Barnes, R v [2005] EWCA Crim 1158

[2005] EWCA Crim 1158Case No 2002/06752/B2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM MANCHESTER CROWN COURT
His Honour Judge Maddison
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10 May 2005
Before
LORD JUSTICE MANCEMR JUSTICE TUGENDHATHIS HONOUR JUDGE STEPHENS QC(Sitting as a Judge of the CACD)
Between
ReginaRespondentDerek Michael BarnesAppellant
Mr P Wright QC and Mr I Metcalfe (instructed by Crown Prosecution Service) for RespondentMr Kamlish QC and Mr Huseyin (instructed by Hadgkiss Hughes & Beale) for AppellantHearing Hearing dates : 3, 4 March 2005
Judgment

Introduction

[1]This appeal arises from the appellant’s conviction at the Manchester Crown Court before HHJ Maddison and a jury on 14th February 1997 of robbery of Allan and Audrey Pickles (count 1) and inflicting grievous bodily harm on Alan Pickles contrary to s.20 of the Offences against the Person Act 1861 (count 2). The offences were committed on 3rd August 1995 at Mr and Mrs Pickles’ council house home at 25 Frankton Road, Whitefield, Greater Manchester. The appeal is brought on the ground that fresh evidence is available from an arborealist, Mr Ian Murat. Mr Kamlish QC representing the appellant submits that his evidence is capable of belief, that it would have been admissible at trial, that there a reasonable explanation for the failure to adduce it then, and that if given at trial it might reasonably have affected the jury’s verdict. It is submitted that it should be received and that in its light the verdict reached by the jury on 14th February 1997 is unsafe.

The facts and evidence

[2]That Mr and Mrs Pickles were the victims of robbery and, in Mr Pickles’ case, the infliction of grievous bodily harm on 3rd August 1995 were facts not in question. The offender obtained access to their house under the pretence of being a police officer with the name of “Dave”. After maintaining that pretence for half an hour he became violent, forced the Pickles in headlocks into a bedroom, punched Mr Pickles, fracturing his left cheekbones and jaw in more than one place, and remained in the flat for a long time, behaving erratically, until he left at or shortly after 8.00 p.m.[3]No long thereafter, a telephonist at the Blue Line Taxi Company received a call to collect someone calling himself William from the Junction Public House, a few hundred yards from 25 Frankton Road. A taxi driver, Mr Wilson, duly collected the man, who said that he wished to go to Collyhurst, but then directed the taxi to go via Cheetham Hill and into the car park of the derelict Lonsdale Public House. There he go out of the cab, threw an small empty soft drinks bottle that he was carrying against the back of the pub wall, its parts falling among some “longish” weeds, disappeared from sight for about ten minutes and then re-appeared and resumed his journey for which he paid at its end from a well-stocked wallet.[4]Mr and Mrs Pickles both described the assailant as coloured. Mr Pickles put him in his statement as “full coloured”. He also said in evidence that he was “with dark skin”. He further described him as 25-30 years old, with short black curly hair and a full moustache and stubble on the chin, a red shirt, grey trousers and black leather shoes. Mr Wilson in his statement described his passenger as “a sort of half-caste in colour” but said also that he was dark-skinned with stubble on his face. Mr Wilson was not sure what his passenger was wearing, although he thought that it was light summery clothes and he was carrying a beige shirt.[5]A Senior Scenes of Crime Officer, a civilian employee of the police, Mr Graham Smith, was instructed by his superintendent to look for fingerprints which might establish who had been inside 25 Frankton Road. Together with another such employee, Mr Alan Greenhalgh, who took general photographs of the premises, Mr Smith attended there at 9.00 a.m. on 5th August 1995, and, by use of aluminium powder and acetate tape, lifted a series of fingerprints, moving from the front door inwards into the house. One of Mr Greenhalgh’s photographs shows a door to the smaller bedroom in the house. According to Mr Smith’s evidence, the sixth lift came from this small second bedroom door, a little above the door handle, which itself appears from the photograph to be about or just under half way up the height of the door. The lift consisted of two adjoining fingerprints (a left forefinger and an adjoining central finger). Mr Smith said that, as he found and took each fingerprint and lifted it onto acetate tape, he labelled it, identifying it as relating to 25 Frankton Road and initialling the label, and also recorded the taking of each lift on the front cover of an official docket, which we have seen.[6]Not long after 4.00 p.m. on 5th August 1995, Mr Wilson showed another officer, PC William Barclay, the place where his passenger had broken the bottle and where the parts had fallen. PC Barclay’s evidence was that he was able to recover from that place a number of pieces of broken bottle glass which he identified as WB/1 before handing them to the exhibits officer, DC Terence Watson on the same day. DC Watson said that he then handed them to Mr Smith at 11.30 a.m. on 6th August 1995. Mr Smith said that he lifted a fingerprint off one shard and labelled and identified this too both by reference to 25 Frankton Road and by reference to the initials WM/1, as well as placing on it his own initials. He then added this fingerprint to the official docket as item no. 7. The docket serves both as a record and as an envelope inside which lifts are placed.[7]Mr Smith said that he put the docket with the lifts in it overnight in a locked drawer to which he had the only key, and that he handed it to the fingerprint officer, Mr M. Wilson, early on the next day, Monday 7th August 1995. The docket, which its list and description of the 7 lifts inside it, bears a stamp and initials recording that the Fingerprint Department received it on 7th August 1995.[8]The Crown’s evidence at trial was that on 9th August 1995 a photocopy of lift 6 was submitted to the national fingerprint bank, at that time located in Tacoma, USA. Although the bank included the appellants’ fingerprints, the list of the closest matching fingerprints that the bank returned failed to identify lift 6 as the appellant’s fingerprint. However, the police also had in their possession in England photographs of the appellant’s fingerprints dating from 1st July 1988, when they had been investigating a previous incident. Mr M. Wilson said that on an informal inspection on 17th August 1995 he was able to compare lifts nos. 6 and 7 with these photographs, and found that the two sets of prints matched. This comparison was undertaken because by 17th August 1995 the appellant had, for whatever reason, become a suspect. The fact that he was by then a suspect was expressly confirmed on the docket against the record made of the comparison.[9]Meanwhile, the appellant was paying a series of visits (for, he maintained, entirely legitimate purposes) to the home of a Mr Sullivan at Artillery Court, Chorlton on Medlock. His first visit was on 14th August, and his last on 18th August 1995, on which date he was arrested as he left the premises. No fingerprints were taken from Artillery Court. He was interviewed in relation to the offences involving the Pickles on 31st August, when his fingerprints were taken afresh. On 1st September 1995 Mr Wilson undertook a formal comparison of these fingerprints with lifts 6 and 7, and again found a match. It is not in issue now that fingerprints 6 and 7 as they appear in the documentation before the jury and before us are the appellant’s fingerprints. The primary issue before the jury was whether there was any reasonable doubt that lift 6 was obtained, as was the Crown case, by Mr Smith from the small bedroom door in the Pickles’ home on 5th August 1995.[10]At trial it was put to Mr Smith that lift 6 did not come from that door. A suggestion was floated that the police might have obtained it from Artillery Court, but there was, as the judge pointed out to the jury, nothing to support a suggestion that any fingerprints were ever taken at Artillery Court, let alone by 17th August. The only known record of the fingerprints taken on 1st July 1988 consists of a print. The documentary material put before us by the Crown also includes a report of a senior crime investigator, Mr Wellock, to the effect that the lifting of fingerprints by use of aluminium lifting powder and adhesive tape was very rare before 1990, due to lack of facilities for processing lifts, and that it was Mr Wellock himself who in 1990 carried out a pilot scheme on the feasibility of such use and was in 1991 instrumental in issuing such equipment generally to scene of crime officers. Nonetheless, the jury were, as the judge understood and reminded them, being asked to consider the possibility that the police may somehow have had fingerprints belonging to the appellant, which the police had pretended came from 25 Frankton Road, or had substituted for any taken from 25 Frankton Road, on 5th August 1995. Mr Smith gave evidence and denied at trial that lift 6 came from anywhere except the small bedroom door at 25 Frankton Road on 5th August 1995.[11]As to lift 7, the only positive possibility that the defence suggested at trial was that the broken bottle pieces found in the Lonsdale Public House car-park by PC Barclay on 5th August 1995 must have resulted from one of the visits to that car-park which the appellant said that he had made on different, previous occasions. He said that, despite the considerable distance from his father’s house where he was living in Rusholme on the other side of Manchester, he used to visit a sandwich bar in Cheetham Hill which “made sandwiches to your desire”, and that he would then sit eating the sandwiches in the deserted car-park of the Lonsdale Public House, where he said that as a result he from time to time discarded used bottles. His last visit there was he said about three or four weeks, or maybe longer, prior to 3rd August 1995.[12]Subsequent to the assailant’s incursion, the Pickles moved house, but 25 Frankton Road is understood to have been let to other tenants. Following the appellant’s trial and conviction on 14th February 1997, the small bedroom door was collected by solicitors, Flacks Ross, acting for the appellant, and taken to the home address at 24 Bollington Road of Julie Corrie, an employee in their legal department, where it remained “stood against the wall covered with plastic for a considerable time, months and months”. It was then transported elsewhere, Julie Corrie believed to Flacks Ross’s offices, for fingerprint purposes. At some point, in it appears 1998, most of the litigation department of Flacks Ross (including the relevant solicitor, Mr Leigh Wright, handling the appellant’s case) joined another firm, Draycott Browne, and the door in some way moved to their premises at 45 Hardman Street. From there it was on 23rd November 2001 transported by courier to the offices at 83 Alceste Street of the solicitors presently acting for the appellant, Hadgkiss Hughes & Beale. On 11th August 2003 the door is recorded as having been in a Greater Manchester Fingerprint Bureau laboratory at the Bradford Street Complex, Bradford, Manchester. For the appeal before us, the appellant’s legal representatives had the door couriered to the Royal Courts, and we had the opportunity of inspecting it in the well of the court. That it is the small bedroom door which was in 25 Frankton Road in August 1995 is not now in dispute.

