24 January 2008 Edition
Dodgy science, improper procedures and lies
Omagh trial collapses
BY LAURA FRIEL
SINN FÉIN has called for a comprehensive investigation by the Policing Board after serious police malpractice was exposed by presiding High Court Judge Weir during the collapse of the Omagh bombing trial in Belfast last month.
Delivering his 24-page verdict in a non-jury Diplock court, Judge Weir cited dodgy forensic evidence, sloppy procedures and police lies as contributing factors in the collapse of the prosecution case against South Armagh electrician Seán Hoey.
Judge Weir criticised the way evidence had been gathered and handled by investigating officers. He accused the police of adopting a “seemingly thoughtless and slap-dash approach” with vital evidence “widely and routinely handled with cavalier disregard for their integrity”.
Weir was scathing in his evaluation of DNA evidence presented by the prosecution. The DNA evidence relied upon the collection, preservation and movement of various exhibits from a number of locations by various agencies. The judge accepted defence evidence of serious malpractice in the recovery, storage and handling of forensic material.
The prosecution case also relied upon a controversial new forensic technique which involves the reconstruction of a DNA profile from minuscule and incomplete samples. The technique, known as Low Count Number DNA profiling (LCN), has been developed in Britain but has failed to gain international acceptance within the wider scientific community as a viable method.
Only two other countries outside Britain, New Zealand and the Netherlands, make use of this method. Clearly its efficacy as reliable forensic evidence remains in serious doubt.
LCN is a magnified form of DNA testing that critics argue cannot be relied upon because results are distorted by amplification. Doubts about the use of LCN profiling emerged during the Omagh trial after it was revealed that the technique had initially identified a 14-year-old English schoolboy as the bomb-maker who had built an unexploded device found in Lisburn in 1998.
The method involves DNA profiling, engineered from tiny molecules, as small as a millionth of a grain of salt. LCN profiling is not only subject to problems inherent in normal ‘gold standard’ DNA profiling techniques. Most significantly, samples cannot be independently verified because the technique destroys the material from which the profile is generated. And the new technique is also particularly susceptible to contamination.
The judge accepted defence arguments that, because of the minuscule nature of the samples used in LCN DNA testing, it relied on “especially stringent measures” to avoid contamination but such measures had not been taken by the police investigation team. Weir also accepted defence evidence highlighting numerous problems in recovery, packing, storing and transmission of items subsequently used as forensic evidence.
The judge recognised that the failure of the Omagh bombing investigators to ensure the integrity of evidence – from its recovery through to its storage and evaluation – rendered any attempt to consider Low Copy Number profiling as viable evidence null and void.
Earlier, a British Army witness admitted that some evidence may have been “forensically altered”. Questioned about an attempted bombing months before Omagh of which Hoey was also accused, the court was told that the black tape, seen in pictures of the device when it was examined at the forensic laboratory, was not present when the device was first recovered from the scene.
Another witness admitted that a label on an item appeared to have been altered. The court also heard that a detonator being used as evidence had been discovered by a forensic scientist five years after it was thought to have been destroyed.
Questions relating to items gathered for forensic analysis further undermined results subsequently obtained. As for the LCN DNA evidence, Judge Weir said he was “not in the least satisfied” and he found that “the DNA evidence cannot satisfy me either beyond reasonable doubt or to any acceptable standard”.
Weir expressed concern at the “wide variance on expert opinions” relating to the LCN technique “not only between the prosecution and defence but also between the two experts called for the prosecution”.
The judge cited prevailing international uncertainty about the validity of LCN DNA testing. Weir criticised forensic scientist Dr Whitaker’s unwillingness to accept that the continued absence of international acceptance of the technique had any bearing on the probative weight the judge could put on the evidence.
“I am not satisfied that the publishing of two journal articles describing a process invented by the authors can be regarded without more as having “validated that process for the purpose of it being confidently used for evidential purposes,” said Weir.
Following the Omagh verdict, the use of Low Copy Number profiling was immediately suspended and the British prosecution service announced it would be reviewing live prosecutions in England and Wales. PSNI Chief Constable Hugh Orde also instigated an immediate review of cases using the technique in the North of Ireland.
As early as 2006, the British Association of Chief Police Officers wrote to chief constables in England and Wales, raising serious doubts about the accuracy of test results and advising them that it was ordering the re-testing of more than 2,000 cases involving LCN.
Meanwhile, the Omagh trial descended into farce as senior police officers admitted lying and blamed their superiors. The defence had exposed the evidence of two police officers involved in the collection of evidence as unreliable to such a point that the judge admitted he was in the position of not knowing what to believe from their evidence, if anything. Judge Weir said:
“The effect of this, as I find deliberate and calculated deception in which others concerned in the investigation and preparation of this case for trial beyond these two witnesses may also have played a part, is to make it impossible for me to accept any of the evidence of either witness since I have no means of knowing whether they may have told lies about other aspects of the case that were not capable of being exposed as such.”
Detective Chief Inspector Philip Marshall and Scenes of Crime Officer Constable Fiona Cooper claimed superiors had encouraged them to “beef up” their witness statements. Marshall admitted asking Cooper to change witness statements relating to the discovery of a mortar at Altmore Forest, near Dungannon.
