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DNA and the Robin Garbutt case: Is the CCRC possibly assisting a murderer to escape justice?

Diana Garbutt

In 2019, the CCRC was given DNA evidence suggesting that the person who murdered Diana Garbutt could have been a police officer, who we shall refer to as Police Constable (PC) Suspect. What has the CCRC done with that information? The short answer is that we don’t know. Did the CCRC immediately use their powers to cause PC Suspect to be investigated for murder? It appears not.

The background to the case is well known. Diana Garbutt was brutally bludgeoned to death with an iron bar on 23rd March 2010. Her husband, Robin Garbutt, was arrested on 14th April after previously assisting police as a significant witness. He was charged with her murder on 16th April. North Yorkshire Police conducted a flawed investigation into the incident, which has enabled Robin Garbutt to raise a number of issues suggestive of a miscarriage of justice, however all attempts to appeal his case based on police blunders have failed to produce the desired result.

Mr Garbutt and his wife owned and ran a sub-post office in the small village of Melsonby in North Yorkshire. At some point during the night or early morning of 22nd/23rd March 2010, Diana Garbutt was killed by three blows to her head with what, it was later alleged, was an iron bar. Mr Garbutt’s account to the police was that the post office had been robbed at 08:35 on the morning of 23rd March 2010 by an armed robber, and that the robber or an accomplice must have killed his wife.

Mr Garbutt’s trial for murder opened on 21st March 2011. The Jury returned at 10:2 majority guilty verdict on 19th April. He was sentenced to life imprisonment. The jury found that, on the evidence, Mr Garbutt’s story about an armed robbery was untrue. Passing sentence, Mr Justice Openshaw was scathing. He said that Mr Garbutt had shown no remorse over the death of his wife, adding:

“He has always accompanied his lies with sanctimonious lies of his love for her. By their verdict, the jury have exposed this as pure humbug. This was a brutal, planned, cold-blooded murder of his wife as she lay sleeping in bed. There was no struggle, she never awoke. He struck three savage blows, smashing her skull and causing her immediate death as clearly, he intended.”

The story of the armed robber he said was ‘ludicrous from beginning to end’.

However, in the bungled police investigation it transpired that the alleged murder weapon, a metal bar, contained DNA belonging to PC Suspect. Easily explained, perhaps, if he had handled the iron bar with his bare hands after it was discovered. But he says he didn’t do that. Impossible to explain is how his DNA came to be found on a pillow in the murder victims’ bedroom, a room that he allegedly has never entered.

PC Suspect in his witness statement:

1. Denies knowing Robin or Diana Garbutt

2. Denies touching the alleged murder weapon – a metal bar containing his DNA

Extract from the 2019 CCRC submission:

The Bar/Pillow/DNA evidence can be summarised [Essential reading VOL 3 Tab 1]

  1. PC Suspect is on leave on the day of the murder, on arriving at work two days later on the 25th March and we are told he is part of a four man team detailed to search Nixon’s yard. A PC Gregg Davis (part of that team) notices the bar (GWD/1) on the wall and recovers it. We are told that somehow in this process PC Suspects’ DNA comes in contact with the bar.

  2. There is a mixture of DNA on area B of the murder weapon (GWD/1). This comprises of Diana’s DNA, unknown male background DNA and DNA that can be attributed to PC Suspect.

  3. On a linear brown rust stain on the pillow in the bedroom where Diana died there can be found a mixture of DNA. This rust stain is said to be found in a “linear void” i.e. dent in the pillow.

  4. None of the DNA found on the bar or pillow can be attributed to Robin Garbutt.

  5. There is an 82% correlation between the entire DNA mixture found on area B of the bar and that of the DNA on the pillow.

  6. 91% of the DNA found on the pillow can be found in area B of the bar, that is out of the 33 allele on the pillow only 3 of those allele cannot be matched.

