be investigated by carrying out another DNA profiling test – the quadruplex test.

The quadruplex test analysed four genes, two of which were also analysed by the SGM test and two additional genes not analysed by the SGM test. Analysis of the two additional genes would be likely to show a difference and prove Mr Baker innocent if the SGM DNA profile match was coincidental. Of course, the evidence against Mr Baker would have been strengthened if the results for the two additional genes also matched.

At a conference on the 12th May 1999, Mr Baker's lawyers decided not to commission additional testing. They decided to challenge the DNA evidence on the basis that the DNA profile that initially identified Mr Baker – the DNA profile prepared from the sample taken after the January 1998 burglary - should have been deleted from the National DNA Database. If it had been deleted, he would not have been identified as a suspect for the rape and all that followed after the initial unlawful DNA database match was “fruit of a poisoned tree”.

At his trial for the rape in June 1999, Mr Baker's lawyers successfully argued that the DNA profiling evidence was unlawfully obtained and inadmissible. Wendell Baker was acquitted.

The trial Judge could have admitted the evidence but chose to favour the rights of the defendant over those of the victim. The trial judge's opinion was later endorsed by the Court of Appeal.

I’ve no doubt that it at least in part it was the moral panic caused by the “Mr B case” that motivated the government to change the law to allow the police to retain the DNA profiles of many thousands of innocent people, people who have been arrested but who are not prosecuted or who are acquitted - including numerous young children. The European Court on Human Rights has now condemned this measure.
The Law Lords later ruled that the DNA evidence against Mr Baker could have been used at the trial. Judges have discretion to admit such evidence. In his judgement Lord Steyn said, “It must be borne in mind that respect for the privacy of defendants is not the only value at stake. The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted”. http://www.bailii.org/uk/cases/UKHL/2000/71.html

The “double jeopardy” provisions of the Criminal Justice Act 2003 allowed the possibility that Mr Baker could be tried again for the rape if there was new and compelling evidence against him.

In November 2011, I was approached by a new team of lawyers representing Mr Baker. The DNA samples had been re-tested using another DNA profiling test called the SGMplus test. SGMplus analyses four genes in addition to the six analysed by the SGM test. The SGMplus profiles matched. The new match probability was reported as one in a billion.

Mr Baker's lawyers attempted to defend Mr Baker on the grounds that this evidence was not “new” because the SGMplus test was available at the time of the first trial. They were keen to establish when SGMplus was introduced.

I have a copy of a letter sent to the Criminal Cases Review Commission in connection with the Bamber case. This reveals that the Forensic Science Service intended to start routine use of the SGMplus test at their London laboratory on the 5th May 1999. The test could probably have been carried out at the time of the first trial.

I had been instructed in two other double jeopardy cases. In both those cases, it was argued by some of the scientists and lawyers that evidence cannot be new if it had been possible to discover or develop that evidence at the time of the first trial.

This argument has no merit whatsoever. “New” evidence is defined very simply in the law: “Evidence is new if it was not adduced in the proceedings in which the person was acquitted”.

On the 29th February 2012, the Court of Appeal ruled that Mr Baker could stand trial again for the rape. The Judges not only ruled that the SGMplus test result was new, but they also ruled that the original SGM test result was new evidence because it had not been adduced in the first trial.  http://www.bailii.org/ew/cases/EWCA/Crim/2012/414.html

Mr Baker's retrial started on the 11th June 2013 at the Old Bailey, ending on the 25th.

It took the jury less than one hour to return a guilty verdict.