Kempster, R v [2008] EWCA Crim 975

[2008] EWCA Crim 975

Case No 2007 02896 D4

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 07/05/2008

Before

LORD JUSTICE LATHAM

MRS JUSTICE SWIFT

MR JUSTICE FOSKETT

Between

RCrown

KempsterDefendant

(Transcript of the Handed Down Judgment of

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Michael Mansfield QC and Alan Masters on behalf of Mark Kempster

Paul Garlick QC for Crown

Hearing Hearing date: 16 April 2008

Judgment

Lord Justice Latham :

[1]On the 30 March 2001, the appellant was convicted of three counts of burglary and one count of attempted burglary. On the 20th April 2001 he was sentenced to 10 years imprisonment for each of the burglary offences and 5 years imprisonment for the attempted burglary, all sentences to run concurrently. He applied for leave to appeal against both convictions and sentence. The single judge refused leave to appeal against conviction and granted leave to appeal against sentence. The conviction application was renewed, and the full court granted leave. The appeals were heard on the 11th December 2003 when this court dismissed both appeals.

[2]The present appeal against conviction has been brought on the basis of a reference by the Criminal Cases Review Commission dated the 23rd May 2007 on three grounds: i) Fresh evidence relevant to count 1 on the indictment which might have undermined the expert prosecution evidence that the recovered ear mark from the scene matched the ear-print provided by Mr Kempster. ii) New legal argument based on the decision of the House of Lords in Coutts which indicates that the Recorder should have left an alternative count of either theft or handling stolen goods for the jury’s consideration on count 4 of the indictment. iii) Counts 2 and 3 are referred by virtue of their connection to count 4.

[3]On the 30th November 2007, this court rejected the argument in ground (ii) based upon Coutts, and ordered that the issue arising out of the fresh evidence be adjourned. That is the issue with which we are now concerned. However, Mr Mansfield QC on behalf of the appellant has applied for leave to argue a further ground, namely that if the appeal against the conviction on count 1 succeeds, that casts doubt upon the safety of the appellant’s convictions on counts 2, 3 and 4.

[4]Count 1 related to a burglary which took place in the night of the 3 to 4 June 2000 at the home of an 89 year old lady, Mrs Hooker, who was asleep at the time. She was awoken by the presence of a man in her room and pressed her lifeline alarm. The man’s head was covered by a hood. He told her that if she told him where the money was, he would not hurt her. He took £45 from her handbag. The alarm resulted in the police being alerted at 12.16am. Mrs Hooker attended a video identification parade but was unable to select anyone from it.

[5]The rear kitchen window to the premises had been forced. The police recovered an ear-print from the fixed window pane to the side of the window that had been forced. Expert evidence was heard at the trial from Miss McGowan, a fingerprint expert of 15 years standing, who had been involved in the analysis of ear-prints since 1996, to the effect that no two ears left the same mark and that in her view the ear-print found on the window pane matched ear-prints subsequently taken from Mr Kempster.

[6]Mr Kempster was interviewed about this burglary on the 19th June 2000, after his arrest in relation to the offences which formed the subject matter of counts 2, 3 and 4 of the indictment. He did not deny knowing Mrs Hooker’s address, but he denied going to the rear of the property. He was re-interviewed on the 5th July 2000 after the police had received Miss McGowan’s report. He did not accept that the ear-print was his, but he admitted that he had done some work at Mrs Hooker’s address, namely pointing, tiling and putting up a new facia board, some four or five weeks previously. He said that he had provided the owner with a receipt. He could have leaned against the window at some stage of doing that work. He had carried out the work with Robert Smith, who lived in a caravan next to his mobile home.

[7]At the trial, the prosecution contended that Mr Kempster had lied during these interviews. Mrs Hooker had a receipt from the appellant showing that he had been paid £45 for carrying out precisely the same work, but dated the 12th February 2000. A neighbour had heard an argument between Mrs Hooker and the appellant as to the price that she had to pay. Further, evidence was called from window cleaners who said that they cleaned Mrs Hooker’s windows regularly, once a month. The prosecution, accordingly, submitted that because of the row, it was highly unlikely that Mrs Hooker would have let the appellant back to do any further work, so that the only work that was done was done in February. Even if he had placed his ear against a window on that visit, it would have been removed by window cleaners long before June 2000.