  7. It is apparent that when the murder weapon was wielded in the attack on Diana the weapon struck or glanced the pillow leaving a linear void and in doing so transferred DNA from Area B of the murder weapon onto the pillow. (Alternatively, the DNA was already on the pillow and the rusty iron bar struck over the top of it).

  8. We can see that there are 12 allele that belong to PC Suspect on area B of the bar and these 12 allele are enough for the prosecution to conclude it is PC Suspect. On this basis, PC Suspect could quite reasonably be charged with murder.

  9. Since there are 12 allele found on area B of the bar that belong to PC Suspect, we would never get a full profile transfer from area B contacting the pillow, in fact we can see 8 of the 12 had been transferred!

  10. However, we can say that the DNA on the pillow matches that from the bar, that this unique mixture of DNA found on area B of the bar (part of which we know includes PC Suspect) makes up the 91% of the DNA found on the pillow, we can conclude that PC Suspect must have handled the bar prior to the murder. There can be no other way that these 8 allele are present on the pillow. If PC Suspect has handled the bar prior to the murder, it would explain how his DNA got onto the bar. Sara Gray, prosecution forensic scientist in a statement made on the 24th September 2010 writes 'Further, the findings are in keeping with the male DNA detected in area C, and in the middle of the bar, having been deposited by a male who has held the bar at some time, whilst not wearing gloves, thus transferring DNA to the surfaces swabbed.' She also concludes in her statement dated the 16th June 2010 "it was possible that DNA attributable to Diana might be present at one end and possibly the middle of the bar and that DNA from a possible 'wielder' of the weapon might be present at the opposite end."(This is the end (the wielder end) that a full profile of PC Suspect's DNA is found).

  11. If this DNA on the pillow has not been transferred from the murder weapon, where has it come from? Do not forget this is DNA deposited on a brown rusty stain found in a linear void on a pillow in a bedroom where the attack weapon was said to be linear, metal, and rusty. A place where there is no foot traffic or any other obvious explanation of how this and especially DNA could have got there. (The only other possible explanation is that PC Suspect had been in the vicinity of the bed at some time).

  12. With this knowledge solicitors acting for the Applicant (Martin Rackstraw - Bindmans LLP) contacted Dan Krane, PhD. The college of Science & Mathematics, Wright State University, USA. They asked him to consider the DNA on the pillow in this case. He finds noticeably: [VOL 3 Tab 13] a) "A total of 33 unique autosomal al/es were reported on the "8F2" worksheet generated by the laboratory for Item 1611 Area 28. A total of 52 autosomal allele cells are indicated on the "i-STRess11 worksheet. The difference between these two allele two counts {19 unique calls} can be explained by the laboratory removing allele cells marked with the "S" or "PU" notes recorded on the "i-STRess1' log. b) "It is important to note that all but four alleles observed in the reference sample generated for PC Suspect were reported on the "8F2" worksheet for Item 1611 Area. However, upon review of the "i-STRess'1 worksheet for Item 1611 Area 28, the four al/es present in PC Suspect’s reference sample but unreported on "BF2" do correspond to peaks observed in the test results obtained from sample Item IG11 Area 28. (Thus a full DNA profile of PC Suspect can be found on the pillow).

  13. Only DNA from Diana and Robin Garbutt can be legitimate DNA on that pillow, as this is a private bedroom that they shared. There is no reason why anyone else's DNA is on that pillow nor someone’s hair! A strong assumption can be made that these pieces of forensic evidence belong to an intruder.

  14. From the court transcripts of Dr Karel Klaentschi of the Forensic Science Service [Vol 3 Tab 11) he concludes when summarising the DNA found on the bar compared to the DNA on the pillow; "there is no commonality or no obvious clear overlap between the two". This statement is now known to be not scientifically or mathematically correct. Which must now cast serious doubt on the evidence heard at trial because: a. There is an 82% correlation between the entire mixture found on Area B of the bar and that of Area 2B of the pillow. b. 91% of the DNA found in AREA 2B of the pillow can be found in Area B of the bar. c. In Area 2B of the pillow Dan Krane observes that there are 4 alleles short of a full DNA profile that matches PC Suspects DNA, however, then goes on to observe that a full profile of DNA that matches PC Suspect is present when reviewing the "i-STRess" and "BF2" worksheets.