The efforts to obtain expert evidence

[13]According to an affidavit of Maslen Merchant, an executive in Hadgkiss Hughes & Beale, sworn 18th December 2002, a series of attempts has been made over the years to obtain evidence regarding lift 6. A fingerprint expert, Mr Peter Swann, was instructed prior to trial. So too was Professor Lorimer of Manchester University, with a view to examining the lift under an electron microscope. A conference was held with him on 30th August 1996, with undisclosed results. After the conviction, Mr Leigh Wright continued efforts to challenge the lift, and Mr Swann was again instructed in 1998. In late 2000 the appellant instructed another firm, Olliers, who consulted a fingerprint expert in the United States called Pat Wertheim, who prepared a short preliminary report (contents again not disclosed) in June 2001. His recommendation led in turn to the instruction in August 2001 of another fingerprint expert, Mr Bayle. He is reported as expressing grave reservations about the scene of crime evidence, and, after copies of the fingerprint forms and other documents were obtained from the police, he is said to have prepared a preliminary report dated 10th September 2001, which is said to have been “heavily critical of the scene of crime officer’s methods in examining the scene and lifting the alleged finger print”. Counsel however advised on 5th November 2001 that his report was on its own insufficient to form a ground of appeal, and that Legal Services Commission funding was justified to try conclusively to exclude the lift from the surface of the door. This led to the collection of the door on 23rd November 2001, as we have already mentioned. “Strenuous and continuous” efforts were then made over the next months to locate an expert who could examine the lift and door and wood grain and provide their opinion as to whether the two were mutually exclusive. Some 30 computer experts said that they could not assist. Only in April 2002 did the Forensic Science Consultancy in London state that they had the requisite computer technology to scan the door and the lift and to exclude one from the other. The necessary £4000 funding was granted by the Legal Services Commission on counsel’s advice, but then it appears that the exercise was never undertaken, because, according to Mr Merchant: “I received information to suggest that the results of the proposed computer analysis of the surface and lift would not be sufficiently positive to provide a ground of appeal”.[14]Mr Merchant recommenced enquiries and wrote to further computer experts. One in May 2002 was “initially …. quite positive that he could assist” and met with Mr Bayle, “but unfortunately he could not, ultimately, help us”. Mr Bayle in June 2002 then suggested a wood grain expert, and Mr Ian Murat of A.C.S. Consulting, an arboriculture consultant, was identified and instructed. It is his proposed evidence that is relied upon on this appeal pursuant to s.23 of the Criminal Appeal Act 1968. We heard him de bene esse, and having done so proceeded also at the invitation of both counsel to hear Mr Smith and two further witnesses called by the Crown before us who were not called at the trial. They are Jacquelyn Newman, now the assistant director of science services for the Greater Manchester Police, and Kevin Kershaw, a forensic identification services manager, or (for present purposes) fingerprint expert. Mr M. Wilson, who undertook the original fingerprint comparisons in August 1995, was killed in a road traffic accident in 2003.

