The Paper Trail: possession of exhibits by EP and transfer to FSS

[Holly Goodhead]

During the COLP inquiry DS Davidson was asked what paperwork accompanies exhibits being transferred from Essex Police to Forensic Science Service (FSS) Huntingdon.  He makes reference to police form CID6 and HOLAB3.

It appears the CID6 is a police form and used by SoC officers to list exhibits relevant to the SoC which are subsequently taken into possession by EP.  The HOLAB3 form is a Home Office Laboratory form and used when EP submit exhibits to FSS for testing.  The form is completed in duplicate or triplicate (what determines which?) and details:

- exhibit
- given a number which in part is based on the CID6 form
- brief background to exhibit
- request what tests EP require FSS to carry out

One copy is signed by FSS and returned to EP (third copy when triplicate?)

I don't recall ever seeing these forms?  All I've seen are what appear to be standard witness statements listing exhibits.  One example being:

http://miscarriageofjustice.co/index.php?action=dlattach;topic=204.0;attach=704

http://miscarriageofjustice.co/index.php?action=dlattach;topic=204.0;attach=706

The above are various exhibits removed from the victims on 7th and 8th Aug by the pathologist and handed to EP during these two days. 

1. Based on the above I would have thought this required a CID6 form completing?

2. When the exhibits were transferred from EP to FSS what happened to the HOLAB3 form?

3. Why was the above dated 26th November and refers to a statement (pathology report) dated 30th September.  This appears to be the form used to take witness statements and is left unsigned. 

4. What would be the purpose of 3 if forms CID6 and HOLAB3 were completed as per the process set out by DS Davidson?

I've also noticed what appears to be a witness statement by Malcolm Fletcher listing various exhibits again left unsigned.  I don't see the purpose of these witness statements when according to DS Davidson the process is CID6 and HOLAB3.

Wow I am sounding super bureaucratic 

[anglolawyer]

Well, I think this is an important subject and I don't claim to know the procedures inside out but you will have heard about 'chain of custody'.   For those who don't know, the term denotes the way in which the handling of an exhibit is tracked from collection at the scene all the way to production at court so that if anyone ever asks how we know that bullet is the one that was found under the sofa (or whatever) there will be an answer.   The longhand answer would entail putting each witness who handled the item  in the witness box in sequence and getting each one to say how and when they acquired the item and what they did with it.

Obviously, such a system is not going to depend on memory so there needs to be a paper record and that record should obey logical and consistent rules that don't vary from case to case, item to item, or witness to witness.

So, to start with, the witness who collects an item will assign an exhibit number consisting of his or her initials and a sequential number - PV1, PV2 etc.   When the exhibit is handed over, say to a detective, it will need a further annotation, I'm not sure what, but it should be something that makes clear the detective was not the first finder.   So, thinking further along, if an exhibit is going off to the Home Office lab, it makes sense to use a form detailing the sender, describing the item, giving a date and stating what information is required.   The duplicate (or triplicate) copy that's sent back is the receipt and evidences the chain of custody.

We would need to see the relevant manual to follow all the steps but it's not hard to see what the essential are, or that there is nothing inconsistent about Peter Vanezis 'producing' exhibits in a witness statement which then go somewhere for testing under cover of a specially designed form.

[Holly Goodhead]

Well, I think this is an important subject and I don't claim to know the procedures inside out but you will have heard about 'chain of custody'.   For those who don't know, the term denotes the way in which the handling of an exhibit is tracked from collection at the scene all the way to production at court so that if anyone ever asks how we know that bullet is the one that was found under the sofa (or whatever) there will be an answer.   The longhand answer would entail putting each witness who handled the item  in the witness box in sequence and getting each one to say how and when they acquired the item and what they did with it.

Obviously, such a system is not going to depend on memory so there needs to be a paper record and that record should obey logical and consistent rules that don't vary from case to case, item to item, or witness to witness.

So, to start with, the witness who collects an item will assign an exhibit number consisting of his or her initials and a sequential number - PV1, PV2 etc.   When the exhibit is handed over, say to a detective, it will need a further annotation, I'm not sure what, but it should be something that makes clear the detective was not the first finder.   So, thinking further along, if an exhibit is going off to the Home Office lab, it makes sense to use a form detailing the sender, describing the item, giving a date and stating what information is required.   The duplicate (or triplicate) copy that's sent back is the receipt and evidences the chain of custody.

We would need to see the relevant manual to follow all the steps but it's not hard to see what the essential are, or that there is nothing inconsistent about Peter Vanezis 'producing' exhibits in a witness statement which then go somewhere for testing under cover of a specially designed form.

Yes I agree it is important albeit rather boring and tedious.  I have no idea how it works.  I'm not necessarily saying there's anything sinister with Dr Vanezis' statement but I might have expected it be drawn up by his office rather than EP.  The officers were present at PM and Dr V handed the various exhibits over on 7th and 8th Aug.  Yet the WS is dated 25th November and left unsigned.

Here's a similar WS from Malcolm Fletcher listing exhibits received.  And yet according to DS Davidson the process involves a HOLAB3 form not a WS.  And according to DS Lovell below, police liaison officer at FSS, he was responsible for accepting exhibits from EP and checking them in.  They would not go direct to the likes of Malcolm Fletcher a scientist.   

http://miscarriageofjustice.co/index.php?action=dlattach;topic=6629.0;attach=5756

http://miscarriageofjustice.co/index.php?action=dlattach;topic=6629.0;attach=5758

http://miscarriageofjustice.co/index.php?action=dlattach;topic=6629.0;attach=5760

Perhaps I'm asking the obvious, and this has been explained elsewhere, but it seems these exhibits were not handed over until 30th August and 20th September why?   

