Forensic Science and Law: The Use of the Fingerprints and DNA Samples of Innocent Persons - Assignment Example

Topic: Forensic Science and Law Preferred language style: English (U.K Answer Before attempt to discuss the current position about the human rights debate on fingerprint, it needs to discuss the powers of police relating to fingerprints and samples. The s.9 (1) of Police and Criminal Evidence Act 1984 provides taking fingerprints without consent extends the circumstance in which the police may take a person’s fingerprints without consent to include taking fingerprints from a person arrested for a record able offence and detained in the police station. However, expert evidence on fingerprints is likely to be excluded if there are less than eight matching ridge characteristics. If there are no exceptional circumstances, the prosecution should not attempt to introduce such evidence. A judge would also consider whether there were any dissimilar characteristics between the print and that taken from the accused, and the size, quality and clarity of the print relied upon [R v Buckley1]. Section 61 of PACE 1984 currently provides powers for taking fingerprints from those in police detention without consent in the following circumstance: Following charge with a recordable offence or notification that a suspect will be reported for such an offence, On the authority of an insp0ector, which can only be given where the officer has reasonable grounds for believing the suspect is involved in a criminal offence and the fingerprints will tend to confirm or disprove his involvement or facilitate the ascertainment of his identity. An authorization may only be given for the facilitating the ascertainment of the person’s identity where the person has either refused to identify themselves or the authorizing officer has reasonable grounds to suspect they are not who they claim to be. Fingerprints may also be taken from a person convicted of a reasonable offence or cautioned, warned or reprimanded in respect of such an offence. Subsection (2) replaces the existing provisions about the taking of fingerprints on the authority of an inspector with a wider power to take fingerprints from any person detained in consequence of his arrest for a reasonable offence. The existing requirements to give a person whose fingerprints are taken without consent reasons for doing so and for recording the reason as soon as practical applies to the new power. This amendment to Section 61 of PACE 1984 will prevent persons who come in to police custody and who may be wanted on a warrant or for questioning on other matters from avoiding detection by giving the police a false name and address. Using Livescan technology, which enables the police to take fingerprints electronically and which is linked to the national fingerprint database (NAFIS), the police will be able to confirm a person’s identity whilst he is still in police detention if his fingerprints have been taken previously. It will also assist in enabling vulnerable or violent people to be identified more quickly and dealt with more effectively. A speculative search of the fingerprint crime scene database will also reveal if the person may have been involved in other crimes. The recent criteria for the collection and retention of bio-information (the retention of DNA samples) by police are wholly disproportionate to the Article 8(1) of the ECHR. In R v Chief Constable of South Yorkshire ex parte S and Marper2 the House of Lords held that the retention of DNA samples of persons arrested but not subsequently convicted did not interfere with the right to respect for personal privacy under Article 8(1) of the ECHR even if it did was a legitimate restriction under Article 8(2). Article 8 of the ECHR provides that everyone has the right to respect for his private and family life, his home and his correspondence. After this decision Marper appealed for violation of Article 6 right to a fair trail. In Marper v the United Kingdom3 the Court has asked whether the retention of the applicants that fingerprints, DNA profiles and DNA samples involves an interference with the right to respect for their private and family life as guaranteed under Article 8(1) European Convention on Human Rights. In this case Court concluded that the application should be allowed and the Court should declare a violation of Article 8 and Article 14 of the Convention. In R v. Doheny4, Phillips LJ said that Members of the Jury, if you accept the scientific evidence called by the Crown, this indicates that there are probably only four or five white males in the UK from whom that semen stain could have come. The Defendant is one of them. Whether you are sure that it was the Defendant who left that stain or whether it is possible that it was one of that other small group of men who share the same DNA characteristics. In R v Bates5 Moore-Bick LJ said that the jury are made aware of its inherent limitations and are given a sufficient explanation to enable them to evaluate it. PACE now allows both the retention and use of the fingerprints, and DNA samples of innocent persons, which is a significant interference with the rights of such individuals under Article 8(1) of the ECHR. Retention of this information is a fresh attack of Art. 8 ECHR interests and must be subjected to fresh Art. 8(2) analysis. 