Firearms Residue Testing (Criminal Cases)

Damian Collins Excerpts

Tuesday 20th December 2011 Westminster Hall

[Damian Collins (Folkestone and Hythe) (Con)]

It is a pleasure to serve under your chairmanship, Mr Hollobone. I applied for this debate because a constituent has brought to my attention a case in which forensic evidence that was presented to achieve his conviction for murder has been proven to be unreliable. That constituent is Mr Paul Cleeland, who was convicted in 1972 of the murder of Terence Clarke outside his home in Stevenage. I want to address some specific issues about Mr Cleeland’s case, but I believe that it is an exemplar of problems with evidence presented in such criminal cases in the 1970s.

The matter has been raised twice in the House: in 1982 and 1988. It was pursued with persistence by Baroness Williams when she was a Member of Parliament, Mr Bowen Wells when he was the MP for Hertford and Stevenage, and Mr John Hughes when he was the MP for Coventry, North East. It is a matter of great regret that the issue remains unresolved to my constituent’s satisfaction after such a long time. Mr Cleeland is in the Public Gallery to witness the debate, a privilege he was unable to exercise in the previous debates.

When the case was first debated, it was reported that a

“prominent Queen's Counsel”

at the time had stated:

“There are a quite unusual number of blemishes in connection with the police evidence—in particular the discrepancies”

with ballistic evidence.

“Dr Julius Grant, Secretary of the Society of Forensic Medicine, calls the ballistic evidence ‘disturbing’ and said that it would appear to provide Mr. Cleeland with ample reasons for wanting his case re-opened and on purely scientific grounds I cannot do other than support them.—[Official Report, 29 April 1982; Vol. 22, c. 1062.]

There is a wealth of discrepancies in the evidence against my constituent, which I will not rehearse here because the purpose of this debate is to focus on the problems that his case brings to light with the testing for firearms residue. However, I want to recount briefly some discrepancies in the ballistics evidence, because they have a direct bearing on the reliability of the forensic evidence of firearms residue.

The firearm submitted by the police as the murder weapon was an antique 12-bore Gye and Moncrieff shotgun. The police claimed that it was found in the vicinity of the murder by children, and that it contained two discharged shells with a box of unused shells lying nearby. The police attested through witnesses that the gun was sold to Mr Cleeland, but that was later refuted, and it was proven that the gun had been given to the victim. Mrs Clarke, Terry Clarke’s widow, had known Paul Cleeland for 12 years before the murder, but was unable to identify him as the murderer, despite being a witness to the crime. Mrs Clarke and neighbours, who were all witnesses to the murder, claimed that the assailant discharged a gun twice at a range of not more than 6 feet—point blank range—first into Mr Clarke’s back, and secondly into his chest.

There are discrepancies between ballistics reports. Mr J. McCafferty, a principal scientific officer in the Metropolitan police forensic science laboratory on whose evidence the prosecution relied, claimed that the firearm would have been discharged at a minimum of 18 feet from the victim. However—I want to stress three key points—Mr Rothery, another expert, said that if the shotgun had been fired at a range of 18 feet, cartridge wadding would have remained affixed to the victim’s jacket. Mr Rothery and Mr Jennings, another ballistics expert, said that the firearm that the police claimed was the murder weapon would have to have been discharged 36 to 40 feet away to achieve the distribution on the victim. Dr Rufus Crompton, then consultant pathologist at St George’s hospital, London, provided corroboration of the evidence of Rothery and Jennings when he concluded from medical evidence that the range was about 36 feet.

If those witnesses were correct in their account of the assailant’s distance to the victim, or if Mr McCafferty’s assessment of that distance was correct, the necessary conclusion from the evidence provided by Mr Rothery, Mr Jennings and Mr Crompton is that the Gye and Moncrieff shotgun could not have been the murder weapon. It would instead have been reasonable to argue that using a shotgun at point-blank range to achieve as wide a distribution of pellets as that achieved by firing at a range of 40 feet, would have required the use of a sawn-off, 12-bore shotgun such as the one later found at a weir in nearby Harlow.

