Weston, R v [2010] EWCA Crim 1576

Case No 2009/06307/D5

[2010] EWCA Crim 1576

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM OXFORD CROWN COURT

MR JUSTICE JOWITT

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

Date 08/07/2010

Before

LORD JUSTICE THOMAS

MRS JUSTICE DOBBS

MRS JUSTICE SHARP

Between

ReginaApplicant

Mark WestonRespondent

Miss A Levitt QC and Mr A Blake for Applicant

Miss S O’Neill QC and Mr D Miller for Respondent

Hearing Hearing dates : 29 & 30 June 2010

Judgment

Lord Justice Thomas :

[1]On the afternoon of Saturday, 12 August 1995, Mrs Vikki Thompson was attacked whilst walking her dog near the Cotswold village of Ascott-under-Wychwood in the valley of Evenlode, a village of about 500 people where she lived with her husband and two young children. She was attacked on Shipton Lane just a short distance from her home. She suffered severe head injuries and was dragged across a field and left by the side of the embankment of the Oxford to Worcester railway line that runs near the village. There was no evidence of any sexual assault. She died in hospital six days later.

[2]Mark Anthony Weston (the respondent), also an inhabitant of the village, was arrested on 13 September 1995. Items were seized. After further interviews, he was re-arrested on 1 February 1996 and charged with murder. He was tried before Jowitt J at Oxford Crown Court in November and December 1996 for the murder of the deceased; he was acquitted.

[3]On the tenth anniversary of the deceased’s death the case was re-opened and re-investigated. At the end of 2009 an application was made to the court under s.76 of Part 10 of the Criminal Justice Act 2003 for an order under s.77 quashing the acquittal and ordering that the respondent be re-tried for the murder. The basis of the application was that a re-examination in 2008 of boots admitted to be those of the respondent had revealed a spot of blood where the match probability upon DNA analysis was 1 billion to 1 that the blood was that of the deceased. It was therefore accepted on behalf of the respondent for the purposes of the application that the blood was that of the deceased. It was further accepted for the purposes of the application that the blood had been deposited when wet.

[4]Under the legal regime set out in Part 10 of the Criminal Justice Act, the court must consider whether the evidence to which we have referred, namely that in relation to the deceased’s blood being deposited on the respondent’s boots when wet, is new and compelling and, if so, whether it is in all the circumstances in the interests of justice for the court to make the order sought against the respondent. If the court is satisfied on both matters, it must make an order for a re-trial. The issues that therefore arose were: i) Was the evidence new? ii) Was the evidence compelling? iii) Was a re-trial in the interests of justice?

[5]We heard, in circumstances we explain at paragraphs 21-23 below, oral evidence from Mr Roger Mann and Ms Catherine Miller, two officers of the Forensic Science Service who had examined the boot in 1995/6, and Ms Rosalyn Hammond, a scientific advisor to the Forensics company that had conducted the re-examination. We also had extensive written evidence and other material. We are deeply indebted to Miss Levitt QC (who appeared for the applicant, the Director of Public Prosecutions) and Miss O’Neill QC (who appeared for the respondent) for the exemplary way in which they clearly identified the issues, distilled the material that went to those issues (so that it could be accommodated within one small ring binder) and set out their submissions. The application was, in short, made and responded to in a way that was a model of its kind.

[6]Before turning to the issues it is necessary to set out more about the original investigation, the original trial and the re-investigation.

The original investigation

[7]The deceased had gone walking at about 4 p.m. with a dog. When the dog returned at about 4.30 p.m. without her, her husband and children went to look for her. They then enlisted the help of friends. The deceased was found at 7 p.m. An extensive investigation then took place. The respondent was seen by officers on 22 August, 25 August and 30 August before his initial arrest on 13 September 1995. On that arrest a number of items of clothing were seized, including the boots referred to as MM/2 (the boots). The boots were sent to the Forensic Science Service (FSS) at Aldermaston on 26 September 1995, where they were examined by Mr Mann, a reporting officer/lead scientist who had been with the FSS for about 25 years at that time.

[8]He conducted an examination of the boots on 1 October 1995 in the examination room at the laboratory (room 90), making notes in manuscript on a document that was available to the court. He conducted a visual examination of the exterior of the boot on the bench with light supplied by fluorescent tubes above the bench and an angle-poise lamp fitted with an ordinary domestic light bulb on the bench to increase the light. The examination was conducted with both the naked eye and a microscope. He also carried out the Kastle-Meyer (KM) test - a test carried out by rubbing filter paper to which chemicals had been applied over the surface of the boot. If the paper changed colour it would indicate the possible presence of blood. The test was negative.

