For anyone who doesn't have the document, here's the 2002 Appeal summary (in its entirety) concerning grounds relating to the blood evidence.
Grounds 14 and 15 – blood in the sound moderator 452. Grounds 14 and 15 each relate to different aspects of the evidence relating to the blood in the sound moderator. They are distinct matters but clearly need to be considered together because they relate to the same important aspect of the prosecution case. Ground 14 is an attack upon the blood testing evidence called at trial based upon fresh evidence which it is suggested would have cast doubt upon the prosecution evidence in this regard if it had been available to the jury. Ground 15 is the sole ground upon which this case was referred to the Court by the CCRC. It is based upon the testing of the sound moderator for DNA, a technique that was not available at trial.
453. We have set out at paragraphs 75 to 80 a summary of the evidence at trial relating to the scientific examination of the moderator. The critical part of that evidence was the analysis of the flake of dried blood found inside the sound moderator. The evidence was given by Mr Hayward, a biologist who was working at the Forensic Science Laboratory at the time of the examination although he was in private practice by the date of trial. In his evidence he described how he had found "a considerable amount of blood" inside the moderator deposited in the spaces to the sides of the baffles around the edge of the silencer. He was asked if he had tested "any" of that blood. He said that he had and that it was human blood. He said that he had obtained grouping reactions for group A, EAP BA, AK I, Hp 2-1. He had done a PGM grouping test but it gave negative results. He said that these grouping results were consistent with the blood coming from Sheila Caffell but not solely from any of the others who had been shot.
454. Mr Hayward then said that you could get different reactions if there was more than one person's blood present and he said that it was "a remote possibility" that the blood that he had tested was a mixture of blood from Mr and Mrs Bamber. Mr Bamber's blood was group O, PGM 1+, BAP BA AK1, Hp2-1. Mrs Bamber's blood was group A, PGM 1+, EAP BA, AK2-1, Hp2-1. If these bloods were mixed together, you could get the results recorded from the blood tested from the moderator. However, if there was sufficient of Mrs Bamber's blood present to give the clear cut group A result, he would have "stood a good chance of detecting the AK2-1 which would have gone with it". He said that there was nothing to suggest to him that there was blood from more than one person present.
455. Mr Hayward said that the conclusions of Dr Vanezis, the pathologist, and Mr Fletcher, the firearms expert, supported his view that the blood was from Sheila Caffell alone because their findings suggested that only Sheila Caffell had been shot with the gun in contact with her skin or from "very close range" and he would have been very surprised to find blood within the moderator from a person who had not been shot with the end of the moderator in contact with that person or at least very close to it. He was asked what very close meant and he said that that was a matter for Mr Fletcher, the firearms expert.
456. Mr Hayward also gave evidence about examining a pull through used to examine the inside of the barrel of the rifle itself. He said that there was no blood at all on it. He expressed his conclusion as (Transcript PMS/2 page 18B):
"Since the blood from inside the sound moderator belonged to the same group as Sheila Caffell, and since there was no blood inside the barrel of the rifle, I was led to the conclusion that Sheila Caffell had been shot whilst the sound moderator was fitted to the rifle."
457. Mr Fletcher, the firearms expert, gave evidence to explain how blood got into the moderator if it was attached, or into the barrel if there was no moderator attached. He said that the mechanism was complicated and not then fully appreciated. However, the expanding gas when the bullet left the muzzle was under normal circumstances distributed into the atmosphere. However with a contact shot there was no opportunity for this escape and the gas would follow the bullet into the wound as it expanded. Back pressure would then build up forcing the gas back out of the wound taking with it blood and tissue which would in effect be blasted back into the barrel if there was no moderator or into the moderator if one was attached. He said that even without direct contact, the same effect might occur but only if the gap between the end of the barrel, or the moderator if attached, and the skin was less than one millimetre. He said that the likelihood of such an occurrence was to an extent dependent on the part of the body to which the shot was delivered and the amount of blood present at that point.
458. If the shot to Shelia Caffell, which was a contact shot to the throat, had been fired without the moderator in place, he would have expected to find blood in the barrel of the gun. If the moderator was attached it was "virtually certain" that Sheila Caffell's blood would get into the moderator. There was, he said "a very slight possibility of it not happening, but very slight".