Those points are important because the doubts about the ballistics evidence submitted by Mr McCafferty underline the unreliability of his forensic evidence. At the time of Mr Cleeland’s trial, Mr McCafferty was a principal scientific officer in the Metropolitan police forensic science laboratory. He had no formal academic qualifications, but he had been in charge of the firearms section of the forensic science laboratory since January 1964. At the time of the trial, he had 25 years of ballistic experience as an examiner of firearms and ammunition.

Given his long-standing position at the forensic science laboratory, it is perhaps unsurprising that Mr McCafferty was frequently relied on in trials as an expert forensics and ballistics witness for the prosecution. That included the trial of James Hanratty, who was hanged in 1962 for the murder of a Government scientist, over which there has been great and long-lasting doubt. Were the competence of Mr McCafferty as a forensics and ballistics expert to be brought into question, so too would the safety of the convictions of those in whose trials he gave evidence. That is why the results of the forensic tests used to convict my constituent have implications far wider than the case under discussion today.

During the original investigation, Mr McCafferty carried out a sodium rhodizonate test on Mr Cleeland’s clothes. The results of that test were relied on by the prosecution as evidence that Mr Cleeland had discharged a firearm. It has since become apparent, however, that the sodium rhodizonate test is suitable only as a preliminary, screening test. It is not capable of specifically detecting firearm discharge residues, but only the presence of lead or lead compounds. Despite the fact that the sodium rhodizonate test was not suitable for establishing the presence of firearm discharge residue, Mr McCafferty clearly considered that to be the purpose of such a test, as is clear from statements that he made during the 1977 investigation into allegations of perjury made by my constituent:

“On the 17th November I received from Mr Chaperlin in the laboratory exhibits…which were all items of Mr Cleeland’s clothing for the examination principally for firearms residue…On the completion of my examination of all the items received including the items of Mr Cleeland’s clothing I made a further statement which covered my chemical test for the presence of possible firearms residue.”

McCafferty’s evidence clearly impressed the judge at the time, who said when summing up the case that the clothes had been examined for

“traces of this lead residue”—

—a reference to the powder residue from the discharge of a firearm. The test carried out was the sodium rhodizonate test that we now know is unreliable for establishing the presence of firearm discharge residue.

In the early 1970s, forensic science was not as developed as it is today; the expertise and tests available were more limited, even if we could reasonably have expected the scientific rigour to have been the same. If we ask ourselves, however, whether other tests available at the time were suitable for establishing the presence of firearm discharge residue, the answer is yes. Other chemical tests would have supplemented the sodium rhodizonate test, and they were available to the prosecution at the time of the original trial. In particular, the atomic absorption spectroscopy and neutron activation analysis were available, and those sophisticated modern analytical methods were adopted to improve the sensitivity of the testing process. Neither test was used on Mr Cleeland’s clothes, however, even though, according to an expert witness who has gone unchallenged throughout my constituent’s appeals, they

“could have helped in ascertaining whether the elements on the clothing of Mr Cleeland came from the discharge of a firearm or were present as a result of completely innocuous activity.”

The fact that Mr McCafferty was seemingly unaware of the existence of those tests at the time of the original investigation casts doubt either on his expertise or his integrity. Some reassurance could perhaps be gained if it could be established that in his investigation into the murder of Mr Clarke, Mr McCafferty was incompetent but honestly so. Such a conclusion would perhaps cast less doubt on the evidence that he has given in other trials, as it would rely on him being unaware of the availability of those more specific tests.

Was Mr McCafferty aware of those tests? In 2006, my constituent came into contact with Professor Marco Morin, a ballistics expert who was involved in the high-profile case of Barry George, the man incorrectly convicted of the murder of television presenter Jill Dando. The prosecution in that case relied heavily on evidence of what it claimed was firearm discharge residue on Barry George’s clothing. Professor Morin referred my constituent to the training manual prepared by the Metropolitan police forensic science laboratory, dated November 1980. That manual explicitly recognised that the sodium rhodizonate test, carried out by Mr McCafferty, was unreliable for the purposes of establishing the presence of firearm discharge residue, and it refers to the test as:

“Simple. Not specific. Useful for lead distribution on a target eg bullet wound.”

