Hookway & Anor v R [2011] EWCA Crim 1989

Case No 201004917 B3 & 201005016 B3[2011] EWCA Crim 1989
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM THE CROWN COURT AT LEEDS
HIS HONOUR JUDGE MAGILL
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/08/2011
Before
LORD JUSTICE STANLEY BURNTONMR JUSTICE COOKEMR JUSTICE HOLROYDE
Between
Gavin NoakesAppellantsThe QueenRespondent
Graham Campbell (instructed by Kristina Harrison Solicitors) for Steven HookwayMark Rhind (instructed by Kristina Harrison Solicitors) for Gavin NoakesPaul Reid (instructed by the CPS) for RespondentHearing Hearing date : 28 July 2011
JudgmentLord Justice Stanley Burnton :Introduction
[1]On 16th August 2010 in the Crown Court at Leeds before His Honour Judge Magill and a jury Steven Hookwaywas convicted of robbery(on count 2 of the indictment)and sentenced to 14 years’ imprisonment. An order was made under s. 240 of the Criminal Justice Act that 179 days spent on remand were to count. He was acquitted on count 1, which charged a similar robbery. Gavin Noakes was also convicted of the same robbery. On 2September 2010 in the Crown Court at Manchester before His Honour Judge Goldstone QC he was sentenced for that robbery and other offences to imprisonment for public protection with a minimum term of 8 years 6 months less time served.[2]On 28 July 2011 we heard the appeals of Hookway and Noakes against their conviction in the Crown Court at Leeds, brought with leave of the single Judge. Having considered the submissions of counsel, we dismissed their appeals, and stated that we would give our reasons for doing so in writing. We now do so.

The Facts

[3]In July 2007 a violent robbery was carried out at Tesco’s Supermarket in Middlesbrough. The target of the robbery was the cash in cassettes being brought to the store by two Securicor staff to refill the ATM at the store.[4]John Tetlowwas one of the Securicor men. He gave evidence that on 9th July 2007 he started his shift at. 5.50 a.m. and left the depot at 7.10. He was with Clive Finlason. They made their way to the Tesco store. As Finlason was on his way into the shop with the final cash cassette a man suddenly approached him. He was holding a silver coloured claw hammer which he held above his head. He was wearing a ski mask but Tetlow could tell that he was a white-skinned male. He was about 5 feet 8 inches to 5feet 9 inches and of chunky build. Finlason was knocked to the ground where he remained, curled up in the foetal position. Tetlow pressed the alarm and then saw what he thought was a VW Polo car with a blackened window pull up. At the same time three men ran out of the store and got into the car which sped off. He described two of these men as of similar height and build as the man wielding the hammer. The third man was noticeably shorter, of slighter build and wearing a faded denim top. Tetlow wrote down the registration number of the car, V131 DTM, which was in fact a Golf, not a Polo.[5]The cassettes which were stolen contained a total of £128,000. The money was never recovered.[6]Two stolen motor vehicles were used in the offence; the VW Golf motor car and a Mercedes S320. The owner of the Mercedes was a Mr Carolan. The Golf was the car used at the scene of the robbery. It was driven away and abandoned, and the robbers then got into the Mercedes, which was their second getaway car. It too was later abandoned, and Securicor tags found in it. Both of these vehicles had been stolen in the Greater Manchester area.[7]The prosecution case was that the appellants were part of the four-man team involved in the robbery. Both appellants denied any involvement in robbery.[8]Hookway was arrested on 5 February 2009. In interview he made no comment.[9]Noakes was arrested on 1April 2009. He handed in a prepared statement in which he denied any involvement in robbery. He stated that he had known Hookway for all his life. He had been inside a Mercedes motor car but he could not remember the registration number or the date. Several of his friends had also been inside the vehicle. Thereafter he made no comment.[10]The evidence against Noakes was the following: i) CCTV footage showed that on the day of the robbery the distinctive Citroen Berlingo van which Noakes accepted that he owned and had previously driven was travelling in convoy with the stolen Golf and Mercedes. ii) His Berlingo van was seen with the Mercedes on the evening of the robbery, shortly before the Mercedes was abandoned. The prosecution case was that the Berlingo was being used as a shuttle. iii) There was DNA evidence, to which we shall refer below, found on a swab taken from the Mercedes. In relation to this, Noakes accepted he may have driven the Mercedes after it had been stolen: he drove a Mercedes at a party when he was the only person sober enough to drive. iv) He and Hookway had long been friends and had committed similar offences together in the past. They lived close to one another in Manchester, and both the Mercedes and the Golf had been stolen near their homes. The Mercedes was found with false number plates, the number on which was that of another car belonging to someone else living in the Greater Manchester area.[11]The evidence against Hookway was the following: i) It was agreed, on the basis of expert examination of CCTV recordings, that the height of one of the robbers was between 5 foot 2 ½ inches and 5 foot 6 inches. Hookway’s height, 5 ft 4 ins, was within this range. It excluded Darren Dunn, whom Hookway put forward as the shorter robber. ii) The evidence referred to at paragraph 10.iv) above. iii) DNA evidence, on which we enlarge below, obtained from the Mercedes motor car. Like Noakes, in evidence he accepted that he might have been in the stolen Mercedes.[12]Both Noakes and Hookway gave evidence denying that they had played any part in the robbery. Clearly, it was rejected by the jury.