459. Mr Fletcher was asked about the wounds to Mr and Mrs Bamber and whether they could have been contact wounds or wounds at such proximity that blood might have been propelled back into the moderator. He said that Mr Bamber had a wound that could have been a contact wound and that Mrs Bamber had one wound where there was a slight possibility that it was a contact wound. He concluded by saying (Transcript PMS/10 page 58):
"The most likely explanation for the blood being in the sound moderator is that it was fitted to the gun at the time the contact wound to Sheila Caffell's neck was fired. There is a very very slight possibility that I am wrong in my opinion, but I don't think so."
460. In dealing with this evidence, the defence were limited by the evidence available from their own expert. They called no such evidence at trial but the material that they had obtained pre-trial has been disclosed in the course of this appeal. The defence had instructed Dr Patrick Lincoln, whose expertise in such matters was well known. On 29 April 1986, he visited the forensic science laboratory and examined the relevant material. He carried out tests on all seventeen baffles. The first eight plates all gave weak or very weak positive reactions for blood. There was no blood clearly visible to the naked eye and Dr Lincoln concluded that "such findings could be consistent with an item having been previously swabbed by a forensic scientist to remove blood stains for testing". The other nine plates "did not produce any evidence for the presence of blood". He agreed with Mr Hayward's conclusion that the combination of blood groups revealed in his testing of the inside of the moderator could have come solely from Sheila Caffell but did not come from any one of the other individuals. He said that it was not clear from Mr Hayward's statement that he had obtained the blood from which the different group testings had been done from the same area of the moderator. If they were not from the same area, then the results could have originated from more than one individual.
461. On 8 September 1986, Dr Lincoln again went to the laboratory and this time met and discussed the matter with Mr Hayward. As a result of this meeting, Dr Lincoln appreciated that the blood tested all came from a single flake trapped under the first or second baffle. In a letter to the defence solicitors, Dr Lincoln said that Mr Hayward "used this single flake to produce a solution from which he was able to determine the groups". He said that this meant that the possible explanation he had earlier suggested as to a combination of more than one persons blood no longer applied.
462. In one respect Dr Lincoln was in error. Whether that error was from something said by Mr Hayward or simply from an assumption made by Dr Lincoln cannot now be ascertained and matters not. The error was to suggest that the whole of the blood flake was dissolved and the resulting solution was used for all the tests. In fact what had happened was that the flake had been divided into a number of parts and each part had then been used for a separate group test. Thus the tests were not done on liquid drawn from the same solution made from the whole flake but on separate solutions each made from distinct parts of the flake. We have no means of knowing whether correction of this error would in any way have altered Dr Lincoln's view.
463. Ground 14 is based upon evidence from a fresh expert instructed by the defence (Dr Lincoln no longer being available to them), Mr Mark Webster, a forensic scientist in independent practice. He was asked to consider the possibility that the blood tested by Mr Hayward might have been a combination of the blood of Mr Bamber and Mrs Bamber.
464. Mr Webster made a number of points:
i) He suggested that the flake, which was a quarter of an inch across, might not have been a flake of blood but a flake of soot splattered with blood that had been mistaken by Mr Hayward for a flake of blood. His one basis for this rather surprising suggestion was that he had noted a flake of soot on one of the baffles.
ii) He accepted that if the blood from Mr and Mrs Bamber had become "intimately mixed", the results certainly could not have been mistaken for Sheila Caffell's blood alone.
iii) However, "if the blood from the two sources did not become completely intimately mixed, then the test could not be guaranteed to detect the mixture".
iv) If the sample tested was a blood stained flake of soot, this increased the chance that the two different sources of blood might not have been completely intimately mixed.
v) If the sample was not completely intimately mixed, the grouping test might be carried out on different portions of the sample and hence each might detect only the blood of one of the persons responsible for the mixture.
vi) Whilst he accepted that the method of testing was the standard approach to blood grouping at the time, it was only applicable to "a run of the mill" case where it was known that each bloodstain was from a single individual. When there was a risk that it might be from more than one blood source, as here, Mr Hayward should have taken steps to ensure that the different group tests were carried out on the same material. This could have been achieved either by dissolving the whole flake and forming a single solution or by crushing the flake and pulverising it to ensure that all parts were completely mixed.
vii) In the circumstances it was wrong to characterise the possibility that the group testing results came from a mixture of the blood of Mr and Mrs Bamber as "a remote possibility" and it should have been considered to be a real possibility. 465. Having read Mr Webster's report and having regard to the potential importance that the jury might have attached to this aspect of the case. We thought it right, at the very least, that we should hear Mr Webster's evidence and the crown asked leave, which we granted, to call Mr Hayward so that we could hear his answers to Mr Webster's criticisms. We are conscious that in considering Mr Webster's evidence that the test is not what conclusion we might draw from the evidence but what possible impact it might have had on the jury's consideration if given at trial.
