“In the light of the evidence available to the defence at trial but uncalled of Dr Lawler, Dr Hunt, Professor Vanezis, Professor Milroy, Dr Hill, it can be shown that the evidence given by Dr Armour relating to the cause of death central to the crown’s case on count 1, could not be justified on the facts available to her.”
“23.─ (1) For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice─ a) … b) … c) receive any evidence which was not adduced in the proceedings from which the appeal lies. (2) The Court of Appeal 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 subject of the appeal; and d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.” a) … b) … c) receive any evidence which was not adduced in the proceedings from which the appeal lies. (2) The Court of Appeal 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 subject of the appeal; and d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.”
“[31] In the board’s view the law is now clearly established and can be simply stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal, assuming always that it accepts it, to evaluate its importance in the context of the remainder of the evidence in the case. If the court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the accused it will dismiss the appeal. The primary question is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury. That said, if the court regards the case as a difficult one, it may find it helpful to test its view ‛by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict’: R v Pendleton[2002] 1 All ER 524 at [19]. The guiding principle nevertheless remains that stated by Viscount Dilhorne in Stafford v DPP[1973] 3 All ER 762 ,[1974] AC 878 at 906, and affirmed by the House in R v Pendleton: “While the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question [whether or not the verdict is unsafe]” [32] That is the principle correctly and consistently applied nowadays by the criminal division of the Court of Appeal in England – see, for example, R v Hakala[2002] EWCA Crim 730 ,[2002] All ER (D) 277 (Mar), and R vIshtiaq Ahmed[2002] EWCA Crim 2781 ,[2002] All ER (D) 80 (Dec). It was neatly expressed by Judge LJ in R v Hakala, at [11], thus: “However the safety of the appellant’s conviction is examined, the essential question, and ultimately the only question for this court, is whether, in the light of the fresh evidence, the convictions are unsafe” “While the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question [whether or not the verdict is unsafe]” “However the safety of the appellant’s conviction is examined, the essential question, and ultimately the only question for this court, is whether, in the light of the fresh evidence, the convictions are unsafe”
“…red blood cells in the fracture line, deficiency in the lining over the left superior horn, reddish discolouration around both fracture sites, bleeding into the surrounding tissues and the X-Ray findings.”
“Bilateral fractures to the thyroid cartilage are consistent with compression of the neck as in manual or ligature strangulation, but it does not necessarily mean that there was a fatal outcome. It would be very unwise to assume this was the case, bearing in mind the lack of physical signs. It was odd that the larynx was excised and preserved in formalin after the post-mortem if there was no suspicion as to the cause of death and no expectation of a second post-mortem.”
“I enclose some further opinions in this case. I appreciate that my views, apart from allowing for some possibility of doubt, are not of great value to your client. Is it possible that the opinions of Dr Lawler, as a prosecution expert, might be sufficient to reduce the charge to one of manslaughter? After all, a short sharp compression of the neck might not be expected to cause death. ”
“The significance of ante mortem fractures to the neck means that there was some violence to this region. This would include a fall onto the neck, a momentary grasp of the neck, during the resuscitation process or due to strangulation. There was no history of Mary Bowman falling or striking her neck. It is not known if Mary Bowman was resuscitated but in my experience this is most unlikely to cause fractures at this site. This leaves strangulation or “momentary grasp” of the neck. Whatever the terminology both of these terms imply a violent attack to the neck. These are fractures. They are typical sites associated with strangulation.”
“…it is common ground that whether you can sort of call it considerable compression force or firm force was required to produce it”
“In this case, I am entirely satisfied that Dr Armour has identified fractures of both superior horns of the thyroid cartilage of the larynx, and, furthermore. I believe that she has also demonstrated intact red blood cells at the fracture sites. If these are, indeed, intact red blood cells, then I have considerable difficulty in accepting that the laryngeal fractures would have been caused by rough handling during the first post mortem examination which took place over 48 hours after death.”
“In my original Statement I addressed other possible causes of death ─ toxicological and blunt trauma to the head. To reiterate I am not a Toxicologist but discussed the toxicological findings at the time of the exhumation with a Forensic Scientist. As a Pathologist I would doubt that this combination of alcohol and Valium, in this case, would cause death but for a definitive and expert opinion a Toxicologist would provide an authorative view that death was due to blunt head trauma. There is no evidence to support this diagnosis.”
“… the issues may not be quite as complex as you might thought have appeared first…first thought. Are you sure that the damages to both horns of the thyroid cartilages are fractures? If you are sure, it is common ground that whether you can sort of call it considerable compressive force or firm force was required to produce it. Secondly, are you sure that they were caused before death or could Dr Gordon in some clumsy fashion have used such force to cause both fractures in the moving or handling the block of organs which included the entire neck structure? Thirdly, if you are sure that Dr Gordon didn’t cause these fractures, are you sure that the defendant did? And furthermore that these fractures were a substantial cause of death? Dr Amour was prepared to express the conclusion that death was by strangulation. There’s no suggestion that her…Mary Bowman’s handling from the…from 16 Sudworth Road in the ambulance to the hospital or anything that happened to her in the hospital before the post-mortem would have caused these fractures that’s why I put 2 possibilities. Professor Whitwell took the view that she could not reach a conclusion as to whether the fractures were before death. She said “I don’t know. I have serious doubts” she said. She called the cause of death as unascertainable and if you have reasonable doubts, of course so must you. Unless you are sure that these fractures were caused by the defendant, then this case in murder doesn’t even start. You must also be satisfied so that you are sure that the fractures were a substantial cause of death. Finally, because Lord Carlile specifically mentioned the possibility that he’d put his wife’s chin up to open an airway in a proper attempt to resuscitate he might have compressed both horns of the cartilage, you have to be sure whether for murder or manslaughter that such force as was required to produce the fractures was not inflicted accidentally in an attempt to resuscitate. Do you follow. In asking these questions in this way I am not ignoring or excluding the evidence of the toxicologists to which I shall now turn and I remind you that you ask these questions not merely based on the opinions of the experts whose evidence you are free to accept or reject but also the rest of the evidence in the case.”
“2.5 Summary. The memories from below about 7 years in age were formed during the period in which the brain, the self, memory, comprehension, language, and the emotions were all undergoing rapid and intense development. Memories from this time are likely to contain errors and in some cases will be entirely wrong. This is the case for everyone, there is nothing unusual about it and it simply reflects the fact that, in humans more so than in any other animal, cognition develops after birth. It means, however, that memories from this period, when the individual was aged 5 to 7 years or less should be treated with caution. As a memory researcher I would not rely on the accuracy of such memories unless there was additional, independent, corroborating evidence. ”