The grounds of appeal

[13]The grounds of appeal are the same in relation to both appellants. It is submitted that the expert DNA evidence should have been withdrawn from the jury; if it had been, the evidence against them would have been insufficient to justify their conviction, and the judge should have therefore directed a verdict of not guilty. In the alternative, it is submitted that the summing up was defective, in that the judge failed to warn the jury of the dangers of relying on the DNA evidence said to incriminate the appellants. These contentions are disputed by the prosecution.[14]It is necessary to summarise the expert evidence in order to understand the appellants’ submissions.[15]Dr Deborah Sharpe was the expert called by the prosecution. Her expertise was not challenged: she is an eminent forensic scientist. She gave evidence that she had received a number of exhibits which included swabs taken from the Mercedes. Of these, one was from the nearside interior door handle (KTI51)and one from the driver’s seat-belt release (KTI36), Since they were touch or contact areas, and the amount of organic material very small, she chose to use low copy number (LCN) profiling rather than the short tandem repeat (STR) analysis. LCN is a very sensitive method and in her opinion was the most appropriate one to use. The two methods are largely similar, in that they amplify the organic material that is examined, but whereas the STR process involves a factor of amplification of twenty eight, low copy number increases the amplification cycle to 34.[16]In Dr Sharpe’s opinion, Hookway was the major contributor to the DNA found on the rear door handle. She was confident that she was able to separate Hookway’s DNA as the major contributor based on the height of the bands. In her opinion, his DNA was fully represented. She estimated the chances of someone else other than and unrelated to Hookway providing such a sample was one in a billion[17]She obtained a mixed profile from the sample obtained from the driver’s seat belt release. She expected to find that of Mr. Carolan, the owner of the Mercedes. All the components of his DNA were indeed found in the sample, so that a complete match could be made with the comparison sample which Mr Carolan had provided. Once those components were removed, she was able to obtain a profile of another major contributor. It matched Noakes’ DNA. All of his DNA components were in the profile. Once again the chances of someone else unrelated to Noakes providing such a sample was one in a billion. In her view, therefore, the DNA evidence was “extremely strong scientific evidence” connecting Hookway and Noakes with the Mercedes.[18]Clare Stangoe was the expert called by the defence. She too was fully qualified. She would have used the STR method on the samples first to see what it produced. A decision would then be made to see if it was necessary to resort to the LCN process. She accepted that Dr. Sharpe’s approach was a valid and peer-approved process, and said that it was simply a matter of judgment which method to choose. In her report dated 24 February 2010 on the sample attributed to Noakes, she said, at paragraph 27:
“Whilst I would have approached the DNA profiling of this sample differently, and I would be less confident of reporting the statistical evaluation without further analyses, I do agree with Ms Sharpe that Mr Noakes could have contributed DNA to this sample. Once the DNA from Mr Carolan is removed, all of the confirmed remaining DNA components match those in the DNA profile of Mr Noakes,. Therefore, in my opinion, the result is as I would expect if DNA from Mr Carolan and Mr Noakes was present, with a possible trace of DNA from a third individual.”
[19]In her conclusions, she said:
“33. I agree with Ms Sharpe that Gavin Noakes could have contributed DNA to the result, and although less confident of the statistical evaluation carried out, do agree that the result is as I might expect if DNA from Mr Carolan and Mr Noakes was present.”
[20]In her report dated 15 July 2009 on the sample attributed by Dr Sharpe to Hookway, Ms Stangoe said:
“A mixed STR profile with contributions of DNA from at least two individuals, was obtained from these swabbings … All of the components of the STR profile of Steven Hookway were present in this mixed STR result, therefore DNA from him could be present. If DNA from Mr Hookway is present then this appears to be the major contribution of DNA to this result. This is because those components matching his are usually present at a higher level than the components from the other contributor(s) of DNA.”
Ms Stangoe referred to Dr Sharpe’s opinion as to the chances of the DNA being that of someone other than Hookway and unrelated to him, and stated: “If these larger components all originated from the same individual then I agree with this statistical evaluation. However, due to the possible presence of DNA from at least three individuals and the low copy number analysis used to obtain this result, in my opinion it is not appropriate to assume that all the larger components come from the same source. Therefore, whilst I agree that Stephen Hookway could have contributed the majority of DNA to this result, and in my opinion the result does provide support for the assertion that DNA from Mr Hookway is present, in my opinion, it is inappropriate to assign this statistic to this finding. It should be noted that interpreting such results can be subjective from scientist to scientist and that Ms Sharpe’s approach might well be in line with her laboratory’s guidelines. … If it is accepted that DNA from Mr Hookway is present then this could have been deposited as the result of Mr Hookway opening or closing the door using the inside rear handle. If this were the case then I am unable to determine whether this contact occurred during the offence on 9 July 2007 or at some time prior to this.[21]The emphasis is in the original. In her conclusions to that report, Ms Stangoe stated:
“A mixed profile with contributions of DNA from at least two, possibly three individuals, was obtained from the swabs of the rear interior nearside door handle of the Mercedes motor vehicle, registration MV56 XWB. In my opinion, this result does provide support for the assertion that Steven Hookway has contributed DNA to this result, as all his components are represented and confirmed in this result. In my opinion it is not appropriate to assign this statistical evaluation in relation to this DNA profile. It is not possible to determine when the DNA that could have come from Mr Hookway was deposited, or what body fluid this DNA is from.”
[22]In cross examination, Ms Stangoe said that she felt that the findings provided some support that it was Mr Noakes' DNA on the sample from the seat belt release, but she did not feel able to give a statistical evaluation about whether it was his DNA or a chance combination from three contributors producing the same profile as Mr Noakes.[23]Dr Sharpe and Ms Stangoe helpfully agreed a joint report. The judge quoted it to the jury in his summing up. He said:
“Now there is an agreed statement representing, on one page, what the two scientists’ position is concerning KTI51 and KTI36 and I shall read it to you now. ….: ‘With reference to KTI51, that is the rear nearside interior door handle, we are in agreement that this DNA profile consists of DNA from at least two individuals with indications of a possible DNA component from a third individual. All of Steven Hookway's DNA components are represented in this DNA result. Therefore, we are in agreement that DNA from Steven Hookway could be present in this sample. Whilst Dr Sharpe is of the opinion that the components matching Steven Hookway are present at a higher level, comparable to the remaining components, Miss Stangoe is of the opinion that the major component cannot be fully determined. Therefore, Dr Sharpe has gone on to provide a statistical evaluation whereas Miss Stangoe would be of the opinion that this result is unsuitable for statistical interpretation. Both scientists' opinions and interpretations have been independently peer reviewed and appear, therefore, to reflect the differences in interpretational approaches between different forensic providers. With reference to swab KTI36 on the driver's seat belt release, they say this: ‘We are in agreement that this profile consists of DNA from at least two individuals, with indications of a possible unconfirmed trace of a third individual. We are both in agreement that Mr Carolan could have contributed and that this is a reasonable assumption given the circumstances of the case." It was his car obviously. "All of Gavin Noakes' DNA components are represented in the profile that remains once Mr Carolan's DNA has been taken into consideration. Therefore, we are in agreement that Gavin Noakes is a potential contributor of DNA to this sample and as with item KTI51, Dr Sharpe is of the opinion that Mr Noakes' DNA components are represented at a level higher than the background DNA, such that this finding could be statistically evaluated. As with item KTI51, Miss Stangoe is of the opinion that this result is unsuitable for statistical interpretation.’” ‘With reference to KTI51, that is the rear nearside interior door handle, we are in agreement that this DNA profile consists of DNA from at least two individuals with indications of a possible DNA component from a third individual. All of Steven Hookway's DNA components are represented in this DNA result. Therefore, we are in agreement that DNA from Steven Hookway could be present in this sample. Whilst Dr Sharpe is of the opinion that the components matching Steven Hookway are present at a higher level, comparable to the remaining components, Miss Stangoe is of the opinion that the major component cannot be fully determined. Therefore, Dr Sharpe has gone on to provide a statistical evaluation whereas Miss Stangoe would be of the opinion that this result is unsuitable for statistical interpretation. Both scientists' opinions and interpretations have been independently peer reviewed and appear, therefore, to reflect the differences in interpretational approaches between different forensic providers. ‘We are in agreement that this profile consists of DNA from at least two individuals, with indications of a possible unconfirmed trace of a third individual. We are both in agreement that Mr Carolan could have contributed and that this is a reasonable assumption given the circumstances of the case." It was his car obviously. "All of Gavin Noakes' DNA components are represented in the profile that remains once Mr Carolan's DNA has been taken into consideration. Therefore, we are in agreement that Gavin Noakes is a potential contributor of DNA to this sample and as with item KTI51, Dr Sharpe is of the opinion that Mr Noakes' DNA components are represented at a level higher than the background DNA, such that this finding could be statistically evaluated. As with item KTI51, Miss Stangoe is of the opinion that this result is unsuitable for statistical interpretation.’”
[24]The evidence of Dr Sharpe and of Miss Stangoe was taken back to back. When their examinations in chief and cross examinations had been completed, counsel for the appellants applied to the judge for that evidence to be withdrawn from the jury on the ground that they could not safely rely on it.[25]The Judge stated that the professional opinions of the two experts reflected genuine and real differences in interpretational approach within the scientific community. Neither scientist had said the other was wrong, simply that they respectfully disagreed as to whether the results justified an assessment of statistical probability. He considered the case of R v. Cannings [2004] Cr. App R. 7, CAand accepted that there was a serious genuine disagreement between the experts. Nonetheless, he considered that the jury could consider the experts’ evidence, together with the other evidence, and dismissed the application.[26]In due course, he summed up to the jury. We have set out above the relevant extracts relating to the DNA evidence.