466. There were a number of features of Mr Webster's evidence that we found less than satisfactory and we have little doubt that if it had been placed before a jury they would have shared that view. Firstly, there is Mr Webster's suggestion that Mr Hayward might have mistaken a flake of soot which was blood stained for a flake of dried blood. Mr Hayward had given evidence at trial of a close visual examination of the flake. He was an experienced forensic scientist. If he had made the sort of mistake suggested by Mr Webster, it must have represented a significant failing in the performance of his duties in what was clearly a highly important case. There was no suggestion, then or now, that Mr Hayward was other than a competent and careful forensic scientist. Before such a suggestion was made by another forensic scientist, one would expect to see some evidential basis for that suggestion. There was absolutely none. That fact that soot was found on the baffles did not begin to suggest that Mr Hayward would have made the sort of error suggested.
467. The next feature of Mr Webster's evidence which left us unimpressed was the way in which he criticised Mr Hayward for assessing the chance that the blood was not a mixture as being a remote chance. He said that a remote chance was equivalent to the chance that he might be struck by lightning as he left the court building. We think that that was to suggest something far less likely than that which Mr Hayward had sort to convey to the jury. Forensic scientists are used to putting probabilities on a scale that a jury can understand. At one end of the scale is a very strong chance, at the other a remote chance. To suggest that it was giving the chance as being so unlikely that it could effectively be discounted is to distort what Mr Hayward was saying. Mr Webster's own assessment of the chance as a "real" chance is unhelpful. Whether there is a very strong chance of something happening or a remote chance of it happening, it is a real chance. A real chance does nothing to assess the likelihood of something happening in a way that a jury could properly understand.
468. The final and most important criticism of Mr Webster is as to his findings in relation to the possibility of a mixture of blood drying in such a way that it would not thoroughly mix. We should have thought that before advancing such a theory, a scientist would inevitably satisfy himself that there was a proper basis for the theory. That might be done by some form of experimentation, by drawing upon identifiable findings in other cases of relevance or by reference to the recent conclusions of other scientists. So far as we can judge, Mr Webster has done none of these things. He rejects experimentation because he asserts that it is impossible to reproduce the exact situation that arose in this case and because he did not have available to him sufficient facilities to do anything that came close to the circumstances of this case. He pointed to one instance he had come across where a single bloodstain was a mixture of more than one person's blood, which had not completely mixed. When asked to identify the relevant case, he was unable to do so and when asked for further details it transpired that it was blood that had soaked into cloth and not, as had occurred in this case, blood that had fallen upon a non-porous surface, a wholly different situation.
469. Mr Webster was asked about support for his theory amongst other scientists or in published material. As to the former, he said that his theory had been "looked at by an extremely senior forensic scientist from Germany and he thinks that it is a theory worth consideration". As to the latter he referred to a paper by Stringer, Vintner, Stowel and Thomson which included the passage:
"In forensic investigations, it can be mistakenly assumed that a particular blood stain originated from a single individual. In our experience, there have been occasions when blood stains consisting of blood from more than one individual have occurred; for example crime scenes where more than one person has been stabbed. Grouping of blood mixtures in such cases can give rise to false exclusions."
470. We find no support for Mr Webster's theory in that passage. Of course, the danger has to be recognised or an error may occur. Mr Hayward was clearly alert to that danger and recognised in his evidence the possibility that it might have occurred in this case. He explained why he thought it was only remotely likely that it might have happened. What the passage quoted does not do is to provided the slightest support for the theory of a blood flake coming from two sources onto a non-porous surface which did not mix sufficiently for false conclusions to be drawn from grouping tests.
471. Mr Webster was at pains to point out that he did not have the resources to carry out testing sufficiently related to the circumstances of this case but as far as we are aware, he has not done any testing to examine the circumstances in which a small pool of blood could be created on a non porous surface to give rise to a misleading result, let alone any testing of anything comparable to the present situation.