[9]On 1 February 1996, the respondent was charged with the murder of the deceased. In the light of further discussions with the police, a decision was made to re-examine the boots and permission was obtained by Mr Mann to dismantle the boots by cutting the stitching. This work was carried out by his assistant scientific officer, Ms Miller, on 5 February 1996. She recorded her findings on the same note on which Mr Mann had recorded his findings. She cut the stitching which held the tongue and sides of the boot together, cut the upper part of the boot near the welt and cut and folded back the leather over part of the steel toe cap. She tested the area now exposed using the KM test but the result was negative. The case therefore proceeded to trial without any forensic evidence of blood on the boots or on any other items of the respondent’s clothing which had also been examined.

The trial

[10]The evidence relied upon by the Crown at the two week trial before Jowitt J at Oxford can be grouped under four headings. Under the first were the witnesses who gave evidence of sightings of the respondent during the afternoon of the murder. Bernadette Pratley, Susan Jocelyn and Lisa Jocelyn saw the respondent cycling towards Shipton Lane at about 3.45 p.m. Susan and Lisa Jocelyn confirmed they saw him returning some 15 minutes later. Timothy Ryan stated that he saw the back of a person who he knew to be the respondent walking through the village towards Shipton Lane between 3.30 and 3.45 p.m., followed shortly afterwards by the deceased. His account was substantially undermined at trial. Julie MacVicker saw a young man running alongside the A361 (about 1.5 km from the scene of the murder). She was 99% certain that was the respondent. She stated that he appeared to be in a hurry and was breathless. She indicated she had known him for a number of years, as he was a customer of her shop and post office.

[11]Under the second heading of the evidence relied on by the Crown were the differing accounts given by the respondent of his movements. He had told the police on 22 August that he had been fishing between 8 and 10 on the morning of the murder and been shopping between 1 and 1.30 p.m.; he had thereafter been at home until 8 p.m. when he had gone fishing again until about 9.30 p.m. On 25 August he gave a different account of his movements in the afternoon, stating he had been at home all day after 10 a.m. and had gone to bed at about 9 p.m. that night; he had spent some of the afternoon in the garden talking to his neighbour, Mr Bull. On 30 August he gave a witness statement in which he indicated that in the afternoon he had remained at home until 5 p.m. when he went to neighbours, Mr and Mrs Monaghan to repay a small debt. They were not in and he had returned home five minutes later. His interviews after his arrest confirmed the account he had given on 30 August. The Crown called Mr and Mrs Monaghan who, although they confirmed the respondent owed them the small debt, said they were home from 3.30 p.m. onwards on the day in question. The Crown also called Mr and Mrs Westnutt to support the account of the Monaghans.

[12]The evidence under the third heading was scientific evidence relating to a footprint. Footprints were found in a ploughed field adjoining the scene of the murder to which a police tracker dog had led the investigating officers; a cast was made of one of the footprints which showed that the indentions could have been made by a shoe of any size from 8 to 13. The Crown called Dr Peter Bull of Oxford University who gave evidence in relation to the cast and to samples of soil, including samples from the boots. In the light of the course of the evidence at trial, his evidence was significantly undermined; it is therefore not necessary to set out that evidence, as it did not add materially to the case of the Crown.

[13]The fourth part of the evidence related to debris from a bonfire in the respondent’s back garden examined some four weeks after the murder; material found in the debris indicated the possibility that remnants came from a sweatshirt or jacket. There was also a poor quality recording obtained from a covert device at the respondent’s home; in it the respondent and his mother could be heard discussing the alibi she had given him for being at their home at the material time.

[14]It is, however, important to note one piece of evidence which was excluded by the ruling of Jowitt J. About 200 metres from the scene of the attack officers found a plastic bag containing items of women’s underwear. Tests on these revealed the respondent’s semen. After initial denials, he admitted in interview to masturbating at this point the day before the attack on the deceased. It was the Crown’s contention that the respondent was probably masturbating into the bag on the day of the murder and that the deceased could have seen him and perhaps remonstrated with him. This may have resulted in the attack. This evidence was excluded by Jowitt J on the basis that its prejudicial effect exceeded its probative value. Unfortunately the detailed reasoning of the judge is not available as none of the transcripts from the trial remain, but he probably took the view that, as the Crown’s case rested entirely on circumstantial evidence that was not strong, the evidence in relation to the bag and the respondent’s masturbation would be disproportionately prejudicial.