There's an interesting point in the CoA doc re the rejected hand swabs that makes reference to DS Lovell, police liaison officer at FSS, and the process for checking in exhibits.  I haven't had chance to read it properly yet.  I'm not interested in the hand swabs per se more the process of handling the exhibits and the accompanying paperwork.  I've highlighted HOLAB 3 in bold but it might b worth reading all.  I've had to split it over two posts as it exceeds the max 20000 characters per post!

Ground 1a – hand swabs from Sheila Caffell 175. Ground 1 as presented to the court can conveniently be split into two distinct parts and we will consider each in turn. Each part relates to hand swabs taken from Sheila Caffell during the post-mortem examination and the subsequent examination of these swabs. The first part alleged that information was withheld from the defence about the examination of these swabs and suggests that this was not merely the result of inadvertence. It is contended that the evidence demonstrates impropriety by the police in deliberately concealing the true picture. The further suggestion is made that the police may not have submitted the genuine swabs but rather obtained similar swabs from some other source and substituted them for the swabs taken from Sheila Caffell in order to produce a result favourable to the prosecution.

176. It is necessary to start by examining those parts of the evidence which are not in issue. It is clear that the police from an early stage appreciated the possible significance of the state of Sheila Caffell's hands and of anything that might connect them with the use of the gun. To preserve any available evidence, the hands were covered with plastic bags before the body was removed. When the post-mortem examination of the bodies of Nevill Bamber & Sheila Caffell took place later that day an officer, DC Hammersley, took swabs from the hands of Sheila Caffell using a special kit made for taking samples for testing for firearm residues. He labelled the swabs with the reference DRH/33. There is evidence from which it can be established that these samples were taken at 3.15 p.m. on 7 August.

177. At trial Brian Elliott, a scientist from the Home Office Forensic Science Laboratory, gave evidence that the item DRH/33 described as "Swabbing Kit – hands of Sheila Caffell" had been received at the laboratory on 13 September 1985. He said that tests had been carried out for the presence of lead and that only "very low levels of lead have been detected on the two hand swabs". He further reported that tests had been carried out on two members of the laboratory staff who had loaded eighteen cartridges, similar to those used to shoot those who died at White House Farm, into the magazine of the rifle, and "significantly higher levels of lead" had been detected. Clearly if this evidence was right it cast doubt upon Sheila Caffell having loaded the cartridges into the gun and thus to her having killed the others and then herself.

178. The defence in part countered this evidence by reference to the ritualistic cleansing theory to which we have made reference.

179. Mr Turner, however, points to a number of documents that he submits, if known about by the defence, would have altered the approach taken to this aspect of the evidence and might well have avoided the need to embark upon the ritualistic cleansing theory, which from the summing up, did little to impress the trial judge, and therefore, in all probability, the jury.

180. The first document to which reference is made is a form that accompanies a submission of an item or items to the laboratory by the police (known by its document reference as a HOLAB 3 form). The form in question, completed by DS Davidson, shows that the item DHL/33 was submitted on 9 August 1985 for testing for firearms residue with a submission serial number of 17. The form is marked "Item 17 not accepted at Lab". This is a document that came to light as a result of the City of London Police inquiry.

181. Light is thrown on the circumstances of the rejection by a further document again coming to light in the same police inquiry. The document is a message memorandum from the Home Office Science Laboratory file recording the passing of a message from DS Lovell, one of the police liaison officers at the laboratory responsible for receiving items for examination, to DCI Wright, one of the officers then responsible for the inquiry into the shootings. It reads:

"Advised that item 17 not accepted at Lab due to contamination risk as it came into Laboratory with firearms (not connected with this case). D/C/I Wright not pleased with circumstances of rejection."

182. The next documentation said to be of significance in this regard are copies of the HOLAB 3 forms that accompanied the swabs when they were submitted again on 13 September 1987. When the forms were originally prepared using a typewriter, there were two items listed for submission, a blood sample and a Citroen motor car. They were numbered as Serial Numbers 73 and 74, the numbers running on from earlier submissions. On the forms there had been the hand-written addition of a third item, the hand swabs from Sheila Caffell. This item has been given the next consecutive serial number 75. Two other features of the forms are said to be significant. The first is that on each copy the description of when and where the samples were taken records the time of taking as 11 a.m. on 7 August. The second, and the one upon which greatest reliance was placed, is that whilst two of the three copies that have been produced records the item's identifying mark as DRH/33, the third gives it as DRH/44.

183. Mr Turner made the point that nowhere does the form record that the submission is a resubmission of an item and that the fact that the item has been earlier rejected is not in any way made apparent. He drew to our attention another form from the same inquiry upon which the fact that the rifle and the sound moderator were being resubmitted was made clear.

184. Mr Turner next drew attention to the notes made at the laboratory during the examination of the swabs. The notes made no reference to the earlier submission and hence, it is suggested that one can conclude that the scientist was unaware that he was examining an item rejected on the earlier occasion by the laboratory.

185. Mr Turner submits that there is evidence that the fact of the rejection was widely known to investigating officers, to some members of the forensic science service and to the office of the Director of Public Prosecutions ("the DPP"), responsible for the preparation of this case for trial. He points to a memorandum of a meeting at the forensic science laboratory on 18 September 1985, before the examination of the hand swabs had been done. Amongst those present were Detective Superintendent Ainsley, by then in charge of the investigation, and DCI Wright to whom the original message about the rejection had gone and whose displeasure is recorded. The memorandum of the meeting made by the firearms examiner, Mr. Fletcher, includes:

"Statement to explain why handswabs not examined."