472. Mr Hayward, in contrast, has we are satisfied taken some steps to satisfy himself that he is right. He started from the proposition clearly supported by evidence that within the sound moderator there would be a very turbulent motion when the rifle was discharged. This by its very nature would produce forces that would tend to mix the blood from the two sources. In addition, the unscrewing of the sound moderator to remove it involved a twisting motion through a number of complete turns, which again would facilitate mixing. Starting from this proposition, it seemed to Mr Hayward that the only likelihood of an unmixed flake of blood would be if the blood from one source dried and blood from the other source then fell upon it. That possibility was recognised and experiments were carried out to see what happened when blood was in the moderator and other shots were discharged. First the temperature of the sound moderator was established after 25 shots had been fired through it. The temperature was found to be 24.5 degrees centigrade, which is substantially less than body temperature, and hence not likely to result in any speedy drying of the blood on the moderator. The further test that was carried out was to introduce blood onto the baffles and cause the rifle to be fired to see whether the blood did in fact dry. It did not and hence the conclusion was drawn that the blood would not have dried more quickly in the moderator than on some other non-porous surface. Having regard to the time span involved, it was therefore unlikely that blood from one person would have dried before the other person was shot. It seems to us that this investigative approach is precisely the sort of experimentation that one would expect from a scientist before a theory was advanced as being capable of being relied upon.
473. Mr Hayward, notwithstanding this further experimentation, still acknowledges the possibility of the flake being from Mr and Mrs Bamber just as he did at trial. He still assesses that possibility as remote.
474. We cannot see that Mr Webster's evidence unsupported by any experimentation or other credible basis would have had any significant impression on the jury. The jury could not convict solely on Mr Hayward's conclusion in any event because he himself acknowledged the remote possibility that it was wrong. The jury could only have been sure when they considered other aspects of the case both relating to the moderator and to quite distinct issues. As to the moderator, there was the remarkable proposition raised by the defence case that Sheila Caffell having killed her family found that she could not shoot herself with the moderator on and instead of simply taking the moderator off and putting it down, went downstairs to an office, put the moderator in its proper place in the gun cupboard and then returned to her parents' bedroom where she sat or lay down on the floor and shot herself. There was in addition not merely the presence of the blood flake in the moderator but the absence of any blood in the barrel of the gun, the end of which would have been in contact with her neck when the shot was fired.
475. Accordingly, having looked carefully at this aspect of the case, we can see nothing in the fresh evidence, which persuades us that there was any prospect of the jury reaching a diffident conclusion if they had heard that evidence. Thus there is nothing to render the conviction unsafe. We do, however, need to bear in mind the possibility that that position might be different following consideration of the DNA evidence and we will revert to it after considering the next ground.
Ground 15 – DNA evidence 476. Ground 15 is the ground upon which the case was referred to this court by the CCRC. At the date of the investigation into this case DNA testing was not available for consideration of the source of body fluids. Hence the blood samples and blood staining was not subjected to such testing and was only subjected to the much less sensitive blood group testing to which we have already referred. During the course of the subsequent investigations, it was appreciated that DNA testing of the sound moderator was a possibility. Accordingly it was carried out and it was the conclusions of that testing that caused the CCRC to refer the case to this court. Since that date further DNA testing has been carried out and it is necessary to consider not only the information available to the CCRC but also that which has been discovered since.
477. The CCRC recorded the information available to it as:
"10.2 The silencer had been submitted by the Commission to the FSS for examination in order to establish whether there was more than one person's DNA inside it. On the 6 March 2000, the Commission was informed that the tests had identified the DNA of at least two people inside the silencer and that there was both male and female DNA present. The female DNA was stronger than the male DNA and was present all the way through the inside of the silencer. They were not able to say that the DNA readings were derived from blood, and they were not able to identify from whom the DNA had originated.
10.3 Further inquires were commenced at this time with Essex Police in order to establish whether any blood exhibits existed from which sample references could be taken for June Bamber and Sheila Caffell. Inquiries into other areas raised in Mr Bamber's application were being undertaken at the same time. The Commission was subsequently informed that Essex Police had destroyed all the blood based exhibits in February 1996."
478. On this information the CCRC decided that "the DNA results as they stood began to support the theory put forward by the defence at trial". They decided to take steps to see whether the female DNA found within the moderator came from Sheila Caffell. To this end they located Sheila Caffell's natural mother and obtained a sample of her DNA. The evidence of the testing of this sample was recorded as:
"The results of these tests were that…the DNA in the silencer could not have come from Sheila Caffell".