[15]Throughout the interviews and the course of the trial the respondent denied murdering the deceased. Although he knew her, he had rarely seen her and did not see her on the day in question. He had served an alibi notice maintaining that from lunchtime onwards he was at home save from a visit to the Monaghans; his mother, father and two neighbours, Eamonn and Lucy Bull, were called to support his account.

[16]The respondent was acquitted after a retirement by the jury of 45 minutes.

The further investigation

[17]We were told by Miss Levitt QC for the Crown that the further investigation initiated in August 2005 was a re-investigation of the entire case and not directed at the respondent. At some stage it was decided to review the available scientific evidence. Some of the items that had been taken from the respondent had been returned to him, but the boots had not been. The evidence before us was that a number of other forensic examinations took place in a staged process throughout 2006 and 2007. The evidence before us was that with historic re-investigations the forensic work requested was carried out under “a standard submission” and not the “premium rate submission” that is assigned to murders investigated in the ordinary course. The reason for this was to have work carried out quickly at “premium rate” costs would cost substantially more and would have an impact on the amount of historic re-investigations that could take place. Each submission therefore took about three months to be reported on.

[18]In January 2008 the boots were sent to LGC Forensics with other items. Some initial work was done by Pauline Stevens and her assistant. They found visible blood stains on the base of the tongue of the upper right boot in the area of stitching where the base of the tongue joins the uppers of the boot (areas 2, 3 and 4). That blood was recovered and submitted for DNA analysis. They also found a stain on the sole of the right boot (area 1); it gave a positive KM reaction but it was not tested further as it did not look like blood.

[19]The analysis of the blood at areas 2, 3 and 4 was carried out by Caroline Hughes of LGC Forensics in September 2008. She carried out further examinations with an assistant for the presence of blood and tried to determine the source of the blood, conducting as appropriate DNA profiling. Her opinion as a result of the work was as follows: i) As to the area located by Pauline Stevens (areas 2, 3 and 4) on the right boot, that blood had been deposited when wet. She was unable to determine whether it was deposited as a result of the boot coming into contact with a surface wet with blood or whether blood had travelled through the air and landed on the boot to cause the blood staining (spattering). ii) As a result of STR profiling of the blood from areas 2, 3 and 4, a full STR profile that matched the profile of the deceased was obtained; the match probability was 1 billion to 1. iii) Two very small blood stains (identified as area 7) were found on the right boot at the edge of the undersurface of the flap on which the lace eyelets were present. It was her opinion that these were deposited on the boot while the blood was wet. A partial STR profile was obtained showing DNA from at least two individuals. Although this could be explained by a mixture of DNA from the deceased and the respondent, there were components that could not have come from either of those individuals. iv) Very small bloodstains were found near the heel of the right boot on the inner aspect (area 5). It was not possible to obtain a profile. v) Three further possible bloodstains were found on the front toe area of the right boot (area 8). Two of these areas appeared to be very near that area where Ms Miller had cut the boot. No DNA profile could be obtained. vi) Light blood staining was found on a fabric loop at the back of the left boot (area 6); it would have been deposited when wet. STR profiling was undertaken which produced a partial STR profile. All of the confirmed components matched corresponding components in the STR profile of the deceased and all but one of the unconfirmed DNA components matched the corresponding components of the STR profile of the respondent. However there was an additional unconfirmed component that could not have come from either the deceased or the respondent. Her opinion was that the match probability was approximately 1 in 55 million. vii) As the profile results from area 6 (left boot) and area 7 (right boot) were mixed, it was not possible to determine which DNA components came from blood. viii) As to the way in which the blood found at the base of the tongue on the right boot (areas 2, 3 and 4) may have been deposited, she did not consider that the bloodstain was of the type she would expect to find deposited by coming into contact with the ground or adjacent surfaces such as vegetation when walking, particularly as the weather following the assault was dry and hot. She concluded:

“[I]n my opinion it is highly improbable that the blood staining at the base of the tongue of the right boot was deposited as a result of [the respondent] walking through the scene after the assault on [the deceased]. If the bloodstains from the flap on the lace of the right boot and the fabric loop on the back of the left boot originated from [the deceased] I cannot envisage a scenario where these and the blood staining at the base of the tongue on the left boot would have been deposited by [the respondent] walking through the scene.”