186. Mr Turner then drew attention to two reports made by Detective Superintendent Ainsley for submission to the DPP. In an interim report dated 23 September 1985, Mr Ainsley records that the handswabs were submitted but were rejected by the laboratory. In the second and final report, which starts by suggesting that the writer will cover all the points made in the interim report "thereby negating the necessity to refer back", there is no reference to the rejection of the handswabs and the only reference to this item reads:

"… Mr Elliott, also gives evidence of examination of hand swabs taken from Sheila Caffell and of tests carried out thereafter which prove yet again that Sheila did not handle the bullets used that night."

187. A further report by Mr Ainsley is relied upon. The report is headed "Initial Investigation". It makes reference to "matters raised at trial", and bears a date 20 October 1986, that is during the currency of the trial. There is no evidence of the purpose for which it was prepared or to whom it was addressed. From its contents, it appears most likely that it was directed at the criticisms being made at trial of the inadequacy of the initial inquiry. Since 20 October was the day before Mr Arlidge QC, leading counsel for the crown made his final speech to the jury, it seems most likely that the report was written for the use of prosecuting counsel. It contains the following reference to the handswabs:

"The hands – were swabbed – swabs rejected by the laboratory. Later raised by D/Superintendent Ainsley in conference at the laboratory when the laboratory again stated that it was too costly to do and that it would be expected to show a positive result as the body of Sheila was in a room contaminated by gunfire. D/Superintendent Ainsley made issue that the swabs should be examined and if not done he wished a statement to explain why it had not been done. As a result they were examined and found to be virtually negative of residue, i.e. lead, oil and propellant."

188. Mr Turner submitted that the three reports were evidence that Mr Ainsley was a party to a conspiracy to conceal the fact of the rejection from the defence and, therefore, from the jury. He contended that it was significant that there had been mention in the interim report of the rejection but none in the final report. He suggested that the court could infer that Mr Ainsley had deliberately included the passage saying that the full report "negated the need to" read the interim report so that the rejection would not be noted by those responsible for the prosecution. He further submitted that the passage in the report prepared during the trial again showed Mr Ainsley seeking to hide the true position by giving a false explanation for the rejection suggesting that it was a matter of cost rather than contamination.

189. Mr Turner invites the court to conclude that the circumstances of the re-submission demonstrate a determination by the police to have the swabs examined by the laboratory whilst concealing the earlier rejection. It is suggested that a number of features of the documentation should lead to this conclusion. The HOLAB 3 form describing the item as DHL/44 on its re-submission had a number of features that would have concealed the fact that it was the same item that had earlier been rejected. The wrong identifying mark had been given concealing its true identity as DRH/33. It had been given the serial number 75 which differed from the original submission where it was serial number 17. The description of when the swabs had been taken on the form suggested that it was at the 11 a.m. on 7 August so that it had the appearance of being an earlier sample to DRH/33 which was in fact taken at 3.15 p.m. on that day. There was no mention on the form of it being a resubmission. Thus, it is said that anyone looking at the form would be misled into thinking that they were examining a quite distinct set of swabs.

190. The notes of the scientist showed that the item was handed directly to the scientist and it is suggested that this must have been done to bypass DS Lovell who had been involved in the earlier rejection.

191. The final part of the evidential material relied upon on behalf of the appellant in this regard are records that relate to exhibits gathered during the inquiry. The first such item is the Major Incident Property Register. This records in respect of item DRH/33 under a heading of where stored "Retained by S.O.C." and then apparently by way of a subsequent addition "13/11 F/cell". The only other recorded information is that the item was destroyed in 1996. The second document to which reference is made is a Scenes of Crime Exhibit List. This records that DRH/33 went "To lab. 9/8/85".

192. It is on this material that Mr Turner advances the possibility that DRH/33 was never examined in September 1985 and that either further swabs were taken from Sheila Caffell's body or alternatively swabs which had never been taken from Sheila Caffell at all were substituted. Mr Turner's submission as it appears in his skeleton argument is:

"It is submitted that had DRH/33 been the swabs examined, firstly the exhibit books would have recorded the fact of submission on 13/09 and secondly, if they were examined it is unlikely they would have existed in February 1996, to be destroyed. It is submitted that the overwhelming probability is that a second clean set of hand swabs were submitted in place of DRH/33."

193. With every respect to Mr Turner that seems a very flimsy basis upon which to consider making the very serious allegations of serious criminal misconduct that he has made. It pre-supposes that a resubmission of the item would of necessity be recorded on one or other of these records; it overlooks the fact that there is no record on either document of the return from the laboratory of the items in August to the custody of the keepers of either record; it suggests with no sort of evidential basis that neither the item nor the remaining parts of it would have been returned by the laboratory following examination; and it puts forward the inherently unlikely proposition that after the substitution of a false set of swabs, the original swabs were retained so that they could be placed in the female cell in November and be destroyed in 1996 even though it would have been known to the scientists that the examined swabs had been destroyed during their examination.