479. The Commission concluded:
"10.10 Whilst it might be arguable that the recent DNA tests do not establish that the source of the female DNA was blood, the Commission believes, as a matter of probability, that it is from blood because it was found deep within the silencer. Given the record of handling of the silencer by the scientists, the Commission does not believe that any possible contamination from them is likely to have been found that far down inside. Also, given that it is an accepted fact that blood was in the silencer in 1985, the Commission considers that it is much more likely that the DNA is from the blood found in the silencer at the time. Considering the length of time that has past and the fact that much of the blood was swabbed out for blood grouping, the Commission does not consider that the negative KM result strengthens the possibility that the DNA does not originate from blood. In any event, the Commission considers that the absence of Sheila Caffell's DNA is significant.
10.11 The Commission considers that the fresh evidence relating to the silencer severely undermines the Crown's case against Mr Bamber as it was presented to the jury. …"
480. Whilst acknowledging the careful approach of the CCRC, there were respects in which it is apparent that even on the information available to them, their conclusions fail to recognise the totality of the evidence available.
481. The evidence of Mr Hayward was not to the effect that all the blood in the moderator had been tested but rather that some of that blood had been tested. Thus this was not a case where the scientist was saying that the only blood in the moderator came from Sheila Caffell. His evidence was that the blood tested came from Sheila Caffell although he acknowledged the remote possibility that even that blood was a mixture of blood from Nevill Bamber and June Bamber.
482. No questions were asked at trial of Mr Hayward to establish what part of the blood he had tested. The position was, however, known to the defence through their own expert Dr Lincoln. Dr Lincoln had seen the evidential material upon which the group testing results were based and agreed with the conclusions. He recorded that evidence in the course of his report of 19 September 1986. He said that Mr Hayward had "found a flake of blood trapped under the first or second baffle plate" and that it was this flake that was tested and produced the groupings A, EAP BA, AK1, Hp2.1 upon which reliance was placed by the prosecution. Dr Lincoln further recorded:
"Mr Hayward states that he could detect visible staining on the "upper baffle plates" and that he swabbed these plates so that the blood was taken onto cotton material which could subsequently be used in grouping tests. On this material Mr Hayward successfully determined the ABO and EAP groups and showed the blood to be groups A, EAP BA."
483. This finding from the swabbing of the upper baffle plates was thus consistent with blood from either June Bamber or Sheila Caffell or even a combination of blood from the two of them but not in any way from blood from Nevill Bamber or Nicholas Caffell.
484. Thus, even if one accepted that the DNA found on the baffle plates at a much later date came from blood from June Bamber deposited on the baffle plates during the shootings, it was not in any way inconsistent with the conclusions drawn from the testing of the flake which material that had been destroyed by the very nature of the examination process and hence could not be subjected to DNA testing. Thus the evidence did not as the Commission suggested "severely undermine" the prosecution case.
485. Further the Commission had rejected the possibility of contamination affecting plates deep into the moderator. That conclusion did not fully take into account all the available evidence relevant to the issue of contamination. The CCRC considered "the record of handling of the silencer by the scientist" but that represented only one possible source of contamination in the case. In addition their conclusion that "it is much more likely that the DNA is from the blood found in the silencer at the time" failed to address the detailed findings that were made at the time. We will return to these issues at a later stage. It is, however, against this background that ground 15 is raised by the appellant and reads:
"Fresh DNA evidence, not available at trial, and now available supports the contention that blood in the silencer, said to be that of Sheila Caffell was in fact a mixture of the blood of Ralph and June Bamber. The appellant has been denied the opportunity of strengthening this ground by the deliberate destruction of exhibits by the police in February 1996 in breach of their own guidelines as to the destruction of such exhibits."
486. To consider this ground, it is necessary to examine the evidence about the testing for DNA and to record the evidence which we have before us as to the conclusions that can be drawn from the testing in this case.
487. The evidence reveals that the form of DNA testing carried out was Low Copy Number (LCN) DNA profiling. This form of DNA profiling is designated to increase the sensitivity of earlier types of DNA profiling so that, in theory, only a few cells are required for successful analysis. As a result mixed DNA profiles, (i.e. profiles containing DNA originating from more than one individual) can be anticipated. LCN DNA profiling tests do not provide any information about the type of body fluid tested or when it was deposited on the item. Because of the sensitivity of the test, the possibility of contamination must be taken into account. Rigorous procedures have been drawn up to eliminate so far as possible any contamination in the gathering and examination of items from crime scenes. Because DNA testing was not available at the time of these killings (let alone LCN DNA testing) such procedures were not in place at the time when these items were gathered and first tested. In addition, at the trial no precautions would have been considered necessary to protect the integrity of the exhibits because it was not then anticipated that further testing would take place.