The application to the Court

[20]In July 2009 a request was made to the Director of Public Prosecutions for consent to authorise a re-investigation into the murder of the deceased; on 24 August 2009 the Director consented. A further scientific report was obtained from Ms Rosalyn Hammond on 19 October 2009, the very experienced forensic scientist employed by LGC Forensics to whom we have referred and who gave evidence before us in a very impressive manner. On 21 October 2009 the respondent was re-arrested and interviewed. The Director subsequently gave his consent to the application made to this court. Legal assistance, including the provision of expert forensic advice, was made available to the respondent.

[21]An application was made to the court before the hearing by Miss O’Neill QC on behalf of the respondent that Mr Mann and Ms Miller attend for cross-examination. It was opposed by the applicant. The court ruled it would consider the application at the conclusion of the opening and directed that both Mr Mann and Ms Miller be present.

[22]After hearing argument, we decided we would hear the evidence of Mr Mann and Ms Miller for reasons we would give in our judgment. At the conclusion of their evidence, Miss Levitt QC applied to call Ms Hammond. That application was not opposed.

[23]We decided to hear the evidence of Mr Mann and Ms Miller, as it seemed to us that the circumstances in which the boots had originally been examined were central to our decision on the second and third issues. One of the submissions relied on by the respondent was, that if blood had been present in 1995, the examination would not have been conducted with due diligence. As that was an issue that would not be of central importance at the trial, it was, in our view essential to allow the respondent a full opportunity of testing that evidence in this application. Furthermore Miss O’Neill QC made clear the ambit of her cross-examination which satisfied us that her proposed questions were directed at clarifying the evidence before us and not at any further enquiry.

[24]Against that background we turn to the three issues before us. We should make clear that in considering the issues, we have applied the statutory language at Part 10 and have not needed to refer to any of the earlier decisions. We have followed this approach as the statutory language is clear and it does not require judicial exegesis; each case is fact specific. In so doing, we have been guided by the general observations of Lord Judge CJ in R v Erskine [2009] Crim 1425 at paragraphs 63-77 and 90-91.

Issue 1: Is the evidence new?

[25]In view of the scientific evidence before us, we have directed our consideration of whether there was new evidence to the blood found at the base of the tongue (areas 2, 3 and 4), given the acceptance it was the deceased’s blood and that it was deposited when wet. We have not taken into account against the respondent the other areas of blood.

[26]In s.78(2) Parliament has defined what is meant by “new” in the following terms:

“Evidence is new if it was not adduced in the proceedings in which the person was acquitted ….”

[27]It is common ground that the evidence was not adduced in the original trial, as the bloodstains had not been found. It was submitted on behalf of the respondent that giving the word “new” a commonsense interpretation, describing the evidence as “new” would be inaccurate; the evidence had always been there, but it had not been found. The premise of this submission, namely that the evidence had always been there but not found, is a matter to which we shall return, but as Parliament has defined what is new we must simply apply that definition. On that definition the evidence is plainly new as it was not adduced at the trial in 1996. The answer on this first issue is therefore clear. The evidence was new.

Issue 2: Is the evidence compelling?

[28]Again Parliament has defined what is meant by compelling. In s.78(3):

“Evidence is compelling if – (a) it is reliable, (b) it is substantial, and (c) in the context of the outstanding issues, it appears highly probative of the case against the acquitted person.” (a) it is reliable, (b) it is substantial, and (c) in the context of the outstanding issues, it appears highly probative of the case against the acquitted person.”

[29]We proceed to consider this question on the basis: i) That it is accepted before us that the blood found at the base of the tongue (areas 2, 3 and 4) was that of the deceased and ii) It was deposited when wet. The question therefore arises as to how the blood came to be deposited on the boots. One obvious possibility is that the blood was deposited in the course of the attack on the deceased. The other possibilities are that(a) it was deposited on the boots after the attack on the deceased but before they were seized by the police on 13 September 1996 or

(b) deposited by contamination after the seizure or

(c) by some unexplained cause. If the last three alternatives can be eliminated as highly unlikely, then it is necessary to examine the strength of the first possibility. (a). Was the blood deposited after the attack but before seizure of the boots by the police?`

[30]The evidence before us is clear that shortly after the attack on the deceased, her husband started to look for her; she was found at about 7 p.m. that evening. The area surrounding the scene was cordoned off. There is evidence to suggest that some of the stones near the scene of the initial attack or from the railway embankment were thrown into the River Evenlode. There is also evidence that the weather was hot and dry.