[Holly Goodhead]

194. Having looked closely at all the available documentation, it was the view of the court that whilst superficially the proposition that there might have been an element of deceit of the scientists in the first place and thereafter of the defence and the jury by the deliberate concealment of the fact of the earlier rejection might be tenable, any more rigorous examination of the facts showed that the proposition was unsustainable. We will explain shortly why we reach such a conclusion. However, the court was conscious of the fact that in cases where a miscarriage of justice is alleged, the truth may only be revealed by the fact that a tip of the iceberg emerges above the surface. Accordingly, we decided out of an excess of caution, to grant an application made by Mr Turner that he should have the opportunity of cross-examining witnesses who could give evidence about these matters. The court, therefore, required three witnesses to give evidence and having been called, each was cross-examined by Mr Turner and questioned further on behalf of the prosecution by Mr Temple. Their evidence was so transparently right that Mr Turner did not, even when reminded that he had not done so, feel able to challenge the evidence of one of those who must have been implicated if the sort of allegations of gross impropriety that he had made in opening the case were true.

195. The first of these three witnesses to give evidence was Peter Wingard, who was a Senior Scientific Officer at the laboratory at the relevant time, later became a Forensic Service Manager for 4 or 5 years and is now retired. He had been responsible for examination of the laboratory records when a request for information was sent to the laboratory by the appellant personally. He had subsequently supplied the available documentation to the City of London police inquiry, from where it was subsequently made available to the appellant's legal advisers. Mr Wingard was able to give evidence of the system of submissions to the laboratory at the time, and also to confirm which of the documentation before the court would have originated from the laboratory.

196. Mr Wingard explained that the rejection of the item would be made by the police liaison officer acting upon standing instructions that where swabs were submitted having been in the vicinity of firearms they should be rejected. The liaison officer would not necessarily consult a scientist before making such a decision. He rejected the suggestion that once rejected in this way, there would be no way in which the laboratory would examine such items thereafter if it was aware that they had been resubmitted. He explained that there was a significant difference between an examination of the swabs required to provide evidence that a person had discharged a firearm where the testing could as a result of the contamination produce a false result suggesting that the person had had contact with guns, and a test the purpose of which was to provide evidence that a person had not been in contact with a gun. In the latter case the issue of contamination ceased to be a factor since it could never decrease any findings only add to them.

197. Mr Wingard was asked whether in any event he would expect to see a record of the rejection in the statements provided by the scientists. He said that it would very much depend on the reason for the rejection and its possible effect on the outcome of the tests. It was not normal to recount the history unless it had a bearing on the evidential value of the conclusions. If rejection might in any way invalidate conclusions that might be drawn from the evidence of the tests, then he would expect that it would be recorded. However, that was not the situation here since there was no way in which contamination by proximity to firearms could have decreased the quantity of lead found on the swabs from Sheila Caffell's hands. The rejection, and the reasons for it were, therefore, not relevant to the inference suggested from the testing that Sheila Caffell had not been responsible for the repeated handling of the bullets. He made clear that the testing was for the presence of lead, and was not testing for firearms residue as such.

198. Mr Wingard said that it was commonly the case that items were resubmitted to the laboratory with a different serial number to the original submission, and scientists paid little regard to this number. The identifying feature upon which they relied was the Identifying Mark. This would first and foremost be on an exhibit label which would be attached to the item itself on submission, and would also appear on the HOLAB 3accompanying the submission.

199. The next witness called by the court was DS Lovell, the liaison officer at the laboratory involved with the August rejection. He explained that no item would be submitted to the laboratory without first being seen by him or one of the other liaison officers. Where a scientist received an item directly as had happened with the swabs on resubmission, the scientist would come to the reception area and collect the item directly but the liaison officer would still be responsible for checking it in. It would simply avoid the item going through the normal internal process of delivery to the scientist but it would not avoid the liaison officer being involved in checking it in. He had played such a part on the resubmission because his writing was on one of the copies of the [HOLAB 3 form. Thus the suggestion that the swabs had gone directly to the scientist to avoid DS Lovell so that he would not notice that it was a resubmission was clearly wrong.

200. DS Lovell explained that three copies of the HOLAB 3 would accompany the item to the laboratory. The laboratory would retain two copies and the third would be endorsed by the receiving officer and handed back to the person delivering the item by way of receipt. A part of his responsibility would be to check the items received by the laboratory against the HOLAB 3 form by reference to the identifying mark that they bore. He had not noticed a discrepancy in this regard on this occasion either between the item and the HOLAB 3 forms or between the three copies of the forms. He looked at the three copies of the form that have been traced. Each had been stamped by him with his personal stamp and with the laboratory date stamp. Examination showed that two of the copies of the form gave the identifying mark as DRH/33 and one gave it as DRH/44. He could be sure that he had received each from the stamps. The DRH/44 was one of the two copies retained by the laboratory since it bore hand-written notes that he had made.

201. In relation to the rejection in August, DS Lovell explained that he would have consulted a scientist before rejecting the item. He could not remember the circumstances of its resubmission because it was so many years after the event but because of the nature of the case and the contact that there had been between the police and the laboratory relating to it, he thought that he may well have been expecting it back when it arrived.

202. DS Lovell explained that when items relevant to a case were referred to the laboratory, the case would be assigned a reference number. All documentation would be labelled with that number and kept on that file. Exhibits submitted for firearm examination would be given a distinct number and a separate file would be opened for documents relating to that examination. It is clear from the items recovered that all the documentation within the laboratory was dealt with in accordance with that system and thus could readily be produced when queries were raised some years later.

203. The third witness called in this respect was DS Davidson. DS Davidson was responsible for completing the HOLAB 3 forms relevant to the resubmission. Since he was the one who had written on the one copy DRH/44 and on the other two DRH/33, it must follow that since he would know that all three should bear the same identifying mark, if there was a police conspiracy to deceive the laboratory and others, he must have been a party to that conspiracy. The only other possible explanation apart from the conspiracy allegation for the difference was an inadvertent slip on his part.