It later confirms that the presence of lead and barium particles—those detected by the sodium rhodizonate test—is “not reliable” as an indicator of firearm discharge residue.

It was known, therefore, during Mr Cleeland’s many appeals that the forensic test presented to the court as evidence of firearm discharge residue was not really evidence at all. However, that manual was prepared in 1980 and Mr Clarke was murdered in 1972. For how long was the Metropolitan police forensic science laboratory aware that the sodium rhodizonate test was not a suitable test for the detection of firearm discharge residue?

During my inquiries into my constituent’s case, and following a written parliamentary question to the Home Office, I was kindly assisted by Martyn Ismail of the Forensic Science Service, with which the Metropolitan police forensic science laboratory was merged in 1996. Mr Ismail provided me with three papers from the archives relating to the sodium rhodizonate test, dated 1943, 1959 and 1965. All those papers were useful, but especially that by G. Price in the 1965 edition of the Journal of Forensic Sciences, which describes the use of the sodium rhodizonate test—which we now know to be inappropriate—for the identification of firearm discharge residue on hands. The paper’s penultimate paragraph states:

“In the case of firearms where the breech remains closed after firing, such as shot guns and rifles, it has not been possible to detect traces of lead by this method.”

In other words, lead residue is released when the breech is opened following discharge of a weapon.

At the beginning of my speech, I said that the firearm submitted by the police as the murder weapon was an antique 12-bore Gye and Moncrieff shotgun, which police claimed was found in the vicinity of the murder, and which contained two discharged shells. Two shots were discharged in the murder; two discharged shells were found in the breech of the double-barrelled shotgun. We know that the breech of the shotgun had not been opened, because if it had been the shotgun would have discharged the shells. Therefore, in this murder case, where the shotgun’s breech was not opened to eject the shells, the Metropolitan police forensic science laboratory has known since 1965—some seven years before the murder of Mr Clarke—that it was not possible to detect “traces of lead” with a sodium rhodizonate test.

We know that more specific tests were available to the Metropolitan police forensic science laboratory at the time of the investigation, and that Mr McCafferty should have been aware of them. Mr McCafferty should also have been aware that the sodium rhodizonate test was unsuitable for the detection of firearm discharge residue, and that given the circumstances of the murder, it had

“not been possible to detect traces of lead”

using the sodium rhodizonate test.

It seems to me obvious that Mr McCafferty was an unreliable expert witness, and the very grave problems with his evidence in my constituent’s trial must surely cast doubt on every other trial in which he has given evidence. It may also cast doubt on the trials of others whose convictions resulted from the evidence of the Metropolitan police forensic science laboratory where the presence of firearm discharge residue was alleged.

We are dealing with a case that took place in the 1970s, and my concern when looking at the evidence is that it sounds almost like something from “Life on Mars”, where the crime has been fitted to the person but not necessarily to the evidence available to the police.

Reflecting on those grave matters, is the Minister prepared to consider a review into cases where the sodium rhodizonate test was used to establish the presence of firearm discharge residue? With particular reference to Mr Cleeland’s case, I ask whether an independent review of all the papers relating to his case in the Home Office and with the police could take place. The Boothby report was commissioned in the 1970s to examine the case in detail and also the evidence prepared by Mr McCafferty. Conclusions of that report have been referred to in previous debates in the House. Mr Cleeland has never seen a full copy of the report. Could the Boothby report be published in full, including any supporting documentation and notes used in its preparation? If it is not possible to publish the report in full, could it be given to an independent expert outside the Home Office to examine in detail?

My constituent feels very strongly that previous Ministers may have inadvertently given misleading information to the House, based on guidance that they gave about what was contained in the Boothby report, which asserted that the evidence presented by Mr McCafferty was correct and that the conviction was sound. I would like that to be reviewed by an independent person, if not Mr Cleeland himself and his lawyers. If it is the case that assertions based on the Boothby report that were made to the House were not valid, a formal note should be placed on the record to confirm that, but obviously that requires an independent review of those papers and documents.