[31]Against that evidential background, it was submitted to us that there was a possibility that blood could have been deposited on the boot when wet when the respondent was fishing, either through contact with blood from a stone that had remained wet or blood that had floated from the stone into the river and onto his boot. There was also a possibility that there may have been wet blood somewhere else. However no expert evidence on behalf of the respondent was adduced before us on those possibilities. The evidence before us was that which we have set out in paragraph 19.viii) above and the further evidence of Ms Hughes that similar considerations applied to transfer when fishing. In addition, there was no evidence that the blood found in areas, 2 3 and 4 was dilute when deposited. On the basis of that evidence we can discount that possibility as highly improbable. (b). Was the blood transferred through contamination after seizure of the boots?

[32]As we have set out above, after seizure on 13 September 1995 the boots were submitted to the FSS on 26 September. They were examined in room 90 on 1 October 1995. We are satisfied on the evidence before us, particularly from the oral evidence of Mr Mann, that there was no possibility of contamination prior to or at the examination. The only item with blood on it which was damp had been examined in room 90 on 17 September 1995; it was placed in a cabinet for drying. Extensive precautions were taken to ensure that the room was clean and each item was examined on a fresh sheet of brown paper placed on a cleaned bench. It appears that there is no realistic possibility of contamination after the examination by Mr Mann on 1 October and the examination by Catherine Miller on 5 February 1996.

[33]We have examined with particular care the evidence in relation to the possibility of wet blood being deposited by contamination after the examination by Catherine Miller, in the light of the fact that neither she nor Roger Mann discovered any blood. In a helpful flow chart provided by the Crown and which was not challenged before us, it appears that the boots were collected on 21 February 1996 and taken to the Scenes of Crime Officer at St Aldate’s Police Station, Oxford and held by him until they were delivered on 14 April 1996 to Dr Bull for examination in connection with the soil deposits. Dr Bull had the boots from 14 April until 23 April 1996. On the evidence before us he had no item with blood on it from the deceased. The boots were taken to the committal hearing at Witney Magistrates’ Court and then to the incident room exhibits store at Banbury Police Station on 25 April 1996. They appear to have remained there until 9 July 1996 when they were taken back into the custody of the Scenes of Crime Officer at St Aldate’s Police Station. They remained there until they were examined by a defence soil expert on 30 October 1996. On the evidence before us, there is nothing that could give rise to the possibility of contamination at that stage.

[34]The boots were taken to the trial and apparently examined by the jury. It does not appear to us that there was any real possibility of contamination at that stage. After the acquittal of the respondent, the boots were stored at Banbury Police Station between December 1996 and May 2005 when they were transferred to a new record and evidence centre. They were then transferred from that evidence centre to the review team’s store in June 2005 and held there until transfer to the laboratory at which they were examined by Pauline Stevens in January 2008. Again there does not seem to us to be any realistic possibility of contamination at that stage. We are satisfied that no contamination occurred at the LGC Forensic laboratories.

(c) Other possible explanations

[35]We have considered whether there are any other possible explanations on contamination, but none were identified to us.

[36]We have, nonetheless, given this aspect some considerable thought, in view of the submission on behalf of the respondent that there must be some other explanation in the light of the fact that Mr Mann and Ms Miller had examined the boots thoroughly on 1 October 1995 and 5 February 1996 and found no blood. However that contention is premised on the basis that Mr Mann and Ms Miller would have found any blood if it had been there. We must therefore examine that premise.