[8]As far as counts 2, 3 and 4 are concerned, they related to the offences in the early hours of the 17th June 2000. About 1.45am, Mr and Mrs Hayward were awoken by a noise. Mr Hayward went to investigate and disturbed an intruder as he was climbing through the kitchen window which had been forced. The intruder fled. About one hour later, Mrs Douglas, like Mrs Hooker an 89 year old lady, in failing health, awoke to find a man in her bedroom with his back to her. He left the room, she discovered that her bungalow had been searched and that £850 worth of jewellery was missing. She was unable to select anyone from an identification parade. Perhaps most significant, in the following hour, a third house was entered without waking the occupiers, Mr and Mrs Martin. Bank cards and cash were stolen. At about 4am Mr and Mrs Martin were awakened by the telephone. The caller claimed to be a police officer and said that they had been burgled and the bank cards that had been stolen had ended up in the hands of the police. The caller asked them to disclose to him the pin numbers of their cards so that he could put a stop on them from the police station. The caller sounded confident and educated and was polite. He gave the names of two police officers who would call at the premises.

[9]Mr and Mrs Martin were however suspicious, and while Mrs Martin continued to speak to the caller, Mr Martin called the police on their second phone line. The call purportedly from the police was traced to a telephone box close to where Mr Kempster lived. A police sniffer dog followed a track from a telephone box to Bay Farm where Mr Kempster lived in a mobile home. A palm print from Mr Kempster was found on the hand-set of the phone. Immediately prior to the call made to Mr and Mrs Martin, a call had been made from the same phone box to a taxi company booking a taxi for a Mr Stevens to Albion Towers in Southampton. A return journey was then made between Bay Farm and Albion Towers and back to Bay Farm at about 4.40am. Although he was not identified by that taxi driver, a different taxi driver from the same firm identified Mr Kempster as being a regular customer who used the name “Stevens”.

[10]After his arrest, Mr Kempster stated that he had been at home looking after the children that night. He denied committing any burglaries and denied making the phone call. He said that his neighbour, Robert Smith, had been around that night. Robert Smith was himself called to give evidence. He was in prison for burglary at the time of the trial. He was called by the Crown at the request of the defence. He said that he had committed all four burglaries, but when cross-examined by the Crown after being treated as a hostile witness, he was unable to state the type of houses that had been burgled, what he had taken, how he had entered the premises, or whether any of them had been occupied.

[11]A submission of no case to answer was rejected by the Recorder, whereupon Mr Kempster dispensed with the service of his instructing solicitors. There was a short adjournment while Mr Kempster then considered his position. At the end of the adjournment, both the solicitors and counsel considered themselves to be professionally embarrassed and withdrew. The Recorder declined to adjourn or discharge the jury; thereafter Mr Kempster defended himself. He gave evidence, in which he denied committing any of the burglaries. As to count 1, if the ear-print was his, it must have been left on the window while he was working at the house perfectly legitimately. He thought that he had made it clear to the police that he had in fact gone to Mrs Hooker’s twice. He made the point that it was hardly likely that he would have burgled the house where the occupant could identify him. He said that on the night in question he had been at a family night out and had returned home at about midnight when he discovered that his horse had given birth to a foal. His wife, mother and brother-in-law gave evidence in support of the alibi. His sister’s statement was read.

[12]In relation to counts 2, 3 and 4, Mr Kempster accepted, contrary to his previous accounts, that he had received a credit card relating to count 4 that night and had made the telephone call to Mr and Mrs Martin. He had been given the card by Robert Smith who had arrived at his trailer just before 4am on the 17th June 2000. Up until then he had indeed been looking after the children while his wife was with her sick mother. He had not told the police the truth about his movements after the phone call, as he did not want his wife to know about an affair he was having with a woman who lived at Albion Towers. He was not aware that Robert Smith was a burglar or that the credit card was the fruits of a burglary. In cross-examination he accepted that the ear-print was his. He said that it could have got there by listening at the window to see if Mrs Hooker was in or by leaning against it with a ladder. He said that he had not mentioned doing work at Mrs Hooker’s house in his first police interview because he had forgotten about it.

[13]The appellant was convicted unanimously on count 1 and by a majority of ten to two on counts 2, 3 and 4. In sentencing the appellant, the Recorder noted that the offences were all against vulnerable and elderly victims, and that his record included a sentence of 7 years imprisonment in 1994 for numerous thefts and for obtaining by deception offences relating to the provision of sub-standard building and tarmac work at exorbitant prices at the homes of elderly and vulnerable victims. In the pre-sentence report, it was said that the appellant’s offending was motivated by the need to fund a serious drug habit.