Mr Murat’s reports and evidence

[15]Mr Murat produced two reports, dated 13th November 2002 and 27th October 2003. In his first report, he recorded that he had inspected the door in conjunction with Mr Merchant on 9th August 2002. He had, prior to his visit, received a sketch (evidently not to scale) and photographs made by Mr Bayle of central area of the door around the handle area and a copy of lift 6. His report then said this:
“4.04 One of the outstanding characteristics of wood is its infinite variety. Some woods are very uniform both in texture and colour and there is little or no visible difference between one species and another. Many timbers show variation in texture and colour over a relatively small area (as illustrated by the extracts of texts in Appendix 3). 4.05 The fingerprint lift has three distinct features, as well as the imprint of the grain of the veneer and the fingerprints. 4.06 An examination of the door, in the area from where the fingerprints have been taken, could find no evidence of the marks corresponding to the fingerprint lift. 4.07 The only mark that was similar to Mark A could not be the mark by virtue of the fact that the grain pattern is incorrect and the fingerprint lift tape protrudes over the edge of the door and the mark appears to be a scuff and not a scratch. 4.08 I conclude that the fingerprint could not have come from that door in the area from where the fingerprint was said to have been lifted.”
[16]In reports dated 25th July 2003 made in reply to Mr Murat’s first report, Mr Kershaw and Mrs Newman pointed out that Mr Murat had misled himself, into thinking that marks A, B and C were part of the lift. They were and are, as is now common ground, creases or bubbles that had come into existence as the adhesive tape used to make the lift was affixed to the transparent acetate, which now holds it. Such creasing is very common during this process and easily felt and observed when handling the original acetate lift. Both Mr Kershaw and Mrs Newman went on, however, to state that they did not believe that the exercise of comparison on which Mr Murat was engaged was within any expertise that Mr Murat possessed and to question its general feasibility. In the latter regard, they referred in particular to the length of time elapsed since August 1995, the unique nature of any lift and the suggested likelihood that the condition of the surface of the door would have changed since August 1995.[17]On 11th August 2003 Mr Murat visited the Greater Manchester Police Fingerprint Bureau and saw the door in a police laboratory as well as the original lift 6. He observed the creases and Mrs Newman and another police employee, Mr Kelly, explained to him how fingerprints are taken and then mounted, preserved and stored. In his second report, he then said:
“5. My original appraisal of the fingerprint lift was based on a photocopied document, a photocopy of the fingerprint lift and advices from a fingerprint expert that the marks within the area of the fingerprint lift were not background noise but could only have been picked up at the time of the original lift. Having viewed the original fingerprint lift in the presence of Miss Newman and Mr J Kelly, Greater Manchester Police, I am happy to accept that those marks that I had interpreted as marks being lifted from the door are indeed air bubbles and creases within the tape used. However, removing these factors from the equation, one can still clearly see an imprint of the grain from the wood area.”
In his oral evidence Mr Murat repeated that he had been told – by, he said, Mr Bayle – that the marks A, B and C were on the wood not on the tape itself, and that he had relied on Mr Bayle’s expertise in that regard. Since the whole of Mr Murat’s first report depended on this assumption, one would have expected him to spell it and its origin out in that report. As it is, his first report confused creasing with what he thought were gouges or scratches in the wood (paragraph 3.05). Further, this confusion means that he committed himself to a conclusion in his first report on an entirely erroneous basis.[18]His second report records what followed:
“6. I asked Ms Newman to take a fingerprint lift from the door. An area of the door above where it is said that the original lift was taken from was coated in powder. Low tack adhesive tape, was placed over the powder, rubbed and then removed and mounted on a piece of acetate film. The sample showed the fingerprints form someone who had been handling the door and the grain of the wood veneer beneath. A copy of the lift can be found at Annex 1 to this report. 7. I was able to place the lift over the area from where it had been taken from and matched it exactly with the features of the wood grain that were evident on the tape. It is quite clear that the powder enhances the features of the grain beneath the fingerprint allowing it to be picked up by the adhesive in the tape. The powder enhances the various features, the late wood and the early wood, that have been laid down whilst that timber was growing. When overlaid, the numerous feature of pits and lines of early wood and late wood were evident. When laid over the area from where the lift was taken from it could be seen that there was an exact match. This contrasts sharply when comparing it with other areas of the door. Even though there are similar features there was no exact match, because the growth of the timber and the effect of machining the veneer has produced different pattern in the timber therefore, even when a similar growth pattern was found, when the lift was aligned with it, the rest of the lift did not match. 8. When I compared the original fingerprint lift with the one that Ms Newman took for me I noticed striking similarities. The same features that I had noticed on the original fingerprint lift were clearly evident on the one that Ms Newman took – the grain of the wood from the door. As with the sample that Ms Newman took, I overlaid the original lift with various features that appeared both on the door and the lift. Despite finding a number of similar growth patterns in both the lift and the door veneer, when the original fingerprint lift is laid over the door, the match is incomplete. I examined the whole of the door in the area where I was told in a previous examination of the door the fingerprint lift was taken from. The lift was examined in different orientations and in reverse.”
The features of the lift - the suggested pattern of wood-grain - which Mr Murat was now trying to find on the door were described before us as the “background noise” on the lift. The exercise of matching Mrs Newman’s lift to the door was one which Mr Murat was able to repeat in court before us after about a minute’s trying – some 18 months, therefore, after he first saw Mrs Newman take her lift. However, he knew the area from which she had taken that lift, and he was assisted by two matters: first, Mrs Newman’s lift was deliberately taken so as (unlike lift 6) to overlap and show the edge of the door; there was therefore only one plane in which Mr Murat had to move the lift in the relevant area in order to find its correct position; second, as will appear, Mrs Newman was, when she took her lift, deliberately taking care, by the overall pressure that she applied, to lift as much background as possible.[19]After responding to Mrs Newman’s and Mr Kershaw’s reports, Mr Murat’s second report then continued with the following paragraphs, which echoed, but adapted to the theme of comparative wood-grain pattern, the similarly headed paragraphs in his first report:
“Methodology 12. Through detailed examination of wood structures it is possible by the naked eye, or in exceptional cases with a microscope, to differentiate between the grains of different woods. Each species forms distinct patterns of cell deposition within the annual growth rings, and the growth rings themselves are subject to variation through a number of different factors. The patterns of growth are unique to each tree from where the sample was taken and through analysis of the pattern of growth and the relationship of the alignment of cells, it is possible to determine if the sample was from the same tree, the same timeframe or the same area. Through using these techniques it has still not been possible to match the wood grain of the veneer seen on the door with that seen on the original fingerprint lift. Based on my investigation I have come to the following conclusions: 13. Wood is not a solid homogenous substance but a porous one composed of large numbers of very small elements or cells. 14. Different timbers have widely different properties. The texture of a wood depends on the size of its cells and the distribution of the different kinds of cells which it contains. 15. The absolute width of rings varies by species, age of the tree and growing conditions. In any one tree the rings can be bigger on a side that gets more light or due to the presence of reaction wood. 16. One of the outstanding characteristics of wood is its infinite variety. Some woods are very uniform both in texture and colour and there is little or no visible difference between one species and another. Many timbers show variation in texture and colour over a relatively small area. The fingerprint lift has three distinct features, as well as the imprint of the grain of the veneer and the fingerprints. An examination of the door, in the area from where the fingerprints have been taken, could find no evidence of the wood grain pattern marks corresponding to the wood grain pattern in fingerprint lift. 17. The door has not been changed as suggested by Ms Newman. It is quite apparent that the wood grain is enhanced by the application of the fingerprint powder and that this is the imprint on the tape. This was proved by the fingerprint lift taken by Ms Newman at my meeting on 11th August 2003. 18. I conclude that the fingerprint could not have come from that door in the area from where the fingerprint was said to have been lifted.”
Based on my investigation I have come to the following conclusions:

The Crown’s evidence in reply

[20]In commenting on the exercise undertaken by Mr Murat on 11th August 2003, Mrs Newman said in a further report dated 4th December 2003:
“However Mr Murat goes on to say that he failed to match the original lift with any area on the door. He states he examined the whole of the door and used various orientations and in reverse. As I witnessed his examination I would state that his approach was haphazard where he randomly placed the lift on various areas of the door. He did not cover the whole area and it tool less that 1 hour. To do this examination it would require a millimetric scan covering a full 360° rotation of the acetate lift. I would expect this type of examination to take several days.”
In her oral evidence, Mrs Newman described Mr Murat’s methodology as appearing random, trying randomly to place the lift by looking at the door, walking away and then back. We can understand that, for some purposes (e.g to see how thick the varnish is in any place or where there is more wear and tear), it is useful to step away from the door the better to see the reflection of light off the door. But the very small detail of the wood-grain pattern in the lift and on the door which Mr Murat was seeking to compare gives us some cause for concern about the utility of such an approach in the present context. Mrs Newman went on to explain diagrammatically how dust, grease and other contaminants will obscure and blur holes or grooves in any surface, and how it is such dust and contaminants that are lifted by adhesive tape. She also said:
“In paragraph 12 Mr Murat states that different grains can be differentiated using the naked eye or a microscope. He states that using these techniques it has not been possible to match the wood grain. Mr Murat did not use a microscope, and previously in his statement he comments the pattern between the example lift I took and that on the original lift is “strikingly similar”
. I would state again that this is marks and features comparison of pattern lifted from a flat surface as opposed to being totally defined as grain and is therefore outside of Mr Murat's field of expertise.”[21]Mr Kershaw also wrote a further report dated 3rd December 2003 in which he stated:
“Mr Murat does not appreciate the factors which determine what does or does not appear in a fingerprint lift. I have never suggested that there could have been an anatomical change to the wood veneer. What I have stated however, is that the lift under review has been produced under the unique conditions prevailing at that time and with all (or some) of the above factors influencing what was eventually captured by Mr Smith. I feel that Mr Murat has misunderstood my report. I have not suggested at any point that contaminants could be confused with wood grain. I have merely stated the factors which must be considered when evaluating the provenance of a fingerprint lift including any contaminants upon the surface of the door at that time. I am quite aware of the unique qualities of wood grain and can appreciate that Mr Murat has the ability to determine the origin of a wood sample when comparing sample with sample or sample with the same tree, however Mr Murat is conducting an evaluation comparing a fingerprint lift with the grained surface of a door and has no expertise in this area. The fact that he has made some elementary errors in his original evaluation suggests that he is unqualified to pass an opinion on the provenance of this fingerprint lift. I would also question the methodology he has applied to this evaluation. I feel that it is inappropriate to apply a technique for establishing the origin of a wood sample to compare a fingerprint lift with all its imperfections, creases and air bubbles with the surface of a door. I would also add that it is unclear from Mr Murat’s report if he was able to compare the lift against the whole surface of the door, millimetre by millimetre, rotating the lift through 360 degrees at each stage of the process, and at the same time interpreting all the features apparent, as this is the only way that it may be possible to locate the exact point of contact where Mr Smith placed the adhesive tape upon the surface of the door. In conclusion, I feel that there is again no substance to Mr Murat’s additional report. I am satisfied that he has acknowledged his failings in respect of his abilities to evaluate a fingerprint lift, but unfortunately he is still unaware of either the factors which influence what is ultimately revealed in a fingerprint lift and the application of an appropriate methodology to consider the provenance of a fingerprint lift.”
[22]Mrs Newman’s and Mr Kershaw’s responses are both vulnerable to the criticism that they postulate a need to rotate the lift through 360degrees at each stage of any process of comparison. Since the wood pattern of the door runs up and down, it would only be necessary to rotate the lift once through 180 degrees in each position. Furthermore, since the wood-grain shown in the lift runs roughly NNE/SSW, it could be said to be more likely that the upper edge of the lift was uppermost on any door from which the lift came.