  15. We can now say that a full DNA profile of PC Suspect can be found on the murder weapon and Professor Krane can put a full profile of PC Suspect on the pillow where Diana was murdered.

  16. In 2019, Dr Peter Ashton, Head of the Genomics and Bioinformatics at the University of York, was contacted to look at the DNA evidence in this case and concludes: his makes it very difficult to disagree with Dr Krone's assessment of the samples taken from the pillow {Item /Gll Area 28} that it would be inappropriate to say that PC Suspect is excluded as a possible contributor (and it does look as if he may well be among the minor contributors to the sample). it is indeed the case that PC Suspect was not involved in the case until two days after the collection of forensics samples from the crime scene, therefore his DNA should not have been present in those samples. Unless there was later cross­ contamination, the process by which such a close match to his DNA could be found is not clear. I believe that none of the DNA evidence provided in the case can alone be used to establish that Mr. Garbutt was present at the time that Mrs. Garbutt was killed, and that if he were involved, he would have had to have taken extraordinary care to ensure that none of his DNA was deposited on the murder weapon, without also removing the other DNA that was found on the bar. [Vol 3 Tab 14J]

  17. PC Suspect, who was not present at the murder scene when the pillowcase on which Diana’s head had rested was 'bagged' and sealed as a trial exhibit, and was later found to mirror the same DNA profile found on the murder weapon that Suspect avers to have been party to its discovery, some two days post the murder; remains unexplainable. Added implications are that Dr Klaentschi is now the second prosecution expert giving trial evidence that is misleading and is not scientifically correct. The first being Dr Miller with regard to time of death.

  18. The combination of the mathematical evidence linking the bar to the pillow with the evidence from the above two experts, places PC Suspect’s DNA at the crime scene beyond doubt.

Robin Garbutt could not have removed his own DNA from the murder weapon without removing significant amounts, if not all of the DNA of Diana Garbutt and PC Suspect.

In the forensic examination of evidence from the crime scene the metal bar was discovered by the police in unusual circumstances. It was bloodstained but the police did not think to have it tested for DNA at the time it was discovered. When it was eventually tested four months later at the suggestion of a prosecution barrister the findings were very interesting. No fingerprint, DNA or other evidence linked Robin Garbutt to the metal bar that was identified as the murder weapon and there was no blood spatter on him or his clothing.

However, DNA belonging to a police officer, PC Suspect, was found on the metal bar and on the pillow in the bedroom where Diana Garbutt’s body was discovered.

Normally, one would assume that discovering DNA from a person on the pillow next to a dead woman who had been brutally bludgeoned to death, would result in that person being regarded as a suspect, to be investigated thoroughly. But it seems that because PC Suspect was on leave on the day of the murder and said that he couldn’t remember what he was doing that day, he was never regarded as a suspect!

When it was first forensically examined, PC Suspect’s DNA was classed as an unknown male DNA. The Police Forensic Scientist, Sarah Gray, stated that the DNA on the bar is in keeping with the carrier not wearing gloves. Once it was determined that DNA on the bar was linked to a North Yorkshire Police officer, Gray made a supplemental statement to say the DNA could have been transferred onto the bar through cross-contamination. Gray said that if PC Suspect had owned the gloves for a long period of time it was feasible that his DNA became embedded on the outside of the gloves. Thus, the forensic scientists can be conceived to have started the process of making excuses for PC Suspect’s DNA being on the murder weapon and Dr Klaentschi gave evidence that seemed to dismiss the significance of PC Suspect’s DNA being on the murder weapon and the pillow.