204. DS Davidson explained that when a submission is made, four copies of the form HOLAB 3 are completed. Three go to the laboratory and the fourth is necessary because the officers do not submit items directly to the laboratory. They submit the items to the Essex Police headquarters and the fourth copy is for use at headquarters. Arrangements are then made for the onward transfer of the items from that central location to the laboratory. Thus items from a number of cases may be submitted at the same time. Clearly that happened here because the rejection of the swabs came about because items unrelated to this case were transported at the same time. Bearing in mind how significant an inquiry this was relating to five shootings, one can well see why DCI Wright would be displeased that the action of those at headquarters had caused the rejection of an item that the investigating officers wanted examined.

205. DS Davidson said that he could remember that having already typed the two items on the list, he received a telephone call, he thought from DCI Wright, to add as a third item, the swabs. He could remember that there was some urgency about the matter but he could not recall the detail of the conversation. He did not think that he was aware that it was a resubmission and he was unaware of anything concerning the rejection. He had added the swabs to each of the copies. He was unaware that he had put the wrong identifying mark on one copy and it was simply a slip on his part. He was asked why each of the forms recorded that the swabs had been taken at 11 a.m. when DRH/33 had been taken at 3.15 p.m. He said that it was an error that he had made and he explained that he had available to him forms that he had completed as the items were gathered (CID/6 forms), these correctly recorded the time as 3.15 p.m. but showed other items recovered at 11 a.m., and in his hurry he had misread the forms.

206. Having received the explanations given by the witness, Mr Turner completed his cross-examination without suggesting to the witness any impropriety on his part and without challenging the explanations that had been given. Mr Temple, on behalf of the prosecution, queried whether this was inadvertence on the part of Mr Turner or whether in the light of the evidence given, Mr Turner now accepted that the allegations of improper conduct could not be sustained. Mr Turner told the court that it was not through inadvertence. The court was not surprised by Mr Turner's altered position because the evidence appeared to us to be manifestly truthful. Thus the calling of the witnesses far from supporting the conspiracy had caused the appellant's counsel to see that it could not be maintained.

207. Mr Turner asked the court to call one further witness in this regard, the scientist who had examined the items. We queried what he hoped to achieve by cross-examination of the witness and he indicated that he wanted to establish that the witness was unaware of the earlier rejection of the swabs when he examined them. That evidence was available in statement form and we were prepared to accept that proposition without the need to hear oral evidence. However, it has to be said that any proper examination of the file by the scientist would have revealed that fact because it is clear from the laboratory notes that the scientist had checked the identifying labels of the item and was fully aware that he was dealing with DRH/33 in respect of which there was information on file about its earlier rejection.

208. The allegations made in opening that there was evidence to show gross criminal misconduct by the police in respect of the swabs have thus turned out to be wholly groundless to the point where the appellant's counsel felt no longer able to maintain them. Quite apart from the evidence of DS Davidson, there were a number of reasons why these allegations were patently wrong:

i) The evidence of the contamination was not in any way damaging to the prosecution case. As Mr Wingard pointed out, it could not, even if known, adversely affect the inference that the prosecution sought to draw from the tests. If the swabs had become contaminated that would point towards Sheila Caffell having had contact with the gun rather than away from it. Any results, therefore, might give an increased reading that might favour the defence but could not adversely affect the defence. Whilst we accept that a corrupt police officer might go to extreme lengths to cover up evidence helpful to the defence, it makes no sort of sense for such an officer to commit serious criminal offences to hide evidence that which is either neutral or favours the prosecution.

ii) The suggestion that Detective Superintendent Ainsley sought to conceal the fact of the rejection in his final report cannot be right. He had raised it with the laboratory staff at the meeting on 18 September requiring a statement to be made to explain why the hand swabs had not been examined. Since the hand swabs were at the laboratory awaiting examination at the time, this is inconsistent with the allegation that he was trying to hide the earlier rejection from the scientists.

iii) There would be no point in submitting a HOLAB 3 form with the false reference to DRH/44, whilst at the same time submitting another copy with its true identifying mark recorded and with the item labelled with the correct mark, as it clearly was from the scientist's note. A moment's thought would have caused any police officer to realise that the examining scientist would inevitably look at the exhibit label, not least to sign it so that he could later identify the item that he had examined.

iv) The documentary evidence about the keeping of the swabs did not lead to the suggested inference. It did not record the return of DRH/33 after the initial rejection and DS Davidson said that he had not seen the item again after it was sent to headquarters in August. Between August and resubmission, it must, therefore, have been at headquarters and as such would not have appeared on the documents produced. 209. We have not the slightest doubt that the only failing by the police revealed in their dealings with the swabs are some relatively minor form completing mistakes by DS Davidson. On these relatively minor failings the whole edifice of a conspiracy theory was constructed and unsurprisingly when tested it came crashing down.

210. Thus the only true complaint that can be made is that the defence were not told at trial that the initial submission of the hand swabs had been rejected. We have to ask ourselves whether this in any way invalidates the jury's findings. We ask ourselves what possible use could have been made of that fact if it had been known to the defence. They could not have used it to challenge the findings from the test of the swabs because, as already explained, it could not have affected the results in any way adverse to the interests of the appellant. They could not have used it to make any collateral attack on the care taken by the officers in the case because the sending of the item at the same time as other items unconnected with the case was in no way the failing of the officers involved in the inquiry but rather that of the officers dealing with the onward transmission at headquarters. Thus we are satisfied that even if this information should technically have been disclosed, the failure to do so can have had no impact upon the jury's verdicts.