488. In order to test for DNA within the moderator, the moderator was dismantled and the seventeen baffles were divided into three groups for analysis; A) baffles 1-7, being those closest to the bullet exiting end, B) baffles 8-11 and C) baffles 12-17. This was done because there was an expectation that the amount of DNA on any single baffle would be very small. Thus in order to have the best chance of obtaining a DNA profile, each group was swabbed with the same swab rather than using a separate swab for each baffle.
489. In a statement before the court, Linda Groombridge, a biologist with the forensic science service recorded the findings (which are common ground):
"The DNA results obtained from the three samples indicated that mixtures of DNA from at least two people had been detected in each sample. The results showed a high degree of similarity between them and appear to consist of an incomplete major female profile and a minor contributions, possibly from a male. The minor contributions consisted of two components only, the same in each sample. The indication that these components could have come from a male was present in samples B and C only.
Often it would not be possible to determine the sex of the body fluid from which the DNA originated using this technique, however, in my opinion the major profile obtained in these samples was sufficiently strong for me to make this assumption. As DNA profiles were detected in each of the three samples, at least one of the baffles in each of them must have been stained with DNA. It is not possible to distinguish which of the individual baffles may have been stained with DNA."
490. Samples obtained from Sheila Caffell's natural mother and from other sources enabled the scientists to say with confidence that the major component did not come from Sheila Caffell. Because the blood sample of June Bamber no longer exists, it has not been possible to do a direct comparison between her DNA and that of the major component. However, it has been possible to obtain a sample from June Bamber's sister, Pamela Boutflour, which because closely related relatives are statistically more likely to have shared components than unrelated individuals, has enabled conclusions to be drawn. That evidence shows that it is about 3,500 times more likely that the major source of DNA was from a full sister of Pamela Boutflour, i.e. June Bamber, compared to it being from an unrelated female. Both Mr Clayton and Miss Tomlinson, the DNA experts from whom we have heard, assessed this as strong evidenced that the major component therefore comes from June Bamber.
491. A part of this ground of appeal relates to the destruction of June Bamber's blood sample. It is not suggested that that can be used as a free standing ground of appeal but it is combined with the DNA evidence to suggest that the appellant may have been deprived of the chance of advancing even stronger evidence that the DNA was from June Bamber. On the evidence of the two scientists, we would feel that the only safe course for us to take is to conclude that the major component of the DNA on the baffles did originate from June Bamber. When we made clear to Mr Turner that this would be our approach and queried whether in such circumstances the destruction of the samples from June Bamber could be said to prejudice the appellant, Mr Turner recognised the force in the point and after taking specific instructions from the appellant decided not to pursue that aspect further. We have therefore not considered the circumstances in which the blood samples were destroyed since they have no bearing upon any other aspect of this case.
492. The minor components of the DNA on the baffles have yielded such very limited amounts of information that the scientists conclude that apart from evidence that there is DNA from at least one male present, no meaningful comparison can be made.
493. Since the CCRC referred this case to the court, further DNA testing has taken place of other parts of the moderator. Seven swabbings have been taken from internal parts of the moderator apart from the baffles. All seven results indicated that DNA from more than one person was present. The results were complex and incomplete and it was not possible to determine how many people had contributed to the DNA from the mixture. The predominant contribution appeared to have come from a female or females.
494. When comparisons were possible, components matching Sheila Caffell's DNA profile were detected in five of these seven results. The other two results also contained components which matched those of Sheila Caffell, but not at all of the ten areas of DNA tested where information was available for comparison.
495. Some of the components detected did not match the profile of Sheila Caffell or the Caffell twins.
496. In the interpretation of the results, Dr Clayton called on behalf of the appellant and Miss Groombridge, called on behalf of the prosecution disagreed to a limited extent. Both agreed that Sheila Caffell could have contributed to this mixture of DNA but Miss Groombridge was prepared to go further and say that the findings provided support for the proposition that she had contributed to the mixture. She was, however, unable to determine the level of support provided. In her evidence to the court she explained her reasoning. Seventeen of the twenty bands attributable to Sheila Caffell had been detected in DNA from the internal swabbings. Random chance would have suggested thirteen common bands would be found and hence since there was significantly more than thirteen, it provided some support for the DNA of Sheila Caffell being in the moderator. However, Miss Groombridge was unable to perform any sort of statistical evaluation of the likelihood of this happening and hence unable to assess the strength of the support. Dr Clayton, whilst acknowledging the respect that he had for Miss Groombridge's views and whilst recognising the possible validity of the point that she made, felt that it was unsafe to draw any such conclusion. Whilst we recognise that there may very well be merit in Miss Groombridge's evidence in this regard, we doubt very much whether a jury would have been prepared to place any significant reliance upon it so that it might have altered any view which they otherwise would have reached.
