Smith, R. v (Rev 1) [2011] EWCA Crim 1296

[2011] EWCA Crim 1296Case No 2009/03393/C1IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM
HIS HONOUR JUDGE KRAMER QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/05/2011
Before
LORD JUSTICE THOMASMR JUSTICE SWEENEYMR JUSTICE SPENCER
Between
ReginaRespondentPeter Kenneth SmithAppellant
Mr Paul Mann QC and Mr Adrian Reynolds for AppellantMr Peter Joyce QC and Mr Steven Coupland for RespondentHearing Hearing dates: 19 and 20 October and 1 December 2010
Judgment

Introduction

[1]On 27 February 2007 Hilda Owen, a 71 year old widow, was murdered in her own home in Skegby. She had been attacked and severe injuries had been inflicted. The pattern of injury indicated that she had remained alive for somewhere between 15 and 24 hours after the attack. She was left to die. The appellant, her next door neighbour, reported to the police the finding of her body on 1 March 2007.[2]He was at first treated as a witness, but on 9 March 2007 he was arrested but released on bail. Between March 2007 and December 2007, 17 other people were arrested and interviewed but none was charged. On 3 December 2007 the appellant was re-arrested and interviewed. He was subsequently charged.[3]There was circumstantial evidence against the appellant (to which we shall refer at paragraphs 69 to 87 below), including the making of a “will” in his favour, his involvement in her affairs, his financial difficulties and his opportunity to kill her. Apart from the pathology evidence (which is not in dispute) there were three areas of forensic evidence. The first related to the scenes of crime, the second to footwear and the third to fingerprint evidence.[4]The appellant was tried between 18 November 2008 and 12 December 2008 before HH Judge Kramer QC at the Crown Court at Nottingham. We shall set out in a little more detail the course the trial took but the trial resulted in the conviction of the appellant for murder. He was sentenced to life imprisonment with a minimum term of 30 years.[5]He appeals by leave of the single judge on one ground – the difficulties faced by the defence at trial when a decision was made not to call its fingerprint expert and the fresh fingerprint evidence now available.[6]It was accepted by the Crown that there was fresh evidence in relation to the fingerprints; we will consider that evidence first and then whether, in the light of the test in Pendleton [2002] 1 WLR 72, it affects the safety of the conviction. We will therefore first set out the evidence in relation to fingerprints before turning to consider the safety of the conviction.

I THE FINGERPRINT EVIDENCE

[7]Before explaining how the fingerprint evidence was obtained, the decision made at the trial not to call the expert, the evidence given at trial and the evidence before us in relation to the fingerprint, it is necessary to set out very briefly the nature of fingerprint evidence and the training of fingerprint examiners in England and Wales. (1).

(a) The evolution of the evidence

[8]The history of fingerprint standards and evidence was set out by Rose LJ in R v Buckley (Robert John) (1999) 163 JP 561. He pointed tothe accepted position that fingerprints varied from person to person and that such patterns were unique and unchanging throughout life. There were originally no standards, but it was accepted that once 12 similar ridge characteristics were identified, the match was proved beyond all doubt. In 1924, the standard was altered by the Metropolitan Police to require 16 similar characteristics, but not all police forces accepted that. In 1953, a national standard of 16 similar characteristics was adopted; the objective was to set a standard that was so high that no one would seek to challenge the evidence. There was discussion in the ensuing years as to the number that were required; in 1983 there was a conference at which it was agreed that a fingerprint identification was certain with less than 16 points of similarity; there would, however, be rare occasions on which there would be a print of crucial importance that fell below that standard, where only experts of long experience and high standing should give evidence. As a result of that conference, the Home Office and the Association of Chief Police Officers (ACPO) commissioned a study by Dr Ian Evett and Dr Williams into standards. They concluded that there was no scientific, logical or statistical basis for the retention of a numerical standard. As a result, further work was undertaken by ACPO and the Fingerprint Bureau within each police force. It recommended a move to a non numerical standard.[9]That non numerical standard was adopted in 2001 by ACPO. This requires the print to be identified by a fingerprint officer (who may or may not be a fingerprint expert) and then to be checked by two others who are qualified fingerprint experts. The standard to be applied is to examine all the available detail in relation to the print such as ridge flow and ridge characteristics to see if the print can be clearly identified with a person’s fingerprint.[10]The current procedures are set out in a manual issued in 2006 by ACPO and the National Fingerprint Board which had been established in 2002. This was issued to the Fingerprint Bureau of each police force which within each police area is responsible for the examination of fingerprints. It is for each police force to establish its own quality management system. Work is currently being undertaken to develop quality standards by the Fingerprint Quality Standards Specialist Group established by the Forensic Science Regulator.