[37]Although there have been very substantial advances in DNA science in the period from 1995 to the present, particularly in the improvement and validation of more advanced profiling, the basic techniques for detecting blood on surfaces such as boots have not materially changed. The search is still made using the naked eye and/or a microscope and the surface is rubbed with a filter as part of the KM test or similar tests. However, there are five matters which it is necessary for us to consider: i) It was the evidence of Ms Rosalyn Hammond, which we accept, that the examination of dark coloured boots for blood is in itself a difficult task. Furthermore, not only is the surface uneven, but it is difficult to examine them under a microscope. Because of these difficulties, it is possible for a competent examiner not to find visible traces of blood. ii) As we have set out at paragraph 8 above, the examination in 1995/1996 was conducted with extra lighting which was supplied by an angle-poise lamp with an ordinary domestic light bulb and not with halogen lighting used in 2008. It is very surprising to us that the FSS did not equip their laboratory at Aldermaston with the more powerful halogen lighting, particularly in view of the evidence of Ms Rosalyn Hammond that she used such lighting in 1995/1996. The lower level of intensity lighting provided by the ordinary domestic light bulb in the angle-poise lamp might be one explanation for failure to detect the blood that was found in 2008. iii) The microscope used to examine the boot in 1995 was much less flexible than the microscopes used in 2008. It was much more difficult to manoeuvre a surface such as that of a boot under the microscope in use in 1995/6 than the microscope used in 2008. Again that might help explain why any blood there was not seen. iv) It is apparent from what we have set out in paragraph 19 above that the further analysis and examination carried out under the supervision of Caroline Hughes detected areas of blood (areas 5, 6, 7 and 8) that had not been detected by the separate examinations carried out by Pauline Stevens and her assistant earlier in 2008. This was a very clear indication of the difficulty of detecting blood on surfaces such as boots and clear evidence that it was possible for competent scientists to miss blood. v) The areas examined by Mr Mann in 1995 were not checked by Ms Miller in 1996 and the examination by Ms Miller in 1996 was not checked on its completion by Mr Mann. At that time it was not sufficiently appreciated that a second check was necessary. That is now firmly appreciated as a result of the report by Alan Rawley QC and Professor Caddy entitled “Damilola Taylor: an independent review of forensic examination of evidence by the Forensic Science Service” (published by the Home Office, April 2007). This report pointed to the inherent risk of human fallibility in the detection of bloodstains on surfaces. As a result, two examinations are now required, though there must remain the risk that even two will not detect all the blood. Again it seems that another explanation as to why the blood might have been present but not detected was the failure to conduct two examinations of the same areas in 1995/6.

[38]In assessing the impact of those five factors in providing an explanation as to why blood might not have been detected in 1995/6, we have to add into the balance the fact that the area at the base of the tongue was 10 mm by 10 mm and that it was not just in one area that possible blood was missed, but at least four. Moreover Mr Mann was a very experienced and competent forensic scientist and Ms Miller also had extensive experience. However, having regard in particular to the evidence of Ms Rosalyn Hammond we consider that the most likely explanation is that the blood was not detected in 1995/6. It is, in this connection, significant that the examinations in 2008 lasted a total of two days whereas the examinations carried out by Mr Mann and Ms Miller were in the order of an hour or two and the examination in 2008 double checked. Examination for blood is the subject of human fallibility.

[39]In the light of that conclusion, it seems to us that the possibility of there being other unidentified explanations for the presence of blood on the boots is highly unlikely.

(d) Deposit of the blood by contact with the deceased

[40]On that basis, therefore, we conclude that the overwhelming probability is that the blood of the deceased found on the right boot at areas 2, 3 and 4 must have been deposited either through direct contact with the deceased or through spattering. That conclusion must inexorably lead to the evidence being highly probative of the case against the respondent. It is very difficult to see what other explanation there can be for the blood on the boot other than that the blood was deposited during the attack by the respondent on the deceased. We also consider, in the light of what we have set out, that that evidence is reliable and is substantial.

[41]It is, however, also necessary for us to consider that evidence in the context of the other evidence in the case, particularly the evidence of Bernadette Pratley, Susan and Lisa Jocelyn and Julia MacVicker (referred to at paragraph 10 above) and the differing accounts given by the respondent of his movements on the day of the murder (as referred to in paragraph 11 above). That evidence is consistent with the DNA evidence, but it is the DNA evidence which is highly probative and in effect decisive in the case. We have also considered the evidence set out at paragraph 14, of the clothing found and of the respondent’s masturbation which was excluded by Jowitt J. Whether that should be admitted in any re-trial will be a matter for the trial judge, but it is again consistent with the new evidence. Issue 3: Is it in the interests of justice to make an order for a re-trial?

[42]The court is directed by s.79 of Part 10 of the Act in addition to being satisfied that there is new and compelling evidence, it must also be satisfied that it is in the interests of justice for the court to make an order quashing the acquittal and ordering a re-trial. If we are so satisfied on both then by the terms of s.77(1) we must make that order. The statute directs the court to determine whether it is in the interests of justice for an order quashing the acquittal and ordering a re-trial to be made in the following terms under s.79(2):

“That question is to be determined having regard in particular to – (a) whether existing circumstances make a fair trial unlikely; (b) for the purposes of that question and otherwise, the length of time since the qualifying offence was allegedly committed; (c) whether it is likely that the new evidence would have been adduced in the earlier proceedings against the acquitted person but for a failure by an officer or by a prosecutor to act with due diligence or expedition; (d) whether, since those proceedings or, if later, since the commencement of this Part, any officer or prosecutor has failed to act with due diligence or expedition.”