The submissions before us

[27]Before us, counsel for Hookway and Nokes essentially repeated the submissions made to the judge. Reliance was placed on the judgment in Cannings, and in particular the statement of principle at paragraph 178:
“… With unexplained infant deaths, however, as this judgment has demonstrated, in many important respects we are still at the frontiers of knowledge. Necessarily, further research is needed, and fortunately, thanks to the dedication of the medical profession, it is continuing. All this suggests that, for the time being, where a full investigation into two or more sudden unexplained infant deaths in the same family is followed by a serious disagreement between reputable experts about the cause of death, and a body of such expert opinion concludes that natural causes, whether explained or unexplained, cannot be excluded as a reasonable (and not a fanciful) possibility, the prosecution of a parent or parents for murder should not be started, or continued, unless there is additional cogent evidence, extraneous to the expert evidence, … which tends to support the conclusion that the infant, or where there is more than one death, one of the infants, was deliberately harmed. In cases like the present, if the outcome of the trial depends exclusively or almost exclusively on a serious disagreement between distinguished and reputable experts, it will often be unwise, and therefore unsafe, to proceed.”
[28]It is said that this too is a case in which the outcome of the trial depended exclusively or almost exclusively on the resolution of the serious disagreement between distinguished and reputable experts, which the jury could not have been sensibly able to resolve, so that it was unsafe for the trial to have proceeded and the verdict of guilty is similarly unsafe. There was no sensible or rational basis on which the jury could accept the evidence of Dr Sharpe, and reject that of Ms Stangoe, since Dr Sharpe accepted that Ms Stangoe’s opinion was accepted within the scientific community as valid, and did not consider her opinion to be wrong, but only different.[29]For the prosecution, Mr Reid stated that even if Ms Stangoe’s evidence had stood alone, he would have adduced it before the jury as supporting the prosecution case. He submitted that the jury were entitled to consider her and Dr Sharpe’s evidence, in conjunction with the other evidence in the case, and decide whether to take account of the opinion of Dr Sharpe or that of Ms Stangoe.