2. In both civil and criminal cases, the opinions of the witnesses are not generally admissible. Opinions and conclusion, are for the court to reach, based upon the information placed before it. When reaching a conclusion of fact, the Court should make its decision itself. Witnesses are normally confined to stating the facts or claim to have seen them. Civil Evidence Act 1972, S.3 (1) provides that where a person is called as a witness in any civil proceedings his opinion on any relevant matter on which he is qualified to give expert evidence will be admissible in evidence. However there are many situations in which an issue the Court is required to determine is so far removed from the Court’s experience that it needs the opinions of experts to help it determine the issue of question. It is not possible to list the matters in respect of which expert evidence is required; some matters (medical and scientific) obviously call for the opinions of expert. In R v Turner6, CA Lawton LJ put the point very effectively and said that that fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion of matters of human nature and behaviour within the limits of normality any more helpful than that of jurors themselves; but there is a danger that they may think it does. From the decision of the case expert witnesses may now be called where the accused is alleged to be suffering from mental illness. Now the question arise that who is an expert. Where the matter calls for expert evidence, only a suitably qualified expert can give it. Indeed, the starting point in examining in chief an expert witness is to establish his expertise. But this does not mean that there must be formal qualifications. In R v Silverlock7 a solicitor who had for many years studied handwriting as a hobby held as a handwriting expert. However, it will not be easy to satisfy a judge that a witness is an expert in a field if he lacks formal qualifications. In R v Oakley8, a police officer who had attended a course, passed an exam as an accident investigator and attended more than 400 accidents was entitled to give expert evidence as to the cause of an accident. HSE inspectors should be permitted to give such evidence. In R v Abadom9, D had been convicted for robbery. A prosecution expert witness had given evidence in relation to glass samples based on home office statistics. The Home office statistics was hearsay because the expert has no personal knowledge of analysis on which they were based. Miscarriage of justice or wrongful conviction means that the conviction and sentence of a person for a crime that he or she did not commit. There have been series of high profile cases in recent times, which have led the blame expert witnesses for miscarriages of justice. Nelson J in Armchair Passenger Transport Ltd v Helical Bar Plc10 It has been said that it is ‘the nature and extent of the interest or connection which matters, not the mere fact of the interest or connection’. Apparent bias is not enough to disqualify an expert from being called as a witness. There are series of cases of ‘miscarriages of justice’ where defendants suffer wrongful conviction. The Birmingham six were six men sentenced to life imprisonment in 1975 in UK for the Birmingham pub bombings took place in 1974 after the forensic tests and routine questioning by Birmingham CID, they were charged with murder and conspiracy to cause explosions. In 1991 the Court of Apple declared that their convictions were unsafe and quashed. While the Birmingham Six were arrested for bombings Judith Ward was convicted for the Euston Station, National Defence College and M62 coach bombings and she spent 18 years in prison. She was the making of false confessions due to a mental illness and convicted wrongly. However, the conviction was quashed in 1992. In the 1970, two important cases these are the Guildford Four and the Maguire Seven were two sets of people who were falsely convicted for bombings which carried out by the Provisional Irish Republican Army (IRA). However, in 1990 both groups’ convictions were declared unsafe and reversed. The recent decision of Collins J in Meadow v General Medical Council11, Sir Roy Meadow had given expert evidence in several ‘battered baby’ trials. Following the successful appeals by women such as Sally and Angela, the professional body of Sir Roy Meadow – the General Medical Council- found him guilty of serious professional misconduct and struck him off its register of medical practitioners. The Administrative Court held that expert witnesses ought to have immunity from suit arising out of the evidence given to the court. The effect of this judgment is to impose a primarily hurdle upon disciplinary proceedings. 3. In order to answer this question it is necessary to discuss the burden of proof in civil and criminal cases, Standard of Proof of civil and criminal cases, and relevant case laws. The law recognizes two principle burden these are legal burden and evidential burden. The legal burden or burden of proof is the obligation placed on a party to prove a fact in issue. Whether a party discharged the legal burden is a question to be determined by the tribunal of fact at the end of the trial. The burden of proof in civil cases: In civil cases, at common law, the general rule is that the legal; burden of any fact in issue is borne by the party asserting and not denying: he who asserts must prove not he who denies (Joseph Constantine Steamship line Ltd v Imperial smelting Corporation Ltd12; Re H (Minors) (Sexual Abuse: Standard of proof)13. Accordingly, the claimant usually bears the legal burden (and by necessity an evidential burden) of proving all the elements of his claim. Similarly, the defendant bears the legal (and evidential) burden of proving any defence and/or counter claim against the claimant The burden of proof in criminal cases: The basic rule was laid down by Viscount Sankey LC in Woolmington v DPP14, ‘Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoners guilt’. 