[14]As we have said, the appellant applied for leave to appeal against conviction and sentence, leave to appeal against sentence was granted, but leave to appeal was refused by the single judge. He renewed his application in relation to conviction after the Court of Appeal’s judgment in R v Dallagher

[2002] EWCA Crim 1903

. The appellant’s then representatives obtained an expert report from Professor Champod and as a result sought to argue that the ear-print evidence was inadmissible, or of no probative value, and in particular, that it was impossible to make a positive finding as to the identity of the maker of an ear-print. The appellant was granted leave by the full court to appeal against conviction on this and other grounds. At the hearing of the appeal, Professor Champod gave evidence. He had not himself compared the original ear-print found at the scene with the ear impressions provided by the appellant, but had worked on the basis that certain features of the print and impression did indeed correspond. His conclusion was that in the light of the fact that this area of science was in its infancy, and developing, ear-print comparison was a valuable investigative tool and could properly be used to exclude a person as a suspect, but that it could not provide a positive identification of a suspect. All that could be said was that it was consistent.

[15]Having heard his evidence, and that of Miss McGowan, and having considered the judgment in Dallagher, the court rejected that opinion. It concluded, as had the court in Dallagher, that the evidence was admissible, and could be used by the jury to conclude that it was indeed the appellant who was the maker of the mark. In addition to Miss McGowan’s evidence, there was the admission by the appellant himself that it was his ear-print; and in any event Professor Champod had not examined the ear-print or made any comparison with ear-prints taken from the appellant. As far as sentence was concerned, the court concluded that it was severe but justifiably so bearing in mind the identity of the victims.

[16]On the 16th December 2003 the Court of Appeal certified a point of law of general public importance under s.1 (2) of the Administration of Justice Act 1960 but refused leave to the House of Lords. The question was as follows:

“Whether an expert witness giving “ear-print” comparison evidence can admissibly give evidence at a criminal trial beyond a finding that the defendant’s print and the scene lift, are consistent with each other: and in particular expressing an opinion at the scene print left by the defendant.”

[17]On the 1st April 2003 the House of Lords refused to grant leave to appeal on the certified question.

[18]The appellant then applied to the Criminal Cases Review Commission. The application was based essentially on an expert report produced by Dr Ingleby of the 20 June 2006. He is a mathematician who had been closely involved in a European research project known as FearID. This had been set up in order to evaluate the use of ear-print evidence which was in widespread use, particularly in Holland, and to attempt to produce a protocol or protocols in order to standardise procedures and reports. Dr Ingleby’s conclusion was that the prints used in the appellant’s case were not of sufficient quality to conclude safely that there was a match; on the contrary, the gross anatomical features of the ear, visible in the crime scene mark did not accord with the reference prints provided by the appellant. It was submitted on the appellant’s behalf that if this was correct, so that the conviction on count 1 was unsafe, that would have a knock on effect in relation to counts 2, 3 and 4 so as to undermine the safety of those convictions. Further, even if the convictions on counts 2, 3 and 4 were upheld, the sentence of 10 years imprisonment for those three counts only would be manifestly excessive.

[19]The CCRC, having examined the report of Dr Ingleby and his conclusions, and the evidence of Miss McGowan, concluded that there was a real possibility that the conviction on count 1 might be overturned. However, it came to the provisional view that there was no real possibility that the convictions on counts 2, 3 and 4 would be overturned or that the Court of Appeal would reduce its overall sentence. The appellant was invited to make further submissions, which he did.

[20]The further submissions were based on the one hand on extensive further argument on the linkage between count 1 and counts 2, 3 and 4 but also and most significantly on the perceived effect of the decision of the House of Lords in R v Coutts. As to the former, the Commission did not come to any concluded view but indicated that the appellant’s legal representatives could seek leave of the court to argue this ground. However, it concluded that the Coutts argument was one which was available to the appellant in relation to count four. As a result, because of the inextricable link between count 4 and counts two and three, so that there was a real prospect of the convictions on those counts being quashed, there was no reason for not referring count 1. Accordingly, the conviction was referred on the three grounds we have set out in paragraph two of this judgment.

[21]As we have already indicated, this court has dismissed the appeal based on Coutts. We are accordingly concerned with the appeal in so far as it relates to count 1, and, as anticipated by the Commission, an application for leave to appeal in relation to counts 2, 3 and 4 on the grounds that, if the appellant is successful in relation to count 1, the convictions on counts 2, 3 and 4 are unsafe as they must, to some extent at least, have been affected by the jury’s verdict on count 1.