The further evidence before the Court of Appeal

[23]In his oral evidence Mr Murat explained his undoubted expertise as an arboriculturalist. His expertise lies primarily in trees as a living organism and the wood-grain of trees. In this way, he can, as his reports state, differentiate between different woods. However, Mr Murat has at no point suggested that the door in court is made of a different wood to any shown in the lift. He explained to us how trees lay down concentric rings during seasonal growth. Dark lines identify early seasonal wood and white lines later seasonal wood, particularly in temporate climates like the UK’s. The thickness of bands depends on factors like the amount of rainfall. He described broad bands as macro features and narrow bands and other smaller features as micro features. He identified the door in court as having a veneer, possibly stained and thinly varnished. Beyond saying that a council house bedroom door is likely to be cheap and mass-produced, he said no more about it or its origin.[24]So far as concerns the exercise in relation to which Mr Murat was called to give evidence, he conceded at the outset of his cross-examination that it was for him a “new adventure” in comparing wood-grain “in this particular way”, but not he said otherwise. In further describing the exercise of comparison which he undertook on 11th August 2003, he said that it took about an hour, and he did not feel it necessary to keep stopping, because the grain was vertical, but that he stopped in “several places”, though he could not remember how many. Contrary to a suggestion put at one point by Mr Kamlish to Mrs Newman, it could never have been possible to undertake any such exercise of comparison as Mr Murat sought to effect by placing the lift at fixed points across the grain and then assuming that the bands and lines of grain ran entirely straight and in parallel, so that, if the lift did not match there, it could not match anywhere. Nor do we think that Mr Murat himself ever suggested anything like that.[25]Mr Murat told us that he could find no place on the door with “even remotely similar wood” to the lift. We recall however that in his second report he made statements as follows:(1) “Even though there are similar features there was no exact match” (paragraph 7),(2) “Despite finding a number of similar growth patterns in both the lift and the door veneer, when the original fingerprint lift is laid over the door, the match is incomplete” (paragraph 8) and(3) “It is only on detailed examination that the individual growth patterns of the wood are different” (paragraph 10). In re-examination he furthermore accepted that the wood-grain pattern on lift 6 bore a “large number of similarities” to that on the door. Asked what elements were different when he tried to achieve a match, he said that, you would, for example, find a particularly wide growth ring, where, he said, “you would expect the left and the right to fall into line [i.e. with the lift], but that did not occur”.[26]Mr Murat’s evidence rested on several key points: First, he believed that, for the purposes of the comparison he was undertaking, the condition of the door, and particularly the pattern of its wood-grain, remained effectively the same as in 1995. Second, when asked then whether he considered that he could still make a perfect match from the door, if the lift came from it, he said that he did – the macro and micro elements could still be lined up, by looking for the formation of the wood-grain. Third, he explained that he was relying on further advice from a fingerprint expert (again presumably Mr Bayle), to the effect that the background striations appearing on lift 6 was “exclusively woodgrain”. He said that he had proceeded on the assumption that this information was accurate. Asked to confirm that he was unable to distinguish between any accurate and inaccurate elements of that information, he replied “I suppose so, yes”. He acknowledged that he was not familiar with factors which could affect the ability to recover the entire background surface on a lift. He had not therefore considered the significance of any of the factors relied on by Mr Kershaw or Mrs Newman because he was advised that the “background noise” in the lift was wood-grain.[27]We have been able to examine lift 6 and, as we have said, to see a brief illustration of the approach which Mr Murat deployed to see whether he could find a match. The exercise of comparison was one which he was undertaking for the first time in his life without prior experience, testing or study, apart from the one instance provided on the same occasion by Mrs Newman’s lift. There was no contemporaneous record or diagram of the exercise in any form. It is far from apparent how much of the door it covered. In opening the appeal Mr Kamlish spoke of “quite a large area around the handle”, but explained that as meaning several inches in all directions; and, when questioning the Crown’s witnesses he demonstrated to them as relevant a very small area around the handle. Mr Bayle’s sketch appended to Mr Murat’s first report is not to scale, but it shows the location of his photographs (in columns of five) with an indication which suggests that each photograph covered an area about four inches high. That would give a total column height of around 20”, extending perhaps 10” above the door handle itself. Before us, after reference to his evidence at trial that lift 6 was taken “just above the handle of the door itself”, Mr Smith went on to say that it was “midway between the floor and the top of the door – in the handle area”. In cross-examination, he accepted that this would connote a much larger area than his description at trial. He explained that he had not identified or recorded the precise location, because he had been sent to look inside the house for the fingerprints of any outsider and it would not matter where on the inside door he found any. During the appeal, we questioned whether, in the absence of any contemporaneous record, Mr Smith’s evidence excludes any possibility that lift 6 was taken somewhat higher than 10” above the door handle. The fact that the lift is of the two left hand fingerprints, in a position suggesting that they could well have been placed when pushing the door open with a slightly outstretched arm, may also suggest that the lift could have been taken at a point a little above any apparently covered by Mr Bayle’s photographs. Mr Murat took around an hour on his exercise of comparison. But after we raised our question regarding the possible position of any lift, Mr Kamlish suggested to Mr Kershaw that he should undertake a similar exercise to Mr Murat’s, but over one-third of the door and over a period of four/five hours. Mr Kershaw declined to do so. We return to the significance of this suggestion and its refusal below.[28]The striations on lift 6 are not easy to see, against whatever surface that lift is held. They reproduce more clearly in photographic form, but in that form it is not possible to lay lift 6 as a transparency on top of another surface. The striations are even less visible as soon as the lift is placed on the door. This is because the lift is transparent, the lines on it are faint and the door has a light brown colour from varnish and quite probably stain. Accepting for present purposes the assumption on the basis of which Mr Murat proceeded (viz. that the striations on lift 6 are a consequence of the wood-grain pattern in whatever wood the lift was taken from), it is nevertheless apparent from the lift itself that it has not picked up the whole wood-grain pattern. There are striations suggesting wood-grain which are vestigial in length, although, if they reflect grain, the grain must have continued on the original door but not been picked up on the lift. It also seems quite impossible in these circumstances to exclude the possibility that there were wood-grain lines not picked up at all. The presence of vestigial lines (creating the appearance of much wider bands in those areas where no continuing traces exist in the lift) itself throws grave doubt on the feasibility of the exercise on which Mr Murat engaged. We note in this connection that, when Mr Murat was asked to give an example of the difference in elements that led him to reject any match between lift 6 and the door, the example he gave was of a particularly wide growth ring, where, he said, “you would expect the left and the right to fall into line [i.e. with the lift], but that did not occur”.[29]Another point that emerged from cross-examination of Mr Murat and from the evidence of Mrs Newman and Mr Kershaw was that adhesive tape can, in the process of its application and removal, become subject to slight distortion, both concentrically as a result of the use of thumb and forefinger and as a result of creasing and bubbles, such as actually occurred during lift 6’s attachment to acetate tape. That itself could of course affect the ability of any examiner to match striations on the lift to any wood-grain pattern from which they derived.