I, R & T, R. v [2012] EWCA Crim 1288

[2012] EWCA Crim 1288Case No 201200890 C5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT SITTING IN KINGSTON-UPON-HULL
HIS HONOUR JUDGE SAMPSON
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/06/2012
Before
LORD JUSTICE STANLEY BURNTONMR JUSTICE HEDLEYTHE RECORDER OF PRESTON(sitting as a Judge of the Criminal Division of the Court of Appeal
Between
THE QUEENCrownI, R & TDefendant
APPLICATION BY THE PROSECUTION FOR LEAVE TO APPEAL UNDER SECTION 58 OF THE CRIMINAL JUSTICE ACT 2003
Katherine Robinson (instructed by East Riding of Yorkshire Council) for ProsecutionAndrew Thomas QC and Shaun Spencer (instructed by Adjust Solicitors) for Defendant RespondentsHearing Hearing date : 1 June 2012
Judgment

Introduction

[1]This is an appeal by the prosecution under section 58 of the Criminal Justice Act 2003 against the ruling by His Honour Judge Sampson sitting in the Crown Court at Kingston-upon-Hull on 3 February 2012 that the expert evidence it wished to adduce in the trial of the respondents was inadmissible. The admissibility of that evidence was the only issue before this Court.

The prosecution case

[2]For most of the period on the indictment, R andT (his daughter) were the only directors of I, which operated Duck Nest Farm. The company had DEFRA approval to receive and process category 2 and 3 animal by-products.[3]The respondents were charged with failing to process blood by heating it to the required temperature before disposing of it as fertilizer. Counts 1, 3, 4 and 15 of the indictment charged such failures.[4]Blood would be received by I at its plant. It would be received into vast cookers where, if the requirements of the regulations were followed, it would be cooked to at least 133 degrees centigrade for 20 minutes at a pressure of 3 bar. From the cookers the blood would go into a tank known as the green tank and from there into a tanker for distribution to farms where it would be applied as fertilizer or into a tank at Duck Nest Farm known as the lagoon. From the lagoon it would go into a tanker for distribution.[5]In 2008 Simon Goodwin, a senior animal health officer became involved with the respondents following a complaint from a poultry farmer in East Yorkshire. He said his flock were becoming ill because of a fertilizer being used at the nearby Meux Decoy Farm. The fertilizer consisted of blood from the I plant. There was (and is) no scientific evidence supporting the poultry farmer’s allegation that the fertiliser was the source of the flock’s illness, but the allegation led to the testing of animal by-products dealt with by I.[6]On 1 October 2008 Mr Goodwin took samples of the fertilizer from the residual outlet pipe on the farm storage tank at Meux Decoy. He did not think it appropriate to test the sample for bacteria salmonella, clostridium and enterobacteriacea because of the risk that any bacteria found in the blood may have arrived after processing. He therefore required a different test to determine whether or not the blood had been processed. This led him to Mr Reaney a recognised expert scientist in the use and application of counter immuno electrophoresis (“CIE”).[7]CIE is a test for the presence of animal proteins in the blood. If the blood had been heated to a temperature in excess of 75 degrees centigrade no proteins would be found. The presence of animal protein would then demonstrate that the blood had not been heated in accordance with the regulations to 133°C. Avian protein was found in the sample taken from Meux Decoy. This formed the basis of count 1 in the indictment.[8]On 4 November 2008 samples were taken from the lagoon at Duck Nest Farm which tested positive for avian protein, but negative for bacteria. This sample led to count 3. Clostridium bacteria are destroyed at 120°C.[9]On 21 November 2008 samples were taken from the green tank. Three samples were taken in total. Two tested positive for avian protein. This was the basis for count 4.[10]On 9 March 2010 samples were taken from a field pump mechanism used to distribute processed blood and this tested positive for bovine, porcine and avian proteins. This was the basis of count 15.[11]The prosecution sought to prove their case by relying on the evidence of Mr Scott Reaney in relation to the scientific test known as the counter immuno electrophoresis (CIE) test.[12]The judge accepted that Mr Reaney is a recognised scientist expert in the use and application of CIE. He also accepted Mr Reaney’s evidence that:
“CIE is a well established and highly reputable test with a variety of applications. It can test for the presence of animal proteins in blood. If the blood has been heated to a temperature in excess of 75 degrees centigrade no animal proteins will be found. The presence of animal protein would therefore demonstrate that the blood had not been heated beyond 75 degrees centigrade, and, moreover, in the context of this case not processed to 133 degrees centigrade in accordance with the required standard.”