[43]It was submitted on behalf of the respondent that there were six matters we should consider in determining whether it was in the interests of justice to quash the acquittal and order a re-trial. We will consider each in turn.

(a) The memory of witnesses

[44]As we have stated, the village of Ascott-under-Wychwood has a population of about 500. From the date of the murder until the present date the respondent has lived in this small village. There can be no doubt that at the time of the murder and in the period up to his acquittal the circumstances in which the deceased was murdered would have been a matter frequently discussed in the village. Although stringent orders had been made to protect the confidentiality of this application, it is accepted by all that it is realistic for us to assume that since the time the decision to re-investigate was made and more importantly since this application was lodged, the subject matter of the murder of the deceased would have been a subject of discussion in the village.

[45]It was therefore submitted that it would be unrealistic to approach the question of a re-trial without paying substantial regard to the inevitable risk of cross-contamination of witnesses’ recollection, quite apart from the obvious dimming of memories over a 15 year period.

[46]We will express our view on this matter at paragraph 52 below after we have set out the next three points relied on.

(b) The destruction of the transcripts of the trial

[47]No transcripts of the evidence in the trial or of the judge’s summing-up are available. It appears that in the light of the acquittal of the respondent, the tapes on which the sole record was contained were destroyed, as at the time it could not have been anticipated that there would be any need to review them again. The only account of the proceedings is that contained in a manuscript note taken by a law clerk of the Crown Prosecution Service. Parts of it have been transcribed and the whole of it will be.

[48]It seemed clear to us that in the light of the fact that at trial the evidence of Timothy Ryan was substantially undermined (as we have set out at paragraph 10) as was the evidence of Dr Bull (as we have set out at paragraph 12), there could be some prejudice to the respondent if those witnesses were to be called. The evidence they had given at trial could not be put to them. In those circumstances Miss Levitt QC undertook to the court that those witnesses would not be called at any re-trial.

(c) Witnesses who have died

[49]Since the trial Mr Monaghan, whom the Crown called to disprove part of the alibi of the respondent (as we have set out at paragraph 11), has died. His evidence was supported by Mr and Mrs Westnutt but they have also died. It appeared that the deaths of Mr Monaghan and of Mr and Mrs Westnutt might not be of any real significance, in the light of the fact that the substantial evidence disproving the alibi had been given by Mrs Monaghan. However it transpired during the course of the hearing before us that Mrs Monaghan may have an illness which makes it difficult for her to give evidence or to recall the events of 1995 with any reliable recollection. Further enquiries into her health need to be carried out, but we will assume that she is not capable of giving reliable evidence. If she is not capable of giving reliable evidence, it seems to us clear that this can only advantage the respondent, because in those circumstances she could not be called as a witness; it would neither be fair nor in the interests of justice to allow the statements of the deceased witnesses to be read. If she is capable of giving reliable evidence, then she can give evidence and any prejudice by the death of the other witnesses can be eliminated by this court making it clear that their statements should not be read.

[50]Two other witnesses who gave evidence at the trial have also died. They were Detective Inspector Watts who was the deputy senior investigating officer and Police Constable Salmon who was the beat officer in the village. Having reviewed their statements and the notes of the evidence taken by the clerk of the CPS, their evidence is of little materiality.

(d) The destruction of exhibits

[51]We have been provided with a full list of the exhibits at the trial. It is clear that some have been destroyed. The clothing that the respondent was wearing at the time had been returned to him and he had disposed of it. The only items that had not been returned to him were his boots on which the blood was subsequently discovered. As there is a description of the clothes which might be of some relevance to the issue of identification and as it is accepted there was no blood on any of these items, we cannot think that the destruction of these items can prejudice the trial. As to the other items that are missing, we cannot think these are of any significant materiality.

[52]All of these four matters go to the question as to whether in the circumstances as they now stand a fair trial can be held. We are, of course, conscious of the dimming of recollections and the inevitable risk of contamination between the witnesses in a small village. Although statements exist, it is very unfortunate that the transcripts of the trial are no longer available. Those matters must all go into one side of the balance, although we cannot, for the reasons we have given, add to that any prejudice from the death of the witnesses to which we have referred nor the destruction or loss of the exhibits. Against that, on the other side of the balance, we must put what we have concluded is the compelling evidence in relation to the blood found on the right boot. We must also take into account the way in which the trial process can address evidence that is affected by the dimming of recollections and the enhanced risk of contamination between the witnesses and the necessary directions that can be given to a jury. We have come, therefore, to the clear conclusion that a fair trial is possible.