497. We, therefore, consider the matter on the basis that the conclusions to be drawn from the DNA evidence are:
i) June Bamber's DNA was in the sound moderator at the time of the DNA examination;
ii) Sheila Caffell's DNA may have been in the sound moderator but it was not possible to conclude one way or the other whether it was; and
iii) there was evidence of DNA from at least one male. 498. The next issue is can it be said that any of the DNA came from blood. As already made clear the DNA testing itself could not provide an answer to this question. It is necessary therefore to look at the available evidence about the presence of blood in the moderator. This can be summarised as follows:
i) Mr Hayward gave evidence of having found "a considerable amount of blood" on the "few" baffles nearest to the muzzle end. He had not noted the number of baffles but from recollection thought that it was about five.
ii) Mr Fletcher, the firearms expert, gave evidence that he had seen blood which went down as far as the fifth baffle and he thought that there might have been a little further in as well, may be the sixth or seventh baffle.
iii) Dr Lincoln recorded that on the 29 April 1986, he examined all seventeen baffles and obtained weak or very weak positive reactions indicating the presence of blood on the first eight baffles. There was no blood visible to the naked eye. He thought the findings could have been consistent with swabbing to remove bloodstains for testing. Tests on the remaining nine baffles proved negative.
iv) On 8 September 1986, Dr Lincoln discussed the matter with Mr Hayward and Mr Hayward told him that there was visible blood on the first four, five or six baffle plates and "the blood staining appeared to diminish as one progressed through the baffle plates". Mr Hayward said that he had swabbed the upper baffle plates and obtained the groupings A, EAP BA. Mr Hayward had also described to Dr Lincoln the removal of the flake found trapped beneath either the first or second baffle.
v) On 29 March 1999, Mr Martyn Ismail, another forensic scientist and Mr Mark Webster, the defence expert, examined the sound moderator for the presence of blood. No visible signs of blood were found and a number of discrete tests for blood were performed but no blood was detected. More extensive chemical tests were not performed because they might have reduced the chance of obtaining DNA profiles. 499. Thus it is clear that no blood was ever seen by any of those who had examined the baffles on any baffle beyond the eighth one from the bullet exiting end and nor have any tests revealed the presence of blood beyond this point. Dr Lincoln in April 1986 specifically tested all the baffles for blood and found no trace of any beyond the eighth baffle.
500. In these circumstances we find it impossible to conclude that any particular finding of DNA necessarily came from blood. The possibility that blood was the source of any or all of the DNA recovered remains because firstly the LCN DNA tests may be more sensitive than any of the tests carried out for blood. Further detection of blood by testing may not be possible as a result of the blood degrading through the passage of time, exposure to heat or exposure to moisture.
501. Thus we think that the CCRC's conclusion that the DNA was likely to have come from "the blood found in the silencer at the time" which was said to be justified "because it was found deep within the silencer" cannot be sustained. The DNA was certainly not from the flake of blood removed for blood grouping purposes and whilst some or all of the DNA that was found within the moderator may have originated from blood, a conclusion that it all did is not one that can be properly drawn.
502. That leads to the next major consideration, namely, how could the DNA, whether from blood or some other bodily fluid, have got into the moderator otherwise than as a result of back splattering in the course of the killings. This raises significant issues of contamination. These were dismissed somewhat readily by the CCRC but it seems clear to us they either failed to establish the full history of the moderator after its discovery or alternatively ignored important aspects of that history. In the passage already quoted the Commission considered the "record of handling of the silencer by the scientist" and concluded that no contamination from the scientist was "likely to have been found that far down inside". That conclusion certainly ignores, at the very least, the examination by Dr Lincoln who removed all the baffles and tested them all so that contamination of baffles, whether deep inside or not, was a possibility. Even more importantly it failed to consider the use made of the moderator as an exhibit at trial where no sort of precautions would have been taken.
503. Mr Webster the defence expert deals in some detail with the aspect of contamination in his report dated the 22 September 2002 between paragraphs 60 and 110. That passage included:
"66. LCN DNA profiling is extremely sensitive. This can limit the relevance of results obtained by the technique; LCN DNA profiling can detect minute traces of DNA not relevant to the incident in question.