[22]In support of the appellant’s appeal and application, we heard the evidence of Dr Ingleby and Miss McGowan. It is right to say that their expertise is very different. As we have indicated, Dr Ingleby is a mathematician and a Reader in Applied Mathematics at the University of Huddersfield. His work in relation to the comparison of ear-prints had essentially been concerned with statistical analysis. But he has had the opportunity, as a result of his extensive work with FearID, both to understand the physiology and technology involved in ear-print comparisons and to consider the level of probability of a match from any given comparisons. Miss McGowan is a fingerprint officer of great experience with the Lancashire Constabulary, who has been trained in ear-print comparison techniques at the recognised course under the direction of the Association of European Police Colleges in Zutphen, Holland. She has had eleven years experience of comparing ear-prints. She accepted at the trial that the use of ear-prints was still in its infancy. She accepts that the work with which Dr Ingleby has been connected for FearID is the most detailed examination there has been of the use of ear-prints in forensic science. It should be said that both Dr Ingleby and Miss McGowan agree that FearID has not yet produced any definitive conclusions, but a number of papers have been published arising out of its work.

[23]It should be stated, at the outset, that Dr Ingleby accepts that there may be circumstances in which a comparison of ear-prints will permit a positive identification to be made of the person who left the print in question. Indeed the purpose of the work that he has carried out is to make comparisons more reliable. Both he and Miss McGowan are also agreed that ear-prints present a different and more difficult problem than fingerprints. Ears are cartilaginous structures which are flexible and deform when subjected to pressure. Further, ear-prints are usually left by those who are listening for something or someone by pressing their ear against a surface, and will not necessarily remain motionless but may adjust their position thereby further distorting the shape of the ear and the mark that it leaves.

[24]Before turning to the areas of disagreement between Dr Ingleby and Miss McGowan, we should describe the way in which ear-print comparison is made. The suspect mark will usually be dusted, in the same way as a fingerprint, and the residue lifted from the surface on clear tape. The suspect will have prints taken of his relevant ear by pressing the ear against a surface at three nominal pressures, low, medium and high. This was done in the present case in two ways. Firstly, the ear was pressed against a surface which was then dusted in the same way as the ear-print from the scene. The second was to use a marking liquid on the ear which was then pressed against a surface in the same way, that is at three nominal pressures. The word nominal refers to the fact that these pressures were not calibrated or calculated pressures, but just descriptive. For illustrative purposes, Miss McGowan at the trial superimposed two transparencies, one being the transparency of the print at the scene, and the other being the dusted print at heavy pressure taken from the appellant. It should be said that she herself did not take the sample prints, this was done by others. She used that superimposition to illustrate her conclusion that there was a proper match between the two, supporting her conclusion that the ear-print left on the window was produced by the appellant’s ear.

[25]Dr Ingleby’s criticisms fell essentially into three parts. First, he sought to demonstrate to us that even a comparison of the prints as overlaid by Miss McGowan showed a mismatch which in his view was significant, in other words was not one which was explained by difference of pressure, or movement. Second, he produced his own transparencies in which the impressions left by the ear were differently coloured on each transparency, so as to accentuate, as he submitted, the discrepancies between the two prints. Thirdly, he said that in any event the prints were of such quality that only what he described as the gross detail was visible and could be compared, that is the main cartilaginous folds, whereas the work with which he had been connected established in his view that the only reliable indicators for a match were what he described as the minutiae. These are the small anatomical features such as notches, nodules or creases in the ear structure. There were, in his view, only two such minutiae apparent from the prints in question, namely a nodule and a notch on the upper rim of the helix, which is the outside rim of the ear. Careful measurement, he submitted, showed that the distance between the two was different on the print from the scene and the print from the appellant.

[26]Miss McGowan adhered to her view that the two prints showed a match which justified her conclusion that the print at the scene had been made by the appellant. She pointed out that the shape and size of the ears that made the prints were so closely matched that any small difference could be explained by a variation in pressure. The apparent mismatches pointed out by Dr Ingleby were, she said, again entirely explicable by differences in pressure, and differences in the way in which the two transparencies were overlaid. As far as minutiae were concerned, she pointed out that the notch and the nodule were in themselves unusual features and were identically placed on the helix, the difference in measurement being one which depended upon precisely where on the notch and the nodule the measuring point was placed. Even if there was, as Dr Ingleby had concluded, a difference in the distance between the two, that difference was only between 2.2 millimetres and 2.5 millimetres, in other words again entirely explicable by a variation, for example in pressure.