211. In terms of the overall consideration of the police conduct, they had brought the matter to the notice of the lawyers handling the case on behalf of the prosecution. That is the limit of their responsibility in terms of disclosure. Once the lawyers had been alerted as they undoubtedly were by the discussions in the presence of the DPP.'s representative at the meeting at the laboratory and by the interim report directed to the DPP the responsibility for decisions as to whether a fact that needs to be drawn to the attention of the defence is for the lawyers. Thus these matters cannot reflect on the police as being a part of some deliberate attempt to hold back information from the defence.

212. Although it is not necessary for us to go further and consider whether the prosecution lawyers were at fault since it can have no bearing on the safeness of the conviction, in fairness to them we should perhaps record that we are not persuaded that they were at fault. It was not the practice at that time routinely to produce documents as part of the disclosure process that related merely to the transmission process of items for scientific examination. They were always available for inspection both at the police station and at the laboratory if required, but the normal procedure was to await some request in this regard. This would most frequently happen when a defence expert visited the laboratory and would request sight of the laboratory file. The defence had instructed an expert to look into the firearm side of the case and he had visited the laboratory. The prosecution were, we are satisfied, entitled to assume that he had either looked at the file or that he was satisfied that it was unnecessary. However, clearly if the possible contamination might have produced results that were unfair to the accused, the whole picture would have changed and there would have been an overriding duty on the prosecution lawyers to ensure that the defence lawyers were not misled by not receiving this information. But, as we have made clear more than once that was not the situation here.

213. Thus we reject this first ground of appeal and we are equally satisfied that there is no misconduct revealed by this aspect of the case that falls to be considered when we come to ground 16, the general allegation of misconduct against the police.

Oh anglolawyer please help a damsel in distress 

Right I'm all Bambered out now.  Off for a glass of wine in the bath with a candle.

[Holly Goodhead]

Just thought here DS Davidson states the HOLAB 3 is in duplicate or triplicate:

http://miscarriageofjustice.co/index.php?action=dlattach;topic=178.0;attach=445

And here in the CoA doc he states quadruplicate:

204. DS Davidson explained that when a submission is made, four copies of the form HOLAB 3 are completed. Three go to the laboratory and the fourth is necessary because the officers do not submit items directly to the laboratory. They submit the items to the Essex Police headquarters and the fourth copy is for use at headquarters. Arrangements are then made for the onward transfer of the items from that central location to the laboratory. Thus items from a number of cases may be submitted at the same time. Clearly that happened here because the rejection of the swabs came about because items unrelated to this case were transported at the same time. Bearing in mind how significant an inquiry this was relating to five shootings, one can well see why DCI Wright would be displeased that the action of those at headquarters had caused the rejection of an item that the investigating officers wanted examined

[Myster]

I thought you'd gone for a bath?  Watch out for burning paraffin wax... it can leave a painful deposit! 

[anglolawyer]

Forgive me, HG, but I did not read the long extracts from the CA you posted.   I have read the judgment before, of course, but is there a particular point you extract from this part of it.

I think you may be slightly confused because you seem to think exhibits are either introduced into evidence by witness statement or by HOLAB3 forms whereas it's more likely that both will be used (unless HOLAB3 is itself designed to be used as a witness statement - is there a specimen somewhere we can look at?).

Going back to the chain of custody, we (the jury, as it were) want to know for each item of physical evidence: who found or collected it, through whose hands it passed all the way to trial, where it was kept at various times, what processes or tests it was subjected to and by whom?   All those transitions and operations will generate paperwork (forms, receipts, tags etc) but those things aren't evidence until a human witness exhibits them to a witness statement.   Documents (like a HOLAB3) form don't usually prove themselves.

So, I'm not presently seeing any issue arising from the existence of both witness statements and HOLAB3 forms for the same items.   It's what I would expect.

[anglolawyer]

Forgive me, HG, but I did not read the long extracts from the CA you posted.   I have read the judgment before, of course, but is there a particular point you extract from this part of it?

I think you may be slightly confused because you seem to think exhibits are either introduced into evidence by witness statement or by HOLAB3 forms whereas it's more likely that both will be used (unless HOLAB3 is itself designed to be used as a witness statement - is there a specimen somewhere we can look at?).

Going back to the chain of custody, we (the jury, as it were) want to know for each item of physical evidence: who found or collected it, through whose hands it passed all the way to trial, where it was kept at various times, what processes or tests it was subjected to and by whom?   All those transitions and operations will generate paperwork (forms, receipts, tags etc) but those things aren't evidence until a human witness exhibits them to a witness statement.   Documents (like a HOLAB3) form don't usually prove themselves.

So, I'm not presently seeing any issue arising from the existence of both witness statements and HOLAB3 forms for the same items.   It's what I would expect.

[Holly Goodhead]

I thought you'd gone for a bath?  Watch out for burning paraffin wax... it can leave a painful deposit! 

Apparently not so...see this BDSM site:

http://www.bondara.co.uk/bondage-candle-bdsm

"The wax (paraffin) of this high-quality candle burns at a lower temperature than standard candles, thus offering wax pleasure without burnings. Enjoy indulging your partner with the titillating sensation of wax on the skin".

Hmmm maybe I'll have to try it and see  &%+((£

How can we relate this new found knowledge to the bullets if at all?