The judge continued:

“Mr Reaney described the CIE test as accredited as to method/execution/staff competency and other criteria. He said that the technique detected albumin proteins which are stable and have species characteristics at normal temperatures. When heated above 75 degrees the proteins are denatured a state which cannot be reversed. He said he had never come across a false positive using the CIE test for animal proteins by reason of a cross reaction or by reason of a testing issue. There are controls within the lab to ensure the test is working. No situation or scenario was put to Mr Reaney by which blood which had been heated to 133 degrees when subsequently subjected to a CIE test could produce a positive result for animal proteins. Mr Woodgate in his evidence was unable to pose a scenario in which the CIE test would produce such a false positive result.”

The judge said:

“The test for admissibility of scientific evidence is not straightforward. There is no single universal test at common law or in statute. There are factors which offer guidance to the judge when deciding the admissibility of scientific evidence. In this case there is no dispute that the CIE test is a well recognised and reliable test for establishing whether or not animal protein is or is not present in blood. No issue is taken as to the proposition that animal proteins denature above 75 d. cent and that the CIE test is reliable to determine whether or not blood has been heated above 75 d. cent.. It is also common ground that CIE testing has never before been applied to blood which has purportedly undergone processing/storage/onward distribution in/at/from a plant such as the D’s plant at Duck Nest farm. No similar plants have been tested to compare results following a CIE test. The D’s submit that although this is a reliable test it is being applied in a novel context without an evaluation of it’s efficacy in that context.”
[15]He continued:
“In my judgment the test for admissibility of the CIE test is that which is set out in paragraph 12 of the Defendants’ submissions: Is the underlying science sufficiently reliable to be admitted in a court of law? The simple answer to that question in this case is ‘yes’, but in my judgment the better answer is yes unless there are factors over and above the vague and fanciful that cast doubt on the reliability of the CIE test in the context of/on the special facts of this case.”
[16]The judge then referred to the facts that did in his judgment cast doubt on the reliability of the CIE test results in question. “Mr Reaney is an expert on the use of CIE. Mr Woodgate is not expert in the use and application of CIE although I accept that he is expert in the general science surrounding the process with which we are concerned. Without more I would have no hesitation in rejecting Mr Woodgate’s general concerns as to the lack of evaluation/peer review and so on with regard to the CIE test in this context. However there is more. There are test results which are on the face of it inherently inconsistent with the CIE test, but consistent with the defence case. Some samples tested positive for animal protein, but negative for bacteria. Unless some factor other than heat above 120 d.cent is causing the bacteria to be absent a doubt must remain as to the reliability of the CIE test in what is for it a novel context. The burden must be on the P to prove, by adducing reliable scientific evidence, the “other factor” in order to confirm the reliability of the CIE test. Mr Reaney postulates the following as being reasons why no bacteria are present in samples which contain animal protein: 1. Dilution of the sample by processed blood thereby reducing the bacteria in the sample to below the detectable threshold. 2. There were no detectable bacteria in the unprocessed blood in the first place. 3. A chemical agent such as disinfectant has killed the bacteria in the unprocessed blood. None of these hypotheses have been tested. Any one may be right. But Mr Reaney conceded that 2 is probably fanciful. My suspicion is that the truth is No 1, but my suspicion is neither here nor there. The evidence is that they are all capable of being tested. If they were tested and one or more proved to be the explanation for the inconsistency then there would be no doubt in my mind as to the reliability of the CIE test in this case. Whilst these theories remain untested there is in my judgement a small but reasonable doubt about the reliability of the CIE test results. Can the doubts as to the reliability of the CIE test be resolved by reference to any other evidence in the case? The P point to the false records which suggest blood had been processed by the D’s when it had not in fact left the abbatoir. This other, none scientific, evidence cannot in my judgement render unreliable scientific evidence reliable. There is another oddity in the results. The blood/matter coming in to the D’s plant is on average about 80% avian and 20% other in terms of species. One would expect the mix in the green tank and lagoon to be of a similar ratio. The sensitivity of the CIE test for avian protein is 1:10,000 and for porcine, ovine and bovine 1:50,000. The fact that the green tank and lagoon only tested positively for avian protein is not explained. No tests have been undertaken to explain this apparent anomaly.”[17]He concluded:
“Where there is a reasonable doubt as to the reliability of scientific evidence which is the decisive evidence in the case it ought not in my judgment to be admitted. That is my conclusion.”

The contentions of the parties before us

[18]In her admirably brief submission, Miss Robinson submitted that the judge had confused the question of admissibility of expert evidence with the question of the weight to be given to that evidence.[19]In his similarly concise submissions, Mr Thomas QC contended that the judge was right to reject the admissibility of the prosecution expert evidence for the reasons he gave.