[30]The fact that a match was possible between Mrs Newman’s lift and the door does not appear to us significant. Mrs Newman explained that in making her lift on 11th August 2003 she had selected an area near the top of the door which would not normally have been handled or have as much contamination as elsewhere, and that she had applied maximum finger-pressure, to try to pick up all possible background noise. In contrast, when lifting a fingerprint, the usual technique for someone like Mr Smith to adopt would involve heavier pressure in the area of the print, and lighter pressure elsewhere. Mrs Newman confirmed that it was apparent that the taker of lift 6 had indeed concentrated on the areas of the two fingerprints shown in it. Whether for this reason or because of differing degrees of dust and contamination in any area from which lift 6 was taken, it is on any view clear that lift 6 has not picked up the whole of any wood-grain pattern. This as we have said undermines any attempt to match lift 6 with any area from which it derived. Mr Murat’s own evidence indicates that he expected to be able to make a perfect match. If he was looking for that, we do not find it in any way remarkable that he could not achieve it.[31]Mrs Newman and Mr Kershaw emphasised in their reports and evidence the point that any lift can only reflect the condition of the surface from which it is taken at the time it is taken. More accurately, features shown on a lift reflect the accumulation of aluminium powder applied for the purpose of the lift, together with pre-existing dust, grease and other contaminants. These substances accumulate in depressions in the surface, and are lifted on the adhesive tape when that is applied. If at a later stage, another lift is taken from the same spot or the surface there is simply inspected, the condition of the surface in that spot will be affected by, first, the removal of dust, grease and contaminants by the previous lift and, second, any further dust, grease or other contaminants that may have accumulated there since, and of course by any other incidents, or wear and tear, that may have occurred. In their view therefore there was no utility in seeking to compare lift 6, taken in 1995, with the surface, or further lifts taken from the surface, of a door inspected eight years later in August 2003, or nearly 10 years later now.[32]Mr Murat made the valid point that nothing can have affected the wood-grain itself on the door. Despite the long lapse of time since 1995 and the door’s history of use and movement, he did not see any reason to think that the wood-grain in the door would look different visually now or in 2003 when compared with the way in which it would have looked in 1995. Assuming that to be so, the comparison which he has undertaken was not between the door then and the door now, but between the door in 2003 and a lift taken eight years before in 1995. A lift is not a photograph. It is a reflection of physical factors identified by Mrs Newman and Mr Kershaw. The striations shown or not shown on a lift reflect the application of powder and the existence of dust and other contaminants in the surface on a particular day. They may or may not be exactly reproduced by a lift taken on another day, and they may not be capable afterwards of being precisely related to the original door, because of the removal of such powder, dust and contaminants, or the subsequent accumulation of further dust and contaminants. We accept that, if this was the only reason for questioning the validity of the comparison which Mr Murat undertook, we would have felt greater concern about the matter. But it adds to the other grave doubts which we have already expressed about the whole exercise which he undertook.[33]Both Mrs Newman and Mr Kershaw were challenged as to why they had not themselves attempted, and why they would not even now attempt, such an exercise as Mr Murat undertook. We have already indicated the reasons why they regarded this as inappropriate and of no utility. Any feeling on our part that they might have been more forthcoming is outweighed by the information which we have been given, and which Mr Kamlish stressed in other connections, to the effect that those representing the appellant have made repeated efforts in every direction, including with fingerprint, forensic science and computer experts, to find someone able to compare the background noise on the lift with the door. Mr Kamlish said openly that the reaction of all these experts had been the same as that of Mrs Newman and Mr Kershaw, namely that there was no utility in the exercise or no possibility of its being validly undertaken, that is until they were introduced to Mr Murat. For our part, if the exercise of comparing the wood-grain pattern of the door with the faint striations on lift 6 is one that could validly be undertaken at all, we do find it a matter of relevant comment that it could evidently not be undertaken by computer. But it clearly cannot be said to be surprising that individuals such as Mrs Newman and Mr Kershaw should refuse to contemplate it, because that is, as Mr Kamlish himself explained, the general reaction that the appellant’s legal representatives have also elicited through their enquiries.[34]We return to Mr Smith’s evidence. He only moved to Manchester in 1988 and only started working for the police in 1989. He was initially an intelligence officer, and became a scenes of crime officer in 1992. As such, particularly once he became a senior scenes of crime officer in 1994, he was involved in on the spot investigation of the most serious crimes, including violent murders. He retired in August 1996, explaining in his statement dated 6th July 2004 that this was “due to personal reasons and totally unconnected to any pre-existing condition”. In a later statement dated 2nd August 2004 he said that he wanted “to make it clear, that the fact that I was medically retired, was for Personal reasons and that it was not in any way, connected to my ability to carry out my Professional Duties at any time whatsoever”. In oral evidence, he explained that the personal reasons related to his marriage and led to his separation in 1997 and eventual divorce. Mr Kamlish cross-examined Mr Smith by reference to a statement to his doctor recorded in his medical records to the effect that he had begun to experience depression and felt that this was related very much to the work he had been doing and that he found himself thinking about instant crime scenes and reliving these episodes. Mr Kamlish suggested to him the possibility that he had wanted to get away from his work, because he had done something wrong – a suggestion that Mr Smith rebutted in a way which we found convincing. Mr Smith’s two statements were evidently concerned to rebut any suggestion that his medical unfitness reflected on his prior competence, particularly in August 1995. They are not inconsistent with him having personal problems, particularly depression, which involved flashbacks to the crime scenes, sometimes gruesome, which he had visited at work. Nor do we think that significance could be attached to his failure when speaking to his doctor to assign as a cause of his depression the marital problems which he told us he was then beginning to experience, but which were with hindsight of sufficient seriousness to lead to separation in 1997 and later divorce.[35]Mr Smith said that he had not had in any capacity any dealings with or knowledge of the appellant or his name prior to taking the lifts at 25 Frankton Road, and that he had not gone there with any person in mind. He said that he was 100% confident where he had lifted lift 6 and that there was absolutely no prospect that it came from elsewhere. He had not had available to him on 4th or 5th August 1995 any lifts from other sources. He was also emphatic that lift 7 had come from the piece of glass which he received on 6th August 1995 from DC Watson. He said at the trial that he had entered as the address for lift 7 on the acetate 25 Frankton Road, because that was where he was told it was from. In cross-examination he said that this was not misleading because it was a lift in relation to the investigation at 25 Frankton Road; and, for the same reason, it was not misleading to enter it as lift 7 on the 25 Frankton Road docket.[36]Mr Smith was cross-examined about the procedure he adopted. He acknowledged that it was unusual in one respect. Instead of using a standard crime scene examination report form, the information on which would then be transferred with the lifts onto and into a docket, he had used the docket to record lifts as and when he made them. He explained that, because he was called out to go to 25 Frankton Road on a Saturday, he only had with him in his car a docket. Mrs Newman confirmed that crime scene examination reports are usually kept in, and taken when needed from, the office, and are not part of the standard kit that scenes of crime officers carry with them.[37]Mrs Newman accepted however that Mr Smith was vulnerable to criticism in another respect. He had recorded on the acetate tape the address and date of the lift and its number and had initialled the lift at the edges. But he had not identified the location of the lift within the address, by writing “door” or “bedroom door”. Nor had he identified the orientation of the lift, although she said that the normal practice would involve placing the lift on the acetate tape the same way up as it had been on a door (and this would also be consistent with the way up the fingerprints would in fact have been, had the fingers been being used to push a door open). She said however that an examiner would not normally put exact measurements of a location on the lift. Drawing a diagram to show these had only become common practice in the last five years.

