Forensics blunder may have been deceit

Posted: 2nd July 2013

BulletIn a ruling which limits the scope of witness immunity and threatens to open a can of worms within the criminal justice system, the Court of Appeal (the Court) has opened the way for a miscarriage of justice victim to pursue a claim in deceit against the government-owned Forensic Science Service Limited (FSSL).

Thomas Smart is seeking compensation from FSSL after a harmless 'bullet' key ring that was found at his home by police was mixed up with live ammunition before it was examined by a forensic scientist. His lawyers claim that there was a deceitful attempt to cover up the error by interfering with exhibit numbers.

Mr Smart had little choice but to admit to the strict liability offence of possessing prohibited ammunition after FSSL wrongly reported that the 'bullet' that he had bought at a car boot sale was a live round that could be used in a sub-machine gun and had been found at his home.

The mistake only came to light nine months after Mr Smart had been sentenced to a suspended four-month jail term and ordered to perform 180 hours of unpaid work. His conviction was eventually quashed after the Crown Prosecution Service accepted that justice had miscarried.

Mr Smart’s case was struck out by a county court judge in 2012 on the basis that FSSL did not owe him a duty of care and that the scientists and others who worked for it were in any event protected by the legal immunity from civil compensation claims granted to witnesses and experts in criminal trials.

The Court allowed Mr Smart’s appeal and reinstated his claims of negligence and breach of human rights which will now be given a full hearing. In a move that was instigated by the Court, Mr Smart was also granted permission to amend his case to allege deceit. His lawyers claim that exhibit numbers were altered to falsely indicate that the live bullet had been found at his address and that at least one member of FSSL staff either knew that was not the case or was 'recklessly indifferent' to the truth.

Lord Justice Moses observed: "The effect of interference with the exhibit numbers, whether it was designed originally to conceal confusion or 'mix up' or not, was the same as planting the real bullet in Mr Smart's premises. It is alarming that the course of justice appears to have been perverted by the alteration of exhibit numbers and the failure to disclose that that had occurred or any reason why it occurred."

In the light of the deceit claim, the rationale for granting FSSL witness immunity had dissipated and the judge said that any witnesses that the company chose to call at the hearing of Mr Smart’s case would have to explain and justify the handling of the exhibits and could not be protected from being questioned or from having to account for their actions.