Discussion

[20]Mr Reaney, the prosecution expert, was acknowledged as an expert in his field. Indeed, when Mr Woodgate, the defence expert, who has no experience of CIE testing, sought an expert on the use of CIE, Mr Reaney was recommended. The CIE test is accepted by the scientific community as a reliable test to distinguish between, for example, avian and bovine protein. In this case, it was used for a less demanding purpose, simply to test for animal proteins that not been denatured. There is no evidence that the test would show positive for denatured animal protein. The test was used in this case for a new purpose, but that does not of itself render the test unreliable or its results inadmissible.[21]In the present case, there are two findings to which the judge referred that may indicate that the results of the CIE tests are inconclusive or unreliable. The finding to which the judge principally addressed was the absence of the specified bacteria in samples tested positive for animal protein. Since the required heat treatment would eliminate these bacteria, as well as denature animal proteins, one would expect bacteria, as well as animal proteins, to be found in any untreated sample. It was therefore necessary to consider whether the finding that samples were bacteria-free indicated that, contrary to the prosecution case, they had been the subject of the required heat treatment, and that the CIE test results were unreliable.[22]However, if there is a soundly based scientific explanation for the two findings, of no bacteria but of animal proteins, neither finding casts doubt on the reliability of the other or of the inferences to be drawn from them.[23]The prosecution suggested three explanations, which the judge numbered. We can set aside the second in the judge’s list, that there were no detectable bacteria in the unprocessed blood, which Mr Reaney conceded to be a fanciful explanation.[24]However, the other two are explanations which do not indicate inconsistency with the reliability of CIE testing. They were advanced by Mr Reaney. The judge did not find that they were scientifically unsound. That those explanations are unproven does not necessarily indicate that the CIE tests were unreliable. If in fact the relative volume of unprocessed to processed blood was so small that the bacteria in the sample was at an undetectable level, whereas, by reason of its sensitivity, unprocessed protein at the same level of dilution is detected by CIE, there is no inconsistency.[25]However, the prosecution have not adduced any evidence to support what is little more than conjecture on the part of Mr Reaney. They have not put in evidence as to the sensitivity of the bacteriological testing. If that testing is as sensitive as the CIE test, this explanation would have been shown to be inapplicable and irrelevant.[26]The other explanation put forward is that a bactericide had been added to the blood from which the samples were taken. Again, there is no evidence to support this suggestion. It appears that the samples were ph neutral, so that if any bactericide was added, it was either ph neutral or at such a low concentration in the bulk from which the samples were taken as not detectably to affect the ph level. Whether there is a ph neutral bactericide, and if so whether it would have been practically or economically available to the respondents, are not in evidence. Mr Woodgate has put forward good reasons for rejecting this hypothesis, but the judge made no finding about them.[27]The judge also referred to the oddity that only avian protein was found in the green tank and in the lagoon, whereas on average the blood and other matter coming in to the respondents’ plant is 80 per cent avian and 20 per cent mammalian. However, if an untreated delivery comprised only avian blood (having originated, for example, from a chicken farm) this would not be an oddity, and would not indicate any unreliability of the CIE test results.[28]Against all this, we have no suggestion from the respondents as to how animal protein that had not been denatured could have found its way into the treated blood. As the judge noted, Mr Woodgate was unable to pose a scenario in which the CIE test would produce a false positive result.

Conclusion

[29]In our judgment, once the judge concluded, as he did, that “the CIE test is a well-recognised and reliable test for establishing whether or not animal protein is or is not present in blood”, the CIE test results were admissible on the basis of Mr Reaney’s expert evidence. The fact that the test was used for a new purpose, or in a new context, did not of itself render the test unproven. If the test had been applied to clearly untreated blood, to ascertain whether or not it was avian, it would have been applied for a previously established purpose. Its use to detect avian protein is not very different. Furthermore, it is common ground that heating blood to a sufficient temperature denatures animal protein so that it is not detected by the CIE test. So far, we agree with the judge.[30]However, when the judge proceeded further, to lay down as the test to be applied: are “there … factors over and above the vague and fanciful that cast doubt on the reliability of the CIE test in the context of/on the special facts of this case?” the judge confused the question of admissibility with the question whether, if admitted, the expert evidence was such that on its basis a jury could properly convict I. (For present purposes, we leave out of account R and T, since the prosecution case against them involves facts additional to those that must be proved against the company.) The defence had pointed to facts (the lack of bacteria) which might be inconsistent with the reliability of the CIE tests. Against this, Mr Reaney had put forward possible explanations for those facts. If his explanations were found to be improbable, the conclusion might well be that the prosecution had not proved, or could not prove, its case. However, that decision would not be one on admissibility, but whether on the particular facts the prosecution had proved its case.[31]In our judgment, therefore, this appeal should be allowed. We propose to order that the proceedings for the offences that are the subject of the indictment be resumed in the Crown Court. It will be for the trial judge to rule on the basis of the evidence then before him on any application on the part of the respondents that may be made in the light of this judgment.