OMG I'm waxing lyrical  *&*%£

[Holly Goodhead]

Forgive me, HG, but I did not read the long extracts from the CA you posted.   I have read the judgment before, of course, but is there a particular point you extract from this part of it.

I think you may be slightly confused because you seem to think exhibits are either introduced into evidence by witness statement or by HOLAB3 forms whereas it's more likely that both will be used (unless HOLAB3 is itself designed to be used as a witness statement - is there a specimen somewhere we can look at?).

Going back to the chain of custody, we (the jury, as it were) want to know for each item of physical evidence: who found or collected it, through whose hands it passed all the way to trial, where it was kept at various times, what processes or tests it was subjected to and by whom?   All those transitions and operations will generate paperwork (forms, receipts, tags etc) but those things aren't evidence until a human witness exhibits them to a witness statement.   Documents (like a HOLAB3) form don't usually prove themselves.

So, I'm not presently seeing any issue arising from the existence of both witness statements and HOLAB3 forms for the same items.   It's what I would expect.

You are forgiven 

The problem is we do not have access to all the available documents.  This forum has a fraction of what is available.  The Jeremy Bamber forum has more with JB/CT having even more.  As we know many are held under PII.  Therefore its like trying to complete a jigsaw puzzle with many pieces missing.

Anyway thanks for highlighting 'chain of custody':

https://en.wikipedia.org/wiki/Chain_of_custody

Yes 'Chain of custody' is number one but surely those involved want some protection too? Eg if I was Dr Vanezis handing over victims' biological samples and very small items that could easily be genuinely lost eg spent bullets I would want a piece of paper before EP left stating what had been handed over, when and signatures before EP physically left with the exhibits.  As it stands all that appears available is a WS dated 26th November listing what EP received.

http://miscarriageofjustice.co/index.php?action=dlattach;topic=204.0;attach=704

I have no experience of the criminal justice system but I would  imagine even 30 years ago it was quite procedural especially with regards to paperwork.  My experience of working in other industries is that many are quite sloppy when it comes to completing paperwork for a variety of reasons (usually nothing sinister) and its often not really a problem until something goes wrong and then it becomes all important.

When DS Davidson was interviewed by COLP, as part of an inquiry into claims of police wrongdoing, he was specifically asked by senior ranking officers about the paper trial.  I would expect him to have a thorough understanding since he was one of the officers responsible for managing this aspect of the case.  He stated when exhibits are transferred to FSS a HOLAB3 form is completed.  It appears this is a form designed specifically to capture certain information eg what tests EP want carried out.  Therefore I would expect to see copies of these HOLAB3 forms but I haven't seen any.  But that's not to say they aren't all present and correct and we just don't have access to them.  If it was acceptable to use WS too I would expect DS Davidson to say as much.  He didn't.
He also makes ref to the form being completed in duplicate or triplicate but in the CoA doc he makes ref to quadruplicate? 

http://miscarriageofjustice.co/index.php?action=dlattach;topic=178.0;attach=445

The reason for copying over extracts from the CoA doc is that it makes a lot of references to how exhibits are checked in to FSS and how the paperwork is dealt with.  Apparently a police liaison officer is present at FSS and is responsible for checking in the exhibits and passing them to relevant personnel.  FSS personnel do not accept exhibits direct from EP.  Again a WS exists from Malcolm Fletcher, unsigned, listing exhibits.  This may be where one scientist is transferring to another scientist?  For example we know Malcolm Fletcher examined the silencer in terms of ballistics and we know John Hayward, another scientist (biologist), examined the silencer in terms of blood. 

http://miscarriageofjustice.co/index.php?action=dlattach;topic=6629.0;attach=5756

[anglolawyer]

You are very gracious HG,   That's a weight lifted from my mind.   I agree with these parts of your post (which is not to imply that I disagree with the remainder):

1 people are sloppy (as a fanatic when it comes to file management, I would impose a summary and painful death penalty for any departure from approved procedures) so gaps and incongruities aren't always evidence of a dark conspiracy at work

2 no, we do not have access to everything.   That is indeed most frustrating and makes the case deeply resistant to analysis.   In some of the cases in which I have taken an interest, absolutely everything imaginable is online.   As a great believer in the possibility of spotting new points, even on well-trodden ground, I find it most frustrating that the scope for doing so here is limited by a paucity of paperwork.   I am, in fact, not impressed with Bamber's role in that.   I believe he could release tracts of evidence as other 'wrongly' convicted persons have.   If innocent, he should really not see any downside to doing so, especially after 30 years.

I still think you are confusing the functionality of HOLAB3 forms with that of witness statements.   They serve different functions and are not interchangeable.   It's not an either/or thing.

I tell you what would be interesting and that is trying to make sense of the paper trail for the moderator, (or moderators - as Bamber claims).   If you want to dig into that I am happy to join in and try to figure it out no matter how boring and tedious it gets ha ha.

[anglolawyer]

Yes I agree it is important albeit rather boring and tedious.  I have no idea how it works.  I'm not necessarily saying there's anything sinister with Dr Vanezis' statement but I might have expected it be drawn up by his office rather than EP.  The officers were present at PM and Dr V handed the various exhibits over on 7th and 8th Aug.  Yet the WS is dated 25th November and left unsigned.

I would not expect PV to be drawing up his own witness statements.   Usually it is the person conducting litigation who does that (the police or CPS in this case).   They are the ones who know in what form and style and what content is required for the case they are pursuing.  That we have an unsigned copy may or may not be interesting.   It depends where this forum got its documents from (A question I keep meaning to ask John, in fact).   It is probably not significant at all, since if it were, it would doubtless have surfaced at the 2002 appeal.

