The High Court refused John Gerard McDonagh’s application for an order requiring access to forensic evidence gathered during the investigation into the 1998 rape and murder of Siobhan Hynes, for testing using newer scientific methods.
Mr Justice McDermott said the Assistant Commissioner’s stated reason for refusing the request — that access could not be granted without a court order — was flawed because the Commissioner could consider the request on its merits. But the applicant had not sought certiorari quashing that decision, or a declaration that it had not been properly considered. The judge refused the relief sought and did not decide whether the proposed tests should be carried out.
Mr McDonagh was convicted in 2001 of murder and a section 4 rape and sentenced to life imprisonment and 10 years’ imprisonment, respectively. The Court of Criminal Appeal refused leave to appeal in 2007.
His solicitors sought access in 2012 to evidence including fingernail clippings, clothing, fibres and hairs. They relied on an expert opinion that newer DNA techniques might identify male DNA in samples that earlier testing could not resolve, potentially inculpating or excluding Mr McDonagh. The court heard differing expert views: one expert considered the proposed methods might produce meaningful results, while others questioned the likelihood and significance of any result, given the condition of some evidence and the possibility of innocent transfer. Some nail clippings were reported to remain available, but the court had not been given evidence about the preservation of all proposed items.
The judge also noted that the trial case included fibre evidence linking Mr McDonagh’s jumper to Ms Hynes’s clothing and supporting the proposition that she had been in his car. He said the application presented only a limited account of the trial and appeal, including missing forensic reports and the trial transcript, and considered judicial review an unsuitable route for resolving the request.
The judgment said a convicted person could seek access through an application under section 2 of the Criminal Procedure Act 1993, with a related motion under section 3. The Court of Appeal could order inquiries, production of exhibits or access for testing where necessary to do justice. The judgment also said a request should first be made to the Commissioner, who should consider whether testing might reasonably yield a result with a reasonable prospect of being received as newly discovered evidence. It stressed that access is not automatic and a speculative request should be refused.
The High Court refused mandamus, an order directing access, the declarations sought and relief under the European Convention on Human Rights Act 2003. It did not order testing or determine the merits of the proposed tests. The judgment said the Commissioner could still consider the request on its merits, and Mr McDonagh could apply to the Court of Appeal under the 1993 Act.