Discussion

[30]In our judgment, this case differs significantly from cases such as Cannings. In the first place, particularly in the case of Noakes, the prosecution did not depend exclusively or almost exclusively on the disputed prosecution DNA evidence. In this connection, it is relevant that both appellants made essentially no comment interviews to the police. Furthermore, the dispute between the experts was not whether there was any DNA evidence incriminating the Appellants. It was as to the strength of that evidence. In the case of Hookway, this was clear: as mentioned above Ms Stangoe stated that the DNA taken from the rear interior handle of the Mercedes “does provide support for the assertion that Steven Hookway has contributed DNA to this result, as all his components are represented and confirmed in this result”. We fail to see why this evidence should not have been considered by the jury. The same applies to Ms Stangoe’s evidence that her findings provided some support for Mr Noakes’s DNA having been found on the driver’s seat belt release. Thirdly, Dr Sharpe’s evidence was not criticised as being unscientific or based on any misconception or fallacy.[31]Significantly, both appellants gave explanations as to why their DNA might have been in the Mercedes, i.e. accepted that they might have been in it. It followed that neither of them denied that his DNA was on the sample attributed to him.[32]It seems to us that there is a paradox in the appellants’ submissions. They accept that if both experts had testified that the other’s opinion was simply wrong, based on a fallacy or a misunderstanding of current scientific knowledge or of the facts, it would have been open to a jury to determine whether they could rely on the evidence of one of them as against that of the other. To relate that to this case, it is common ground that if both Dr Sharpe and Miss Stangoe had said that the other’s evidence was wrong, it would have been open to the jury to accept that of Dr Sharpe as against that of Ms Stangoe. Yet because both state that the other’s opinion is valid and tenable, i.e., Ms Stangoe does not dispute the validity of Dr Sharpe’s opinion, the jury cannot rely on Dr Sharpe’s evidence.[33]The fact is that each of the experts did hold a different opinion and therefore did actually disagree with each other, without stating specifically that the other was wrong. We consider that it was open to the jury to consider the expert evidence, and to place what they considered to be the appropriate weight on the opinion of either expert. They were entitled to form the view that Ms Stangoe was unnecessarily cautious in her evidence when stating that she could not be confident that when all the Appellant’s DNA components were found in a sample, and that they were his as opposed to a combination of components from other people which coincidentally constituted each of those of the Appellants. Moreover, they had to consider the expert evidence in circumstances in which neither appellant denied having been present in the Mercedes at some time relatively close to the robbery.[34]Of course we do not know the reasoning applied by the jury. We are clear, however, that they could perfectly logically consider that the DNA evidence strongly pointed to the guilt of the appellants. By way of example, if the jury rejected the appellants’ accounts of their innocent presence in the Mercedes as false, that would give some support for their DNA identifications. The case against Noakes was particularly strong. If the jury rejected his story as to his driving the Mercedes to an off-licence as being a concocted attempt to explain the possible presence of his DNA, this would support the view that Dr Sharpe’s identification of his DNA was correct. This may have encouraged them to accept the validity of her evidence in relation to Hookway. If so, that, together with the other evidence against Hookway to which we have referred, including that of Ms Stangoe, justified them in convicting him too.[35]For these reasons we rejected the contention that the DNA evidence should have been withdrawn from the jury.[36]We turn to the criticism of the summing up. The judge gave the conventional expert evidence direction, and no complaint is made as to that. He summarised the expert evidence at length, and made it quite clear that both experts accepted the validity of the other’s view. He said, at page 75:
“Does [the DNA evidence] prove that they were involved in the robberies? Clearly, if you accept Miss Stangoe’s evidence, then you could not be sure it was their DNA and could not come to that view.”
[37]We think that the jury were made well aware of the differences between the opinions of Dr Sharpe and Ms Stangoe, and well aware that if Miss Stangoe might be correct in her opinion , the DNA evidence did not of itself prove that the appellants were involved in the robbery. We do not consider that the summing up was defective.[38]Accordingly, we dismissed the appeals.

Cited in 1 later judgment