Cooper confirmed that Marshall had asked her to add details to her original statement about which she had no memory or notes. The officer told the court that a second witness statement attributed to her was false because she was in Zambia at the time it was allegedly written.
Marshall said he had been asked to “beef up” Cooper’s statement by an unnamed senior officer from the Omagh investigation. The court was told that both officers’ original statements were “missing”. Despite the fact that the matter is now the subject of a perjury investigation by the Police Ombudsman, PSNI Chief Hugh Orde has refused to suspend the officers.
Concluding his 24 page verdict, presiding Judge Weir attributed the collapse of the prosecution’s case to police officers’ “lies” and “flawed forensic evidence” and a “slap-dash” approach to protecting evidence.
Speaking afterwards, families of the victims singled out Sir Ronnie Flanagan, RUC Chief Constable at the time of the bombing, for criticism, raising serious concerns about the police investigation from the outset.
Flanagan rejected criticism by an investigation by the Police Ombudsman, declaring he would “commit suicide” if he was found wanting. Flanagan, a former head of Special Branch, was subsequently promoted and is currently head of Britain’s Inspectorate of Constabulary, the body with responsibility for examining and improving the efficiency of police forces.
Victor Barker, whose 12-year-old son James died in the bombing, accused Ronnie Flanagan of “appalling inefficiency” in investigating the bombing. “He said he would fall on his sword if anything was wrong with this investigation. I will give him the sword,” Barker said.
Michael Gallagher, who lost his only son Aidan in the bombing, raised the issue of collusion.
“The security forces on both sides of the border had been warned that Omagh could be attacked. The police on both sides of the border knew the identity of the bombers within hours. Every member of that gang was identified by the RUC within hours of Omagh. For some reason the investigation went nowhere.”
There is overwhelming evidence that the security forces on both sides of the border deliberately withheld vital intelligence, said Gallagher.
“The RUC had Kevin Fulton working as an agent, the FBI had David Rupert, and Garda Sergeant John White has already confirmed that the Irish authorities had informers within the gang as well.
“At every level, all the key intelligence agencies knew who was responsible for Omagh but did nothing. In Omagh they had prior warnings, they knew the identity of the bombers within hours but they never brought anyone to justice. People have a right to know why that is.”
Sinn Féin rejects Orde’s response
AFTER the collapse of the Seán Hoey/Omagh trial, Sinn Féin policing spokesperson and South Belfast MLA Alex Maskey said that Sinn Féin cannot accept PSNI Chief Constable Hugh Orde’s response to the judgement.
“Following the collapse of the Seán Hoey trial and the damning indictment of the prosecution case by Justice Weir, who severely criticised police witnesses, Sinn Féin sought an urgent meeting of the Policing Board and a formal response from the Chief Constable.
“Hugh Orde and two colleagues gave a presentation to the Board. In my view it was little more than a re-run of the trial prosecution case. The Chief Constable did not accept any of Justice Weir’s criticisms and argued that he would have no hesitation in putting the same case based on the same evidence forward again.
“While Orde acknowledged that Justice Weir raised serious issues about the two named officers, Cooper and Marshall, he said that he would await the outcome of the Police Ombudsman’s Report. On this basis I advised the Chief Constable that we could not accept his response to the trial judgement.
“Sinn Féin proposed that the Board carry out a complete review of the Omagh investigation from start to finish, including a review of all the reports which flowed from it. We also need the Ombudsman’s report in respect of the named officers and any others who may have been involved in the falsifying of court statements. The Board has also agreed to ask the judge to elaborate on his comment that others may have been involved in the statements episode.
“Fundamental questions were raised during the trial and by the judgement that must be addressed by the PSNI and the Forensic Science Service.
“For example, I understand that during the trial that DCI Marshall named up to four police officers who may have ‘encouraged’ him to change his statement and this information should be provided to Policing Board. Ms Cooper also told the court that she could not have changed her statement as she had been in Zambia at the time in question.
“Sinn Féin is not just interested in the two named officers because it is our belief that more senior officers were involved. No matter what rank of officer was involved in wrongdoing, there can be no place for them in the PSNI.
“Hugh Orde’s response to date has been totally unacceptable, particularly the refusal to acknowledge the seriousness of the issues raised during the trial and by the judgement in relation to PSNI officers ‘beefing up’ statements and evidence.
“The Board has as yet to agree the precise terms of the review but I am satisfied for now that it will appoint an external expert to conduct a full review of the investigation. Sinn Féin will insist that this includes the original December 2001 Ombudsman’s report and the Board’s February 2002 response to it; the Blakey, Crompton, Stevens 3 and HMIC reports; the trial judgement, the next Ombudsman’s report and any further comments on his judgement from Justice Weir.
“The board will then establish how the various recommendations made in the reports have been dealt with and establish what wrong-doing has been carried out by police officers in order to ensure appropriate action is taken against them, including possible prosecution.
“Sinn Féin is committed to the delivery of our mandate on policing by working with the PSNI and has been involved in a substantive engagement with the PSNI for most of last year. The clear and critical terms of our engagement are to both deliver an effective police service and to hold the police to account.
“The issues raised by the role of PSNI officers in this case go to the heart of attempts to build a police service and justice system that is capable of delivering justice. When those who are charged with upholding the law break or bend the law, justice is the first casualty.”
An Phoblacht Magazine
AN PHOBLACHT MAGAZINE:
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