My constituent has raised a number of very important and fundamental questions about his case and the nature of his conviction. This is not a court of law—it is not a court of appeal—but I believe that the Home Office, if it is in possession of the Boothby report and any supporting notes and documents, should seek to make those available for independent scrutiny. That would certainly help my constituent in preparing for his case and shine some light on the way in which forensic evidence of this kind was presented in court cases in the 1970s.

[The Parliamentary Under-Secretary of State for the Home Department (Lynne Featherstone)]

It is a pleasure to stand before you this afternoon, Mr Hollobone. In case I forget, I wish you a merry Christmas now.

Let me turn to the serious nature of the case in front of us. First, I congratulate my hon. Friend the Member for Folkestone and Hythe (Damian Collins) on securing the debate. It is important that Members of Parliament can raise in this way matters that are of concern to their constituents. My hon. Friend has set out the grounds on which Mr Paul Cleeland disputes his conviction for murder. I listened very carefully to what he had to say, because allegations of miscarriages of justice are very serious matters. My hon. Friend went over the ground in this case. The conviction has been the subject of much scrutiny and debate. It is worth reflecting on the fact that, to my knowledge, this is the third time that the matter has been debated in Parliament. As my hon. Friend said, the previous debates took place in 1982 and 1988. He referred to the many right hon. and hon. Members who over the years have tried to raise these issues.

However, as my hon. Friend the Member for Folkestone and Hythe said, it is of course the criminal justice system, not Members of Parliament or Ministers, that decides on guilt or innocence. Terence Clarke was murdered in 1972, and Mr Cleeland was convicted of his murder by a jury the following year. The Criminal Cases Review Commission has been engaged with this matter over time since the first application to it in 1977. In 2000, the case was referred to the Court of Appeal, which upheld the murder conviction in 2002.

Of course, I listened carefully to the arguments about discrepancies in the ballistic evidence. My hon. Friend makes the case very well. He raised the issue of forensics and the reliability or otherwise both of the sodium rhodizonate test and of Mr McCafferty himself. Notwithstanding all that has happened with regard to this case, as set out in section 13 of the Criminal Appeal Act 1995, the Criminal Cases Review Commission can always refer a case back to court on the basis of information or an argument that has not previously been raised—at trial, on appeal or with the Home Office—and which creates a “real possibility” that an appeal would succeed. I assume—I hope that my hon. Friend will correct me if I am wrong—that many if not all those points were made in the appeals, and those issues have been raised previously.

[Damian Collins]

As I said in my speech, the Metropolitan police manual for 1980 has come to light only recently and subsequent to some of the appeals; and, indeed, the evidence that I have obtained via the Home Office, which cites academic papers dating back to the 1960s, has not previously been presented and, I think, certainly undermines the evidence presented by Mr McCafferty.

[Lynne Featherstone]

On the case itself, I would then make this suggestion—I am not able to give legal advice; I am not a lawyer in any sense. I would have thought that if there is new evidence, the Criminal Cases Review Commission is the body that should seek another judicial stage, if that were to be sought. In that sense, this is not, as we have said, a matter for Members of Parliament or, indeed, Ministers.

In terms of the alleged miscarriage of justice, the use of a forensic test in the case is questioned. That goes to the heart of my hon. Friend’s request for a review by the Home Office. Forensic science is an essential tool in the armoury of criminal justice. Forensic service suppliers in England and Wales provide some of the quickest turnaround times and highest-quality forensic science in the world. The Government have recently reappointed Andrew Rennison as the forensic science regulator to provide strong, independent regulation of quality standards, and it is right that the Government set the direction for and expectations of the quality standards to be used in the criminal justice system.