There could not have been a clearer implication, which warranted in-depth police investigation, that PC Suspect had possibly been in the vicinity of the bed where Diana Garbutt was found bludgeoned to death. Even if this is somehow incorrect, PC Suspect’s movements when he was on annual leave and unable to recall where he was when Diana was killed should be subject to the most intense scrutiny possible, if only to eliminate him as a suspect. The CCRC should be demanding that PC Suspect is regarded as a prime suspect in the murder of Diana Garbutt.

Additionally, the CCRC should consider why a clump of hair seen and photographed on the pillow next to Diana Garbutt’s bloodied head subsequently disappeared.

Strands of hair found on the pillow near an outstretched hand of Diana were said to be ‘lost’ by the police. It is known that the hair strands could not be from Diana or Robin Garbutt and are likely to be from the murderer. They never made it to the forensic science labs after being captured on scenes of crime photographs. As a consequence, they were never available for DNA testing. Is it possible that someone in the police or Forensic Science Service might have had a motive for ensuring that the clumps of hair ‘vanished’? Could someone, perhaps, have known that a police colleague had left them there while assaulting Diana Garbutt? These are awful questions to have to pose, but in light of what is now known about Wayne Couzens’ abduction, rape and murder of Sarah Everard, nothing is impossible.

PC Suspect says he cannot remember which of his colleagues he was linked with during the search, but he can remember the colleague who first found the bar. PC Suspect can also remember which of his other colleagues was talking to the garage owner, Bill Nixon, as he was also part of that conversation. He assumes there would “probably” have been another colleague present while searching, as they always search in pairs, but he claims that he cannot recall who that was. This begs the obvious question of why pocket notebooks, duty rosters, or other documentation was not checked. Or indeed, why PC Suspect’s fellow police officers could not have been quizzed to find out more. How likely is it that any police officer cannot remember what they were doing on the day when a brutal murder was committed? Garage owner Mr. Nixon told the court at the trial that he had never seen the bar before on his premises. He also said that members of the press used that section of the wall as a vantage point for taking photos of the scene outside the post office (and as they had not seen the metal bar there, which raises the valid suspicion that a police officer may have planted the metal bar on the wall).

Television footage of West Road, Melsonby on 24th March 2010, shows the wall outside Nixon’s Garage where the murder weapon was found the following day. The iron bar is not there. A fact confirmed by at least one journalist who sat on the same wall on that day. Garage owner Bill Nixon said that he had never seen the bar before on his premises, and that members of the press were stood on that section of wall taking photos. On some television footage, there appears to be a mobile police cabin positioned as close as six to eight feet from where the bar was found. It was virtually opposite the rear entrance to the Village Store and Post Office premises, suggesting that the metal bar was not on the wall until the time and day when PC Suspect and his colleague were said to have found it.

Why does this confirmed evidence not interest the CCRC? We have a clear suspicion that the police officer involved in the discovery of the murder weapon had been in close proximity of the same bed as Diana Garbutt was found dead in. Perhaps this is untrue, but it has to be worthy of thorough investigation. Perhaps PC Suspect, on annual leave, visited Diana Garbutt? Let a proper investigation clear up this crucial point.

In the meantime, Helen Pitcher, Chairperson of the CCRC told Campaigner Jane Metcalfe, “There is nothing in what you say that leads me to doubt the integrity of those connected with the review”.

Actually, there is good reason to doubt the integrity of those reviewing Robin Garbutt’s claim of innocence: a fact-driven possibility that Diana Garbutt could have been murdered by a police officer, which should have resulted in an immediate in-depth investigation of that police officer. It appears that nothing has happened in the past 3 years.

By Bill Robertson

Bill Robertson has researched alleged miscarriages of justice for around 20 years and advised on several cases, including the most recent application to the CCRC by Jeremy Bamber.

Please let us know if you think that there is a mistake in this article, explaining what you think is wrong and why. We will correct any errors as soon as possible.

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