The legal issues on this appeal

[38]We turn now to consider whether the evidence which we have heard de bene esse should be admitted under s. 23 of the Criminal Appeal Act 1968, and whether, if admitted, it renders the jury’s verdict unsafe. Under s.23(1) “the Court of Appeal may, if they think it necessary or expedient in the interests of justice ….. (c) receive any evidence which was not adduced in the proceedings from which the appeal lies”. Under s.23(2) the Court shall, in considering whether to receive any evidence, have regard in particular to:
“(a) whether the evidence appears to the Court to be capable of belief; (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.”
[39]Under 2(1) of the 1968 Act, the Court “(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and (b) shall dismiss such an appeal in any other case.”[40]These provisions were considered by the House of Lords in R v. Pendleton [2001] UKHL 66’ [2002] 1 CAR 34. There Lord Bingham, with whom three other members of the House agreed, said this:
“18. Where the Court of Appeal has heard oral evidence under section 23(1)(c) (whether pursuant to its own decision, or by agreement, or de bene esse), the evidence will almost always have appeared, on paper, to be capable of belief and to afford a possible ground for allowing the appeal. By the time the court comes to decide whether the appeal should be allowed or dismissed, it will have heard the evidence, including cross-examination, and any submissions made on its effect. It may then conclude, without doubt, that the evidence cannot be accepted or cannot afford a ground for allowing the appeal. Such was the case, for example, in R v Jones (Steven) [1997] 1 CrAppR 86, where the court, having decided to receive and having heard opinion evidence from an expert, found conclusive objections to the acceptability of that opinion (see p 94). The court may, on the other hand, judge the fresh evidence to be clearly conclusive in favour of allowing the appeal. Such might be the case, for example, if a witness who could not be in any way impeached testified, on oath and after all appropriate warnings, that he alone had committed the crime for which the appellant had been convicted. The more difficult cases are of course those which fall between these extreme ends of the spectrum. 19. It is undesirable that exercise of the important judgment entrusted to the Court of Appeal by section 2(1) of the 1968 Act should be constrained by words not to be found in the statute and that adherence to a particular thought process should be required by judicial decision. Thus the House in Stafford were right to reject the submission of counsel that the Court of Appeal had asked the wrong question by taking as the test the effect of the fresh evidence on their minds and not the effect that that evidence would have had on the mind of the jury ([1974] AC 878 at 880). It would, as the House pointed out, be anomalous for the court to say that the evidence raised no doubt whatever in their minds but might have raised a reasonable doubt in the minds of the jury. I am not persuaded that the House laid down any incorrect principle in Stafford, so long as the Court of Appeal bears very clearly in mind that the question for its consideration is whether the conviction is safe and not whether the accused is guilty. But the test advocated by counsel in Stafford and by Mr Mansfield in this appeal does have a dual virtue to which the speeches I have quoted perhaps gave somewhat inadequate recognition. First, it reminds the Court of Appeal that it is not and should never become the primary decision-maker. Secondly, it reminds the Court of Appeal that it has an imperfect and incomplete understanding of the full processes which led the jury to convict. The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe.”
[41]The first question raised by the submissions before us was whether the evidence of Mr Murat would have been admissible at all. After his initial report, it was said on behalf of the appellant that “Based on his expertise in woodgrain, Mr Murat is of the opinion that [lift 6] could not have been removed from the [small bedroom] door” After his second report, his evidence was advanced on the basis that “Having examined the original fingerprint lift [lift 6] …. and the door itself, in his opinion, there is no match between the woodgrain which is present in the fingerprint lift and the woodgrain on the surface of the door”. Before us, Mr Kamlish submitted that Mr Murat had relevant expertise in two respects:(1) in identifying woodgrain and in distinguishing it from contaminants and(2) in rebutting any suggestion that the varnish on the door makes comparison between lift 6 and the small bedroom door impossible. Mr Kamlish did not advance him as an expert in the comparison of such a lift and a door. But he submitted that the exercise of comparison that Mr Murat had undertaken was a matter of observation which could be presented to a jury for them to evaluate.[42]The relevant principles regarding expert evidence were not in issue before us. In Robb (1991) 93 CAR 161, 165 Bingham LJ said that:
“the two relevant questions are whether study and experience will give a witness’s opinion an authority which the opinion of one not so qualified will lack, and (if so) whether the witness in question is skilled and has adequate knowledge. If these conditions are met the evidence of the witness is in law admissible, although the weight to be attached to his opinion must of course be assessed by the tribunal of fact.”
The question in that case was whether it was the defendant who had made ransom demands and given a cab instructions which were captured on a tape recording which the Crown sought to compare with a control video tape containing the defendant’s voice. The expert called by the Crown was a phonetician who was “well qualified by academic training and practical experience to express a view on voice identification”. The court considered that “his judgment, based on close attention to voice quality, voice pitch and the pronunciation of vowels and consonants would have a value significantly greater than that of the ordinary untutored layman, as the judgment of a hand-writing expert is superior to that of the man in the street”.[43]In Clarke [1995] 2 CAR 425, a robber had been filmed on CCTV, from which stills were made. These were sent to Dr Vanezis, a pathologist and director of the Facial Identification Centre at Charing Cross Hospital, who compared the stills with police identification photographs using the then new technique of video superimposition. The court said this: “It is essential that our criminal justice system should take into account modern methods of crime detection. It is no surprise, therefore, that tape recordings, photographs and films are regularly placed before juries. Sometimes that is done without expert evidence, but, of course, if that real evidence is not sufficiently intelligible to the jury without expert evidence, it has always been accepted that it is possible to place before the jury the opinion of an expert in order to assist them in their interpretation of the real evidence. The leading case on that point is Turner (1975) 60 Cr.App.R 80, [1975] Q.B. 834. We would add this. There are no closed categories where such evidence may be placed before a jury. It would be entirely wrong to deny to the law of evidence the advantages to be gained from new techniques and new advances in science. An illustration is to be found in the case of Stockwell (1993) 97 Cr.App.R. 260. That case also involved a bank robbery. The robber was disguised. The prosecution tendered facial mapping evidence through an expert. The principal point on the appeal was whether the judge had rightly permitted that expert evidence to be adduced. The Court referred to the decision on Turner and then remarked as follows at pp. 263-264: ‘Where, for example, there is a clear photograph and no suggestion that the subject has changed his appearance, a jury could usually reach a conclusion without help. Where, as here, however, it is admitted that the appellant had grown a beard shortly before his arrest, and it is suggested further that the robber may have been wearing clear spectacles and a wig for disguise, a comparison of the photograph and defendant may not be straightforward. In such circumstances we can see no reason why expert evidence, if it can provide the jury with information and assistance they would otherwise lack, should not be given. In each case it must be for the judge to decide whether the issue is one on which the jury could be assisted by expert evidence, and whether the expert tendered has the expertise to provide such evidence.’ After dealing with the evidence of facial mapping the Lord Chief Justice observed that the judge described it as “breaking new ground”, and then quoted with approval the observation by the trial judge (at p. 264): ‘’One should not set one’s face against fresh developments, provided they have a proper foundation…’’ There are, of course, differences between the case of Stockwell and the more developed technique used here. But for our part we regard those differences as raising no issue of principle whatever. Indeed, what is involved here is simply an extension of the technique used in Stockwell. We are far from saying that such evidence may not be flawed. It is, of course, essential that expert evidence, going to issues of identity, should be carefully scrutinised. Such evidence could be flawed. It could be flawed just as much as the evidence of a fingerprint expert could be flawed. But it does not seem to us that there is any objection in principle.” ‘Where, for example, there is a clear photograph and no suggestion that the subject has changed his appearance, a jury could usually reach a conclusion without help. Where, as here, however, it is admitted that the appellant had grown a beard shortly before his arrest, and it is suggested further that the robber may have been wearing clear spectacles and a wig for disguise, a comparison of the photograph and defendant may not be straightforward. In such circumstances we can see no reason why expert evidence, if it can provide the jury with information and assistance they would otherwise lack, should not be given. In each case it must be for the judge to decide whether the issue is one on which the jury could be assisted by expert evidence, and whether the expert tendered has the expertise to provide such evidence.’ ‘’One should not set one’s face against fresh developments, provided they have a proper foundation…’’[44]Most recently in Dallagher [2002] EWCA Crim 1903; [2003] 1 CAR 12, the Crown relied on a comparison by two experts (Mr Van Der Lugt, a Dutch police officer who had specialised in ear print comparison for over a decade and, once again, Prof. Vanezis) of ear print marks found on a window with control prints provided by the defendant and others. After conviction, new evidence emerged about the misgivings that some forensic experts had about the extent to which ear print evidence alone could, in the present state of knowledge, safely be used to identify a suspect. The Court set aside the verdict and ordered a retrial. It cited Bingham LJ’s words in Robb regarding the need both for study and experience to give a witness’s opinion an authority which the opinion of one not so qualified will lack and for skill and adequate knowledge. It said in relation to the case before it that it would not have been possible to exclude the evidence about the finding of the ear prints and their comparison by Mr Van Der Lugt and Prof. Vanezis, but that the issue was as to the value of their conclusion, or in other words weight. The Court concluded that the fresh evidence threw doubt on this and so on the safety of the verdict.

