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Last Updated: Friday, 6 August, 2004, 13:10 GMT 14:10 UK
'Rape' officer clears his name
Parliament Square
The case was referred to the Court of Criminal Appeal
A former policeman has been cleared of rape after protesting his innocence for 15 years.

Judges at the Court of Criminal Appeal in Edinburgh ruled that Brian Kelly, 47, had suffered a miscarriage of justice over crucial DNA evidence.

He was jailed for six years in 1989 after being found guilty of raping a woman acquaintance in Largs.

Appeal judges said new evidence had shown a risk of cross-contamination of samples used for genetic profiling.

His case was one of the first in Britain where the technique was used to secure a conviction.

Conviction quashed

The victim, who knew Mr Kelly well, did not identify him as her attacker.

The most important evidence for the prosecution at the trial was DNA material from stains found on the woman's dressing gown.

Three judges at the Court of Criminal Appeal in Edinburgh have now ruled that his conviction should be quashed.

The Lord Justice General, Lord Cullen, said new evidence showed that there was a risk of cross-contamination of samples in the procedures used for genetic profiling at the time.

He has established the existence of evidence which is of such significance that the fact that it was not heard by the jury constituted a miscarriage of justice
Lord Cullen
"DNA evidence was plainly of critical importance for the conviction of the appellant," he said.

"If the jury had rejected that evidence there would, in our view, have been insufficient evidence to convict the appellant.

"Accordingly, while the evidence related to a low risk of cross-contamination, the magnitude of the implications for the case against him were substantial.

"For these reasons we have come to the conclusion that he has established the existence of evidence which is of such significance that the fact that it was not heard by the jury constituted a miscarriage of justice."

Mr Kelly's case was sent back to the appeal court after being investigated by the Scottish Criminal Cases Review Commission.

DNA testing

His counsel, Scott Brady QC, argued that there was significant additional evidence relating to cross-contamination of samples.

At the time, samples from the victim and the suspect were loaded into laboratory wells on either side of a well containing the crime scene sample.

It was claimed that there was a risk of the sample from the dressing gown stain becoming contaminated with the sample from the suspect.

The method of DNA testing was changed in 1990, with crime scene and reference samples no longer being placed next to each other.

An expert told the appeal judges that American laboratories had become aware of a danger of cross-contamination if there was not an empty well between samples.


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