67. LCN DNA profiling can detect traces of DNA originating from individuals involved in the incident in question, but which has been transferred from one location to another after the incident.
68. LCN DNA profiling will often detect DNA completely unrelated to the crime. It sometimes detects DNA originating from people who had dealings with the exhibit before and after the crime and DNA from people involved in the manufacture of reagents and test equipment.
69. These characteristics of LCN DNA profiling often limit the relevance of results obtained when applied to any case. In my opinion, there are specific features of this case that render the results obtained completely meaningless (our emphasis added).
70. There appears to have been opportunity for DNA originating from individuals involved in the incident to be transferred from other sites into the sound moderator, and many opportunities for DNA from other individuals not connected with the incident to be deposited inside the sound moderator because of the way it was handled after the crime.
71. The destruction of reference samples taken from Ralph and June Bamber causes further difficulties. If these were still available, it would be possible to determine whether the DNA found in the sound moderator originated from them or originates from individuals unconnected with the incident.
72. Even given these limitations of LCN profiling, I do consider that the tests were worth attempting. The results obtained would have been of value if the distribution of DNA within the sound moderator detected by the LCN DNA profiling test reflected the distribution of blood within the sound moderator when it was originally tested. Unfortunately they do not.
73. Indications of blood were originally detected on the end cap, the washer, the first eight baffles and the screw threads at the end of the sound moderator. No blood was detected on the remaining nine baffles.
74. Ms Grombridge reports that DNA has been detected throughout the sound moderator and states that some of the DNA within the sound moderator could have originated from Sheila Caffell.
75. Plainly, the distribution of DNA detected does not reflect the distribution of blood originally present within the sound moderator. For example, DNA has been detected on baffles 13-17 where no blood had previously been detected.
76. Therefore, some action not necessarily associated with the deposition of blood must have caused DNA to be transferred to various areas of the sound moderator, including DNA that could possibly have originated from Sheila Caffell.
77. There appears to have been many opportunities for DNA from a variety of sources to be deposited on and in the sound moderator and for DNA to be transferred between different areas of the sound moderator as a result of the way the sound moderator was handled after the incident."
504. Mr Webster then reviewed in detail the history of the handling of the moderator and the various opportunities for contamination. He considered the fact that Dr Lincoln had taken out all the baffles and tested them all. He referred to the fact that both Mr Hayward and Mr Fletcher had handled the moderator in the witness box, a place where other exhibits were produced without any precautions being taken to avoid contact. He pointed to the fact that the judge specifically told the jury that they could "empty the baffles out later" and that it could not be established what use had been made of the moderator by the jury during their deliberations or what other exhibits may have been in their possession. He observed that the judge had told the jury that if they handled any of the clothing, they should put on plastic gloves for their own protection, thus giving rise to the possibility that blood stained items were examined by the jury with no precautions being taken to ensure that if they then went to handle the baffles there was not contamination.
505. Mr Webster concluded at paragraph 102:
"The CCRC, in their statement of reasons, more or less excluded the possibility of contamination. In my opinion, the Commission was wrong to do so."
506. We have no doubt at all that if this evidence had been placed before a jury, they would have concluded, as we do, that in accordance with the emphasised part of Mr Webster's report quoted above, the DNA testing results were rendered completely "completely meaningless".
507. Thus we are satisfied that the DNA evidence does not lead to any conclusion that the verdicts were unsafe. They do not in any way establish how June Bamber's DNA came to be found in the moderator many years after the trial. Even if one were to reject the possibility of contamination and conclude that June Bamber's blood got into the moderator during the shooting, that would not mean that Sheila Caffell's blood was not in the silencer. The flake of blood that was group tested was independent of the DNA found on the baffles which was attributed to June Bamber. The evidence about the blood testing is not, in our judgment, in any way diminished by the DNA findings, even if one ignored the whole issue of contamination at a later date.
508. In our judgment having reviewed the whole of the evidence about the blood, there is nothing to suggest that the evidence of Mr Hayward in this regard is wrong. The evidence did point to the blood being that of Sheila Caffell but he was right to acknowledge the remote possibility that there was a mixture of blood from June Bamber and Nevill Bamber. That possibility could only be overcome by considering the other aspects of the evidence, the lack of any blood in the barrel of the rifle, the finding of the moderator carefully put away in its proper place and all the other unrelated aspects of the case. We can find nothing to suggest that the evidence that was placed before the jury was misleading nor that the jury would not have given careful consideration to this aspect of the case. Accordingly we reject this ground.