Here's a similar WS from Malcolm Fletcher listing exhibits received.  And yet according to DS Davidson the process involves a HOLAB3 form not a WS.  And according to DS Lovell below, police liaison officer at FSS, he was responsible for accepting exhibits from EP and checking them in.  They would not go direct to the likes of Malcolm Fletcher a scientist.

I have now read the vast tract you cut and paste from the CA judgment.   I continue to think you are confused in thinking there should either be a HOLAB3 or a witness statement.

[Holly Goodhead]

I would not expect PV to be drawing up his own witness statements.   Usually it is the person conducting litigation who does that (the police or CPS in this case).   They are the ones who know in what form and style and what content is required for the case they are pursuing.  That we have an unsigned copy may or may not be interesting.   It depends where this forum got its documents from (A question I keep meaning to ask John, in fact).   It is probably not significant at all, since if it were, it would doubtless have surfaced at the 2002 appeal.

I agree I would not be expecting PV to draw up his own WS ie on his own letterhead.  What I am saying is that I would not expect him to hand over various exhibits to anyone intending to remove them from site until he received a receipt for such.  Other than the WS I'm unable to locate any such document so I guess my thinking is that his WS was a sort of receipt for the exhibits if that makes sense!  And the fact it is dated 26th November makes no sense to me.  Some of the exhibits were tiny eg bullet fragments which could easily get lost, misplaced.  Whose liability then if anything goes missing?  EP get back to station, start going through the exhibits and find a small item missing.  EP say well the pathologist didn't hand it over.  The pathologist says yes I did hand it over.  If I was a pathologist I would not be happy to hand anything over without a receipt setting out exactly what had been handed over.  Perhaps EP did hand over some receipt or PV's pa drafted something up which EP signed before leaving and it just isn't available to us.

I have now read the vast tract you cut and paste from the CA judgment.   I continue to think you are confused in thinking there should either be a HOLAB3 or a witness statement.

According to you AL I live in a permanent state of confusion  *&*%£ And yet with regard to the point you make I think we are in agreement ie they are not interchangeable.  When exhibits are transferred to FSS a HOLAB3 form should be completed.

Please can you use the quote system so that it shows the date and time of my post.  If you require assistance please pm me and I will talk you through it.  Thank you 

[anglolawyer]

According to you AL I live in a permanent state of confusion  *&*%£ And yet with regard to the point you make I think we are in agreement ie they are not interchangeable.  When exhibits are transferred to FSS a HOLAB3 form should be completed.

Please can you use the quote system so that it shows the date and time of my post.  If you require assistance please pm me and I will talk you through it.  Thank you 

Sorry, I know how to do that but took a short cut this time.

You are fretting about nothing IMO.   Alternatively, you are speculating, in the absence of vast quantities of case documentation, that a receipt does not exist when no issue AFAIK arises on whatever was collected from PV.   I am quite sure any such transportation of exhibits will have been accompanied by a record of some kind.   A case like this one would soon descend into utter chaos otherwise.

Have you seen the attachment before?   I have no idea where I got it but it's been on my computer for a while.   It may be interesting to focus on it as it's in the neighbourhood of for area of interest but is also concerned with something rather important - the moderator(s)

ETA I posted it twice.   Apologies.   It should only be one attachment.

[Holly Goodhead]

You are very gracious HG,   That's a weight lifted from my mind.   I agree with these parts of your post (which is not to imply that I disagree with the remainder):

1 people are sloppy (as a fanatic when it comes to file management, I would impose a summary and painful death penalty for any departure from approved procedures) so gaps and incongruities aren't always evidence of a dark conspiracy at work

2 no, we do not have access to everything.   That is indeed most frustrating and makes the case deeply resistant to analysis.   In some of the cases in which I have taken an interest, absolutely everything imaginable is online.   As a great believer in the possibility of spotting new points, even on well-trodden ground, I find it most frustrating that the scope for doing so here is limited by a paucity of paperwork.   I am, in fact, not impressed with Bamber's role in that.   I believe he could release tracts of evidence as other 'wrongly' convicted persons have.   If innocent, he should really not see any downside to doing so, especially after 30 years.

I still think you are confusing the functionality of HOLAB3 forms with that of witness statements.   They serve different functions and are not interchangeable.   It's not an either/or thing.

I tell you what would be interesting and that is trying to make sense of the paper trail for the moderator, (or moderators - as Bamber claims).   If you want to dig into that I am happy to join in and try to figure it out no matter how boring and tedious it gets ha ha.

I would be more than happy to look at the paper trail connected with the silencer (and blood samples since I don't see the two being mutually exclusive  ) but I think it will be a pointless exercise since we know for certain we only have a fraction of the available documents.

I have previously posted an excerpt from CAL's book relating to this:

CAL's book P232:

"Jones made no note of the silencer in Witham's miscellaneous property register, assuming that it would 'go into the Scenes of Crime system and [be] recorded in that fashion'.  DI Cook regarded the omission as useful 'because it totally minimised the handling of the silencer by others, which would have occurred in the registering of it in property books'."

This begs the question as to whether the staff at FSS were aware of its history. 

I'm not sure we can hold JB responsible for the lack of documents?  He does not have access to the internet and is therefore reliant on others to upload them.  I daresay the other cases you are thinking about above are not without family support?  JB is without any family support and is therefore beholden to others whose judgement he has to rely upon.  Not an enviable position to find oneself in!