I want to be clear in that context that, as a test for the presence of lead, the sodium rhodizonate test is not fundamentally flawed. It is the case, however, that forensic science techniques are available today that would provide considerably more information than those in use in the 1970s. That does not mean that convictions from that time are unsafe or that a court has not properly relied on the scientific evidence available to it at the time.

[Damian Collins]

I am grateful to my hon. Friend for giving way again; she is being very generous. What I said was not that the test is unsound for detecting the presence of lead, but that it is not a safe test for detecting firearms residue.

[Lynne Featherstone]

Indeed, but I notice that in terms of the specific case, the forensic test was one of the 20 grounds of appeal considered by the Court of Appeal in 2002, when Mr Cleeland’s conviction was upheld. The understanding was that electron microscopic testing had not then been developed within the Metropolitan police laboratory to be in use. Also, whether or not that was correct, there was no evidence as to what such testing might or might not have demonstrated at the time or with the benefit of hindsight.

[Damian Collins]

My concern is that there was knowledge of the limitations of the test, yet evidence was presented from it in a court that suggested that there was no ambiguity at all and that it could be safely relied upon, whereas academic papers that were in the possession of the Metropolitan police cast doubt on that.

[Lynne Featherstone]

My hon. Friend is saying that since the relevant time, new evidence has come to light that casts doubt on all this, and has requested a review. What I can offer is this. I can ask the forensic science regulator, Andrew Rennison, to consider this type of evidence. I cannot give an answer on whether there will be a review, but I will ask his opinion of whether there should be a review.

In terms of the Boothby report, my hon. Friend has requested that a report on the allegations of police misconduct in connection with the case made by Mr Cleeland be made available. The Court of Appeal ordered the disclosure of that report in 2001 to seek to allay concerns raised by the appellant at the time about that. We therefore understand that his solicitors from that time may have a copy of the report.

[Damian Collins]

Mr Cleeland has confirmed to me that they do not have possession of the report. They never have had possession of it, despite what was said at the Court of Appeal. Certainly the report is not in his hands at all. Therefore if the Minister could deliver that report—make it available to him—we would be very grateful.

[Lynne Featherstone]

It was brought to my officials’ attention yesterday that the issue would be raised. The whereabouts of the report was discussed with the Hertfordshire police. We understand from them that Mr Cleeland’s solicitor has requested the report and that they are trying to locate a copy so that they can consider whether it would be appropriate to disclose it. The Home Office will also carry out the same process to see whether we can find the report, but I cannot guarantee that it was or will be found.

My hon. Friend has made an excellent case today in laying out why he believes that there should be a reconsideration, presumably both of the case and in looking at forensics and residues in that context. I cannot give answers on that or on the actual case; as I said, it is for the criminal review board to decide whether there is enough new evidence to take the case back to any sort of judicial process.

I thank my hon. Friend. I have sought to be as helpful as I can possibly be.

[Damian Collins]

I appreciate that the Minister is drawing to her conclusion. Would it be possible for her to write to me, following the debate, on the points that she has raised about the review of the test, the location of the Boothby report and whether that can be made available, so that I am able to share that information in writing with my constituent?

[Lynne Featherstone]

Hansard will do it for me, but I am happy to write to my hon. Friend on those particular points that he has raised.

[Damian Collins]

rose—

[Lynne Featherstone]

Am I misunderstanding my hon. Friend?

[Damian Collins]

The Minister said that both Hertfordshire police and the Home Office will try to locate a copy of the Boothby report and see if that can be made available to Mr Cleeland. I would appreciate it if the Minister could write to me following the search for the report to confirm whether it has been found and what has happened to it. If it is decided that it would not be appropriate, despite what the Court of Appeal said, to give that document to Mr Cleeland, will an independent expert be able to scrutinise it on behalf of Mr Cleeland and form an opinion about its contents?

[Lynne Featherstone]

I am more than happy to write to my hon. Friend following our search; I do not know about Hertfordshire police’s search. We will do whatever we can. I cannot go ahead of that, before we understand whether we have it, but I am happy to write to my hon. Friend in that regard. I congratulate him again on securing this debate and on bringing such an important issue to Parliament.