15 It would be possible to justify the rule as part of a policy to avoid embarrassing criticisms of the administration of justice by minimising wrongful convictions. These are more likely to be avoided if the burden is fixed in this way then if an accused person has to prove his innocence. It is also possible to justify the rule by appeal to principle. Viscount Sankey said that the rule was subject to exceptions in the case of the defence of insanity and subject also to any statutory exception. But there have been Challenges to the idea that it is ever just to place a legal burden of proof on defendants. Standard of Proof of civil and criminal cases: In criminal cases the standard of proof to which the prosecution must prove its case has been variously described as ‘beyond reasonable doubt’ (Woolmington v DPP16). In Miller v Minister of pensions17, Denning J described the standard of proof in civil cases as follows: If the evidence is such that the tribunal can say; ‘we think it more probable than not,’ the burden is discharged, but, if the probabilities are equal, it is not. There are, however, some exceptional cases where the criminal standard of proof is required for example Contempt of court (Re Bramble vale Ltd18; Dean v Dean19), where a person’s livelihood is a stake (R v Milk Marketing Board, ex p Austin the Times, 21 March 1987), allegations of misconduct amounting to a criminal offence in disciplinary hearings (Re A Solicitor20, R (on the application of s) v Governing Body of YP School21) and where statute requires the criminal standard of proof (Judd v Ministers of Pensions and National Insurance22). Presumption of innocence: Legal burdens on defendants may have to be considered in the light of the European Convention on Human Rights, which is now incorporated into English law Under the Human Rights Act 199823. The ECHR, Article 6(2) provides that every one with a criminal offence shall be presumed innocent until provided guilty according to law. The potential effect of the Human Rights Act 1998 on reverse burdens in criminal cases was first shown in R v Lambert24, the HLs, where it was argued that to interpret s.28 in this way violated the presumption of innocence contained in Art 6(2) of the ECHR. The main question to be decided on the appeal was whether the Human Rights Act 1998, which gave statutory force to the Convention, operated retrospectively. The House of Lords held that it did not. Nevertheless, the Law Lords took the opportunity to discuss the effect of the act on s.28 while all that was said on this point was, therefore, strictly speaking obiter, it is Inconceivable that it would not be followed in future cases25. What was said is, therefore, worth examination. The majority, relying on s 3(1) of the Human Rights Act 1998, held that it was possible to read s 28(2) as imposing only an evidential burden, and that it should be read in this way because to read it as imposing a legal burden would be to violate the Presumption of innocence contained in Art 6(2) of the Convention. The leading authority is Attorney General’s Reference (No 4 of 2002)26, from which the following principle may be distilled. In this case the Court give the guideline that the Defendant has a right to a fair trial, the Presumption of innocence is an important but not an absolute right and so derogations from the principle are permitted. However the ECHR require a balance to be struck between the rights of the individual and wider interests of the community, and there is an obligation on the state to justify any derogation from the Presumption of innocence. For a reverse burden of proof to be acceptable there must be a compelling reason why it is fair and reasonable to deny the accused person the protection normally guaranteed to everyone by the presumption of innocence. In determining whether the imposition of a reverse burden is justified, the courts should have regard to the seriousness of the punishment, which may flow from conviction. Conclusion: From the above discussion PACE allows both the retention and use of the fingerprints, and DNA samples of innocent persons, which is a significant interference with the rights of such individuals under Article 8(1) of the ECHR. So Court need to handle this issue carefully to avoid conflict between PACE 1984 and Article 8. The general rule is that expert opinions of the witnesses are not admissible but practically by Civil Evidence Act 1972, S.3 (1) expert evidence is admissible and in criminal cases expert witnesses may now be called where the accused is alleged to be suffering from mental illness to ensure justice. The general rule is that the duty of the prosecution to prove the prisoners guilt, however, if necessary court can reverse it. List of Cases: R v Buckley (1999) 163 JP 561 R v. Doheny (1996) EWCA Crim 728 R v Bates (2006) EWCA Crim 1395 R v Chief Constable of South Yorkshire ex parte S and Marper [2004] UKHL 39 Marper v the United Kingdom (2007) Application Nos. 30562/04 30566/04 R v Turner, [1975] QB 834 R v Silverlock [1894] QB 766 R v Abadom [1983] 1 WLR 126 Armchair Passenger Transport Ltd v Helical Bar Plc [2003] EWHC 367 The Birmingham six Judith Ward The Guildford Four The Maguire Seven Meadow v General Medical Council [2006] EWHC 146 Joseph Constantine Steamship line Ltd v Imperial smelting Corporation Ltd Woolmington v DPP [1935] AC Miller v Minister of pensions (1947) 2 All ER 372 R v Milk Marketing Board, ex p Austin [the Times, 21 March 1987] Re A Solicitor (1947) 2 All ER 372 R (on the application of s) v Governing Body of YP School [2003] EWCA 1306 Judd v Ministers of Pensions and National Insurance [1966] 2 QB 580 R v Lambert [2001] 3 AII ER 577 List of Acts: Section 9 (1) of Police and Criminal Evidence Act 1984 Section 3(1) of the Human Rights Act 1998 Section 61 of Police and Criminal Evidence Act 1984 Article 8(1) of the European Convention on Human Rights S.3 (1) Civil Evidence Act 1972, Art 6(2) of the European Convention on Human Rights Bibliography: Allen, C. Practical Guide to Evidence, (2004), 3rd edition, Cavendish Publishing, [ISBN: 978-1-859-41899-4] Keane, A., The Modern Law of Evidence, (2005), Oxford University Press, 6th edition, [ISBN: 0406975795]. Munday, R. Evidence, (2005) 3rd edition (Oxford: Oxford University Press, ISBN: 0199285101 Murphy, P. Murphy on Evidence. (2005), 9th edition, Oxford: Oxford University Press, [ISBN: 0199281130]. Roberts, P. and Zuckerman: Criminal Evidence. (Oxford: Oxford University Press, 2004 P. 332) [ISBN: 0198764979] Slapper, G. and D. Kelly, The English Legal System. (London: Routledge-Cavendish, 2006) 8th edition, [ISBN 978-1845680343]. Zander, M. Cases and Materials on the English Legal System, (Cambridge: Cambridge University Press, 2007), 10th edition [ISBN 978-0521675406]. Read More