[27]It is clear, particularly from the evidence of Dr Ingleby, that ear-print comparison is capable of providing information which could identify the person who has left an ear-print on a surface. That is certainly the case where minutiae can be identified and matched. Where the only information comes from the gross features, we do not understand him to say that no match can ever be made, but there is likely to be less confidence in such a match because of the flexibility of the ear and the uncertainty of the pressure which will have been applied at the relevant time. Miss McGowan still remains of the view that gross features are capable of providing a reliable match.

[28]On the basis of the evidence that we have heard, we are of the view that the latter can only be the case where the gross features truly provide a precise match. We have no doubt that evidence of those experienced in comparing ear-prints is capable of being relevant and admissible. The question in each case will be whether it is probative. In the present case, having heard both Dr Ingleby and Miss McGowan, and in particular having seen the various prints from which comparisons have been made, we are struck by the gross similarity of the shape and size of the ear-prints used for the comparison, and by the close similarity of the notch and the nodule on each. This, in our view, establishes that the ear-print at the scene is consistent with having been left by the appellant. But having examined the comparisons of the gross features, it is also apparent to us that they do not provide a precise match. The differences may well be explicable by differences in pressure, or movement, but the extent of the mismatch is such as to lead us to the conclusion that it could not be relied on by itself as justifying a verdict of guilty.

The judge directed the jury in relation to count 1 in the following terms:

“Now, members of the jury, although it is a matter for you, I suggest that you approach Count 1 in this way. First of all consider the evidence of the ear-print. Are you sure that the ear-print was Mr Kempsters? If you are not sure then you must acquit Mr Kempster on Count 1”

[29]In those circumstances, the jury’s verdict in relation to count 1 cannot be considered safe and the appeal must be allowed to the extent of quashing his conviction in respect of that count.

[30]We then turn to the application for leave to appeal in relation to counts 2, 3 and 4. It will be remembered that the Commission would not have referred the matter to this court if it had not been for the effect, as the Commission saw it, of the decision of the House of Lords in Coutts. The basis upon which the appellant puts his case in respect of these counts is that having been certain in relation to count 1, that must have affected the jury’s verdicts in relation to counts 2, 3 and 4. Attractively presented though the appellant’s case was, we are quite satisfied that the Commission came to the right conclusion. Essentially the basis upon which they did so was that the judge, in his summing-up, not only gave to the jury the standard warnings in relation to separate considerations of the four counts in the indictment, but having given the direction which we have already quoted in relation to count 1, he went on to deal with count 2, 3 and 4 in a way which in our judgment clearly separated the jury’s consideration of that count from their consideration of counts 2, 3 and 4. As to these, he said this:

“We are going to turn now to deal with counts 2, 3 and 4. The prosecution invite you to work backwards here dealing with count 4 first. For reasons that I will explain, that is the course that I invite you to adopt. To what extent are you entitled to rely on evidence that relates to count 4 of the indictment when considering the defendant’s alleged involvement in the other incidents represented by count 2 and 3. Members of the jury, you may do so if and only if you are sure that the same burglar was involved in each of these three incidents. If you are not sure, then as I have already directed you, you must consider the evidence strictly on a count by count basis. You must consider the evidence on each count quite separately. Now, members of the jury this is very important because counts 2 and 3 will depend on the view you take of count four. If the prosecution have satisfied you so that you are sure of Mr Kempster’s guilt on count 4, then you should go on to consider counts 2 and 3. But if the prosecution have failed to satisfy you of Mr Kempster’s guilt on count 4, then not only would you return a verdict of not guilty on count 4 but you would also have to acquit Mr Kempster on counts 2 and 3 as well.”

[31]It seems to us that in this passage, the judge made it abundantly clear that the verdict on count 1 was not a matter which could be used by the jury as material upon which they could reach a verdict of guilty in respect of counts 2, 3 and 4. The explanation that the appellant gave in relation to his behaviour with the credit card was, in any event, far-fetched. And his case cannot have been helped by the evidence of Robert Smith, whose inability to remember anything of any significance in relation to the burglaries which he purported to have carried out was damning. For these reasons, we refuse leave to appeal on this ground.

[32]Having quashed the conviction in respect of count 1, we have considered the extent to which that requires us to review the sentence of 10 years imprisonment that was imposed by the judge. We acknowledge, as did the Commission, the fact that the sentence was a severe one. But against the background of the appellant’s previous convictions for preying on old people, the three offences reflected in counts 2, 3 and 4 were offences which required a severe sentence. They justify, in themselves, the sentence that the judge imposed.

[33]Accordingly, as we indicated at the hearing, we quash the conviction on count 1, but do not interfere either with the convictions on counts 2, 3 or 4, or the sentence.