(b) The training of fingerprint examiners

[11]We were provided with a statement from Mr Michael Thompson, Head of National Fingerprint Training for the National Policing Improvement Agency which very clearly and helpfully set out the requirements for training and recognition by police forces as a fingerprint expert. i) Prior to 1992, fingerprint experts were trained in-house by police forces; there was no standard training. The Metropolitan Police provided an advanced course which was undertaken after a minimum of 5 years in-house training. On completion of the advanced course the expert would be placed on a Register maintained by the Home Office. In 1990, a national training centre was established and in 1992 national fingerprint training was made available. From that time until 2007, the training programme provided for a Foundation Course, an Intermediate Course and an Advanced Course. On completion of the courses and with a letter of confirmation from a Chief Constable, the expert was entered onto the Home Office Register of Police and Government Department Fingerprint Experts. ii) Since 2007, ACPO has approved a series of courses and assessments which form the National Fingerprint Learning Programme run by the National Police Improvement Agency; on satisfactory completion and a letter of confirmation from a Chief Constable, the expert is entered onto the Home Office register. These courses take several years and very high standards are expected. iii) Police Forces take the view that no one can be a fingerprint expert in the United Kingdom unless they have qualified through one of the above methods. Their view is supported by the position that there is no other readily available way of qualifying in the United Kingdom. Although a person who does not work for police will be accepted onto a Foundation Course, no person can continue to the higher levels unless he is an employee of a police force; experience has to be gained between the courses at a police fingerprint bureau. The reason for the stance taken is that the NPIA and ACPO take the view that unless a person works within a police fingerprint bureau, that person is unlikely to gain sufficient experience in the analysis of fingerprints; a person outside a bureau would not have sufficient opportunities to gain enough experience. If a person qualifies overseas, ACPO has agreed that that person will not be accepted for employment in a UK fingerprint bureau unless the person sits the Advanced Examination.[12]The training methods we have described are rigorous; examinations have to be taken and portfolios of work are assessed. (2).

(a) The initial investigation by Mr Gore in March 2007

[13]On 2 March 2007, about 200 fingerprints were recovered from the deceased’s home by Mr Alan Gore, a fingerprint officer employed by the Nottinghamshire Police, who had more than 21 years experience of fingerprints. He sent them for initial screening. He had also had a finger and palm print of the appellant dated 9 March 2007; these were taken because of the number of fingerprints at the premises. On 20 March 2007, Mr Gore examined a door handle from the deceased’s house. It was a lever type handle; on the rear surface of the handle facing the door there was an area of a red blood-like substance. He could see that skin ridges appeared. The area was then examined by Mr Gore between 29 March 2007 and 3 April 2007. His assistant had taken numerous photographs, the first photographs being taken on 29 March 2007 under fluorescent light, others being taken after each of three acid yellow washes, a further set being taken after acid violet washes and a final set of photographs being taken after acid black washes.[14]Mr Gore examined the handle visually and the photographs in some detail. He also examined the area using a Nikon stereo microscope at 8x magnification. Despite the photographs and the examination under the microscope he concluded that there was insufficient detail to be able to make a meaningful comparison. His conclusion was recorded in a single note on a one page document headed Fingerprint Bureau Internal Actions where he noted that there was insufficient detail. A report was also sent to the investigating team but it added little.

(b) The re-examination in February 2008

[15]Between about 11 and 18 February 2008 (and thus after the appellant had been charged) Mr Gore re-examined the photographs; he did so because he anticipated being asked about the print he had not been able to identify. By about this time the Nottinghamshire Police had acquired a new scanning and printing machine which enabled him to run the print off and compare print to print more easily. Although he was working on other cases, he spent much of the week looking at the prints. By the end of that period, he concluded that the ridge flow and 12 ridge characteristics could be identified with the fingerprint from the appellant