Conclusions

[45]In all these cases, the making of the relevant comparison was itself treated as a matter to be undertaken by an appropriately qualified and skilled expert. Here, we are satisfied that Mr Murat has no experience or expertise in the relevant comparison; and indeed, as we have observed, Mr Kamlish does not put him forward as having this. Mr Murat does have expertise in identifying woodgrain in wood, including veneer, and also in doing so despite or making allowances for the presence of varnish. But he has no expertise in the interpretation of lifts, or in the identification of wood-grain on lifts. He himself said that he was relying on a fingerprint expert for an assumption that the striations in lift 6 reflected wood-grain. However, we are prepared to accept and to proceed on the basis that the striations which can be seen on lift 6 do derive from wood-grain. But the completeness and precision of the reflection depends on factors such as the quantity of powder and pressure used and the extent of any grease or other contaminants lifted. Mr Murat has no experience or expertise to enable him to judge the extent to which the striations which show on the lift are complete or do or may completely or precisely reflect the wood-grain evident on the door; we have already indicated why it appears that the striations are not and do not.[46]In those circumstances, we do not consider that any expert evidence that it is said that Mr Murat could give could afford any ground for regarding the jury’s verdict as unsafe or therefore for allowing an appeal (cf s.23(2)(b)). However, Mr Kamlish submits that Mr Murat’s exercise in comparison is one which could have been admitted at trial as a matter of observation. He asks rhetorically: how else is the appellant to be able to challenge his conviction, in the apparent absence of (demonstrated by the appellant’s lawyers’ strenuous but unsuccessful attempts to locate) any other relevant expert? The interests of justice in Mr Kamlish’s submission justify the admission of Mr Murat’s comparison. Even if we were to accept this submission, however, we would have to consider what weight might attach to the exercise which Mr Murat undertook. This consideration arises both when considering under s.23(2)(b) whether the evidence “may afford any ground for allowing the appeal” and, if we treat the evidence as having been admitted, when considering whether the verdict is unsafe. For reasons which we have already given, we consider that, quite apart from the technical issue whether Mr Murat’s evidence is admissible, his evidence regarding the comparison he made lacks any substantial force. We refer to his lack of knowledge regarding the taking of lifts and the significance and interpretation of features appearing in them, his lack of any significant experience of prior comparisons, and the absence of any record of the exercise which he undertook. Further, although unnecessary to rely on, there are positive indications in the evidence of Mrs Newman (which we found convincing on this point) that the exercise was, although clearly well-intentioned, haphazard and random. If we pose to ourselves the question whether the jury’s verdict in this case might reasonably have been affected by Mr Murat’s evidence as we have heard and seen it, we would answer that question in the negative.

Safety generally

[47]The issue of safety of the jury’s verdict can also be viewed against a wider background. In order to have any prospect of undermining the almost inevitable inference to be drawn from the presence of otherwise unexplained fingerprints belonging to the appellant inside the Pickles’ home on 5th August 1995, the appellant had evidentially to raise some possibility that the prints in lift 6 may have come from elsewhere. In practical terms, that meant some mix-up, but there was nothing to make that remotely plausible, or, as the judge indicated to the jury, some possibility of a deliberate plant, coupled with perjury by the police called at trial. The finger has been pointed at Mr Smith, but, having heard his evidence ourselves, we find no support for the possibility in either its content or in the way in which it was given. Mr M. Wilson, now deceased, has also been mentioned in this connection. Again there is nothing to support that. Points have been sought to be made on the documents, but we see no force in them. It was suggested, for example, that there may be significance in the manual alteration of the print on the docket so that, instead of reading “All the impressions have been eliminated. The fingerprint case is now closed”, it read simply “Some of the impressions have been eliminated”. But that was entirely appropriate and indeed necessary in circumstances where lifts 1 to 5 were found to relate to persons on the premises with authority, but lifts 6 and 7 were found to relate to a suspected intruder, later identified as the appellant. The insertion on lift 7 of the address of 25 Frankton Road also appears entirely explicable and innocent. If lift 7 was not genuine, but was introduced as a plant under the pretence that it came from the Lonsdale car park, the person or persons planting it would hardly have put it forward as coming from 25 Frankton Road. The idea that Mr Smith on 6th August 1995 originally intended to put it forward as coming from Frankton Road and later changed his mind to refer to the Lonsdale car park is not consistent with the entries that he made on the docket which he passed on to Mr M Wilson on 7th August 1995, which identified the bottle with the initials “WB1”, referring to PC William Barclay whose only known or suggested involvement consisted in his visit with Mr Wilson the taxi-driver to the Lonsdale on Saturday, 5th August.[48]The whole subject of lift 7 is in our view of some interest in relation to the safety of the verdict. In order to try to explain lift 6, the appellant has to suggest planting by Mr Smith or possibly Mr M. Wilson. But lift 7 provided an important further link between the date and immediate vicinity of the crime and the appellant. The taxi-driver Mr Stephen Wilson gave evidence of the fare he picked up some 250 metres from 25 Frankton Road shortly after the time of the crime, and that his passenger threw a soft drinks bottle against the wall of the Lonsdale public house, breaking it. He also attended an identification parade on 11th September 1995, when the persons presented had the lower parts of their faces covered by scarves and their heads covered with hats. He first thought that his fare was no. 4 in the line, and asked that he remove his hat, whereupon he excluded him. He then asked whether he was only allowed just one, and on being told yes, said “No. 5 seems very similar”. No. 5 was in fact the appellant, but Mr S. Wilson was not permitted to ask him to remove his hat or further to confirm any identification.[49]Both Mr S. Wilson and PC William Barclay gave evidence that Mr Wilson took PC Barclay back to the Lonsdale Public House on Saturday 5th August. PC Barclay there found pieces of a Britvic bottle - according to Mr Wilson in the place where his passenger had broken a bottle. PC Barclay’s evidence was that one of these pieces was exhibit WB1, which he handed to DC Watson on the same day, and DC Watson’s evidence was that he passed this on to Mr Smith on 6th August 1995. It appears marked WB1 on the docket which Mr Smith had opened and which he passed to Mr M. Wilson with all the lifts on 7th August 1995. If lift 6 was planted but lift 7 was genuine, it would have to have been the most remarkable coincidence both that the police chose to frame the appellant and then discovered, on a shard in a deserted car park in Cheetham Hill where the appellant happened from time to time to throw bottles, a genuine fingerprint belonging to the appellant, and that someone quite different should, shortly after the commission of the crime, take a taxi from near to the scene of crime in Whitefield to that deserted public house in Cheetham Hill and there throw another bottle (which PC Barclay seems also to have missed on the search which Mr S. Wilson directed him to make in the relevant place). If, on the other hand, one were to postulate the possibility of both lifts 6 and 7 being planted by the police, the implication must be that the police not only had in their possession from some unexplained prior date lifts of the appellant’s fingerprint derived from a door with a grain generally similar to that of the Pickles’ small bedroom door, but also had in their possession a lift of his fingerprint from a glass surface, and that they decided to plant that on a glass shard found in a deserted car park in a different area of Manchester to 25 Frankton Road where, by pure coincidence and luck, the defendant subsequently disclosed that he used to eat sandwiches and from time to time discard glass bottles.[50]In summary, we consider that any expert evidence that Mr Murat can give is of very limited relevance, and he is not qualified to give expert evidence comparing lift 6 with the door. But, leaving that on one side and treating the whole of his evidence, including that given regarding the exercise of comparison which he undertook, as admissible, we do not consider that it has weight sufficient to throw any doubt on the safety of the jury’s verdict. We have seen nothing to lend any support to the wide-ranging allegations of police misdoing, particularly by Mr Smith and/or Mr M. Wilson, which are inherent in the suggestion that lift 6 and/or lift 7 was or were planted. On the contrary, as we have said, any such proposition faces the difficulty that it itself postulates the occurrence of considerable and surprising coincidences. We have considered the possibility, raised before us by Mr Kamlish, of a reference to the Criminal Cases Review Commission for further investigations and a report to the Court to be made under s.23A(1) of the Criminal Appeal Act 1968. Having regard to each of sub-paragraphs (b) and (c) and in the light of our conclusions fortified by the appellant’s own complete failure to find any expert other than Mr Murat supporting the feasibility of the comparison which they wish to undertake, we see no basis for that. This appeal therefore falls to be dismissed.