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Verdict raises cold case questions

28 January 08 17:50 GMT
By Vincent Kearney
BBC NI home affairs correspondent

It sounded like the script for a television drama.

A team of specialist detectives set up to re-investigate more than 2,000 unsolved murders during the Troubles, and where possible, bring the killers to justice.

Dave Cox, a former senior detective with the Met and a member of Sir John Stevens' team which investigated allegations of collusion in Northern Ireland, was cast in the lead role at the Historical Enquiries Team and given £34m and six years to complete the task.

TV detectives would have cracked the cases in days rather than months, and a string of killers who for years thought they had got away with murder would have been sent to to jail.

But real life is very different.

To date, two years on, the HET team has completed just over 320 cases and only nine files have been sent to the Public Prosecution Service, with no-one yet convicted.

Prosecutions were only part of the team's task.

Its main objective is to find the truth about what happened in each of the cases it investigates, and for this information to be given to the families of victims.

Families who, in many cases, were told virtually nothing about the circumstances in which their loved ones died.

But trying to secure prosecutions was an important part of the remit, as Dave Cox outlined when the team was launched in January 2006.

At that time, he stated that his detectives would attempt to use new scientific techniques to secure convictions. Those new techniques include developments in forensic science and the ability to obtain DNA profiles from items many years ago.

However, the Omagh bomb trial, which ended last month, has raised serious questions about the reliability of that kind of evidence.

The key element in the case against Sean Hoey, who was acquitted of 58 charges including the Omagh bombing, was forensic evidence.

The trial judge, Mr Justice Weir, was heavily critical of the police performance when gathering and storing items that were later subjected to DNA testing.

He described the attitude of the police to forensic exhibits as "slapdash" and "cavalier", an approach he said had failed to ensure the integrity of the items.

In other words, it was possible that the exhibits had been contaminated and the results gleaned from them were therefore deemed unreliable.

The judge's comments referred to items gathered and stored since 1998.

But the vast majority of cases being re-investigated by the Historical Enquiries Team go back more than 30 years, when the methods of gathering forensic evidence were even less sophisticated.

Kevin Winters was Sean Hoey's defence lawyer. He also represents a number of relatives of victims who are working with the team, and who want to see those responsible for their loved ones' deaths being prosecuted.

He is concerned that won't be possible in cases where forensic evidence is the key and has written to Mr Cox to outline that view.

"If there are concerns generally in relation to what we have seen in Sean Hoey's case, then it's not unreasonable to suggest that there would be a more widespread concern about the retention of forensic evidence going back in cases 10, 20, 30 years ago," he told BBC Newsline in a special report.

"It's those concerns that we want to address immediately.

Dave Cox remains convinced that prosecutions are possible, and that forensic evidence can still play a valuable role.

"We'll have to look in every case, we can't make a blanket assessment, we have to look and see what have been the terms of the storage of the exhibit," he says.

"How was it gathered, can we prove it to the satisfaction of the court, is the integrity of it sustainable?

"If you can do that then you have the makings of a case."

The Forensic Science Service, which developed the highly sensitive and controversial technique of low copy number DNA testing that was used in the Omagh trial, supports that view.

"There are some very specific examples where perhaps exhibits recovered 10, 20, 30, 40 years ago have been completely well preserved and do lend themselves to these super sensitive DNA techniques," explains Paul Hackett.

"For example microscope slides might be a good example whereby the evidence has been preserved under glass, in a glue, in an adhesive, and does allow us to go back and obtain a DNA profile many years later on."

Kevin Winters has his doubts, and says the Omagh judgement could have widespread implications for the criminal justice system.

He would like to see current cases based on low copy number DNA withdrawn, pointing out that Mr Justice Weir stated that it was not validated by the international scientific community.

And he says some convictions based on forensic evidence may now have to be re-examined.

"There is sufficient cause for concern on the part of defence lawyers to warrant requests for information about previous cases that have been through the system," he says.

"We need to look at the Forensic Science Northern Ireland very closely, and the role that it has had, the pivotal role, in the collation, presentation, collection and making available of forensic exhibits in cases in this jurisdiction over the past number of years."

Mr Cox accepts there is a potential problem with forensic evidence, but stresses that seeking prosecutions isn't the only objective.

"Prosecutions are one issue, but very often families we meet will say to us, I don't actually see any value in anybody being sent to court at this stage, we want to know what happened, we want people to acknowledge what they did, we want people to take responsibility, in some cases people say they want apologies, a whole range of issues that they will ask us," he says.

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