Bates, R. v

Partial-profile DNA evidence is not inadmissible merely because unreported alleles might, if present, exclude the accused and their exculpatory effect cannot be statistically quantified. The evidence may be admitted if it is relevant, the jury receive a sufficient explanation of its limitations, and they can evaluate it fairly with the other evidence.

A jury direction in a joint trial must reflect the case put by the prosecution and fairness to each defendant. Where the sole case against an alleged instigator is that he engaged the alleged killer, it may be necessary to direct that the jury cannot consider convicting the instigator unless sure that the alleged killer committed the offence.

After a retrial at the Central Criminal Court before Fulford J, Richard Bates was convicted of the murder of Marilyn Garside and sentenced to life imprisonment with a minimum term of 20 years. The prosecution alleged that James Garside, the victim’s estranged husband, had hired Bates to kill her.

The prosecution relied partly on mixed partial DNA profiles from material near the scene. Their statistical match probabilities could not quantify the possibility that unreported alleles in voids might have excluded Bates. The judge admitted the evidence with warnings about those limitations.

Bates also challenged the direction that the jury could consider the case against Garside only if they were sure that Bates was the killer. The same issue had arisen in the first appeal, when the earlier convictions were quashed and a retrial ordered: [2004] EWCA (Crim) 1751.

Decision

1. The court dismissed the appeal on the DNA ground. It refused leave to appeal on the jury-direction ground.

2. Partial-profile DNA evidence was relevant because the reported alleles and resulting match probability showed the proportion of the population sharing those characteristics. A possible unreported allele that might exclude the accused did not alter that fact. It did, however, require the jury to understand the evidence’s limitations.

3. R v Doheny & Adams [1997] 1 Cr. App. R. 369 did not require exclusion unless every conceivable possibility could be assigned a statistical value. Its guidance did not draw a rule that partial profiles were inadmissible. Partial-profile evidence may be admitted where the jury receive a sufficient explanation to evaluate it. Its significance may depend materially on other evidence linking the accused to the offence.

4. The trial judge had given a clear and fair summing-up, including the potential significance of the voids. The jury could properly assess the evidence in its evidential context. The conviction was therefore not unsafe.

5. The direction concerning Garside was also correct. The prosecution’s only case against him was that he had hired Bates to commit the murder. It would have been unfair to leave an alternative basis on which Garside might be convicted without the jury being sure that Bates was the killer. Although a secondary party may in law sometimes be convicted despite the principal’s acquittal, that proposition did not govern this trial. A differing direction would also have confused the jury.

• Court of Appeal (Criminal Division): The present court dismissed the appeal concerning DNA evidence and refused leave to appeal concerning the direction about the co-accused: [2006] EWCA Crim 1395.

• Central Criminal Court: At the retrial before Fulford J, Bates and Garside were convicted of murder. Bates received life imprisonment with a minimum term of 20 years.

• Court of Appeal (Criminal Division): The earlier conviction was quashed because counsel had misunderstood the effect of the judge’s ruling and Bates had not received the final speech to which he was entitled. A retrial was ordered: [2004] EWCA (Crim) 1751.

• Central Criminal Court: Bates and Garside were first convicted of murder in June 2003.