(e) A failure of due diligence in the examination of the boots

[53]We turn next to consider whether there was due diligence in the examination of the boots carried out in 1995/96. It was submitted on behalf of the respondent, that if, contrary to his primary submission, there had been blood on the right boot in 1995/96, then there had been a lack of due diligence in detecting it.

[54]As we have set out at paragraph 42 above, one of the factors a court must consider is whether due diligence was shown by officers in the original investigation.

(c) in the following terms:

“In subsection (2) references to an officer or prosecutor include references to a person charged with corresponding duties under the law in force elsewhere than in England and Wales.”

Furthermore by s.95(1) the term officer is defined to mean “an officer of a police force or a customs and excise officer”.

[55]At the material time scientists who conducted forensic examinations had moved from police forces into the Forensic Science Service. Therefore clearly Mr Mann and Ms Miller were not officers within the meaning of the sub-section. However, it seems to us that as Parliament has left to the court the determination of what is in the interests of justice, we should have regard to the question as to whether they had acted with due diligence. Although Mr Mann and Ms Miller were not employed under a contract of service with the police, the FSS provided under a contract of services an essential part of the original investigation.

[56]As we have observed at paragraph 38, the powerful point was made on behalf of the respondent that whereas missing one area of blood might be explicable, missing at least four areas of blood was not consistent with a careful and diligent inspection.

[57]Without the evidence of the change in practice and without the evidence of Ms Rosalyn Hammond and Ms Caroline Hughes, this would have been a very powerful submission. Ms Hammond and Ms Hughes agreed that blood stains can be missed on items such as boots, even when they have been examined by careful and diligent forensic scientists. However it seems to us in the light of that evidence, although we remained concerned about the circumstances of the original examination of the boots, it would be wrong for us to conclude that either Mr Mann or Ms Miller had acted without due diligence. It is clear that some criticism should attach to the FSS in not providing proper and up-to-date lighting in 1995/96, but again it does not seem to us that on its own we could say that that amounted to a failure of due diligence on the part of the FSS itself.

(f) Delay in the investigation

[58]We have set out at paragraph 17 above the reasons why it took a period of two and a half years for the boots to be submitted for examination and then be examined. The reasoning of the police force is misplaced. If an old case is re-investigated, given the inevitable prejudice suffered by a potential new suspect or an acquitted defendant by the lapse of time, there is as much urgency in progressing an old case as there is with a live case. The longer the date in time from the original events the greater the urgency. We therefore are driven to conclude that the investigation was not conducted with due diligence at its initial stages. However, we cannot conclude that any significant prejudice has been caused to the respondent by that delay, given the nature of the new evidence. We trust, however, that the Director will make clear to police forces that where cases are re-investigated after a substantial lapse of time, they should be investigated with no smaller degree of diligence or timeliness than live cases. There may be cases (though this is not one) where a failure to progress with due diligence could be material.

(g) The fallibility of scientific investigation

[59]At the time of the investigation in 1995/6, as we have set out at paragraph 37v) above, there was insufficient understanding of the fallibility of testing for blood and the necessity of a second and thorough check. Were it not for that lack of understanding, the question would have arisen (though we need not decide it) as to whether it is in the interests of justice, where an investigation is concluded and a matter brought to trial on the basis of scientific tests known to be fallible, that the powers under Part 10 of the 2003 Act can be used to re-open an investigation. We will merely observe that it is plainly in the interests of justice that there is an end to litigation. Where a test is known to be fallible, every effort must be made to ensure accuracy; reliance should not be placed on the possibility of trying again under Part 10.

(h) Conclusion

[60]We have stood back and asked ourselves the question, taking into account all of the factors to which we have referred, whether it is in the interests of justice there be a re-trial. We are satisfied for reasons we have set out that there is compelling evidence. Given that fact and the considerations to which we have referred, we are satisfied that it is in the interests of justice that the acquittal be quashed and there be a re-trial.

Overall conclusion

[61]Having reached, therefore, the conclusion that there is new and compelling evidence and that the interests of justice are served by quashing the acquittal and ordering a re-trial, we make, as directed by s.77(1), the order applied for. We will direct that the trial is heard as soon as is practicable consistent with the interests of justice; we would therefore expect counsel to put forward a suggested timetable and any submissions as to venue that might be appropriate.