Prisoners jailed on the strength of a DNA testing technique that is now under review could turn to the appeal courts in a bid to have their convictions quashed, an expert said today.
Police have suspended the testing of “low copy DNA” following the acquittal of Omagh bomb suspect Sean Hoey, with the Association of Chief Police officers (Acpo) saying that forces were already operating an “interim suspension” of the cutting-edge technique.
The Crown Prosecution Service in England and Wales is to review “live” cases, where Low Copy Number (LCN) DNA testing is involved.
A similar review is being made in the North at the request of PSNI Chief Constable Hugh Orde.
However, the Attorney General’s Office said there are no current plans to review past cases
A spokesman said: “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.”
But one criminal law specialist said today that rather than the CPS undertaking a widespread review of previous cases, it was much more likely that individuals would bring cases forward.
Robert Brown of law firm Corker Binning said: “There are lots of cases where LCN DNA could have been part of the evidence.
“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.
“It is likely to be a fluid situation.”
The review is likely to include thousands of forthcoming court cases.
It is understood that the Rachel Nickell murder case will not be among them.
Robert Napper, 41, was charged last month with the murder of Miss Nickell on Wimbledon Common in 1992 and is awaiting trial.
Police sources said that this high-profile case used a “different DNA technique to that which is subject to review”.
The relatively new LCN DNA testing system – which enables the analysis of a small number of cells – was used on the timers for bombs involved in Real IRA attacks and allegedly linked them to Omagh accused Sean Hoey.
However, Mr Justice Weir, the judge in the case, decided it was not yet at a sufficiently scientific level to be considered evidence.
Orde said the review did not mean LCN DNA evidence was being dismissed.
“It is a vital ingredient of cases in the future which will bring very guilty people to justice,” he said.
Tony Lake, Chief Constable of Lincolnshire Police and Acpo lead on forensics, said: “In England and Wales DNA evidence has to be corroborated by other evidence. 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 (LCN) DNA testing service offered by the Forensic Science Service (FSS) for future investigations.”
The FSS said LCN DNA had been used about 21,000 times, generating profiles from items including matchsticks, weapon handles and clothing.
Lawyers for Mr Hoey, aged 38, an electrician from south Armagh, said he may launch a civil lawsuit against the prosecuting authorities on the grounds of malicious prosecution.
He spent more than four years in custody before being cleared.
Solicitor Kevin Winters said claims made by English lawyer Victor Barker, whose 12-year-old son James was one of 29 people who died in the 1998 bombing, may also be actionable.
“Sean Hoey refutes completely the allegations made by Victor Barker when he persists in blaming him for Omagh,” said Mr Winters.
“Mr Hoey is an innocent man and the court’s judgment is an emphatic endorsement of his innocence.
“We will not hesitate to use the courts again to protect his name.”
Mr Barker said he had consulted with his lawyers in light of Mr Winters’ statement.
“I believe the comments I made were a fair and accurate reflection of events reported in the court,” he said.
He added: “I also made it clear that I, like everyone else, must abide by the decision of the court.”
Orde, speaking at PSNI headquarters in Belfast, admitted he believed it highly unlikely there would ever now be a successful prosecution for the Omagh bombing.
He said: “In my judgment, the only way we will see a successful prosecution in a criminal court is if people stand up and say ’This was committed by X and I will tell you how it happened’.
“If they do that they will have my total support and total protection.”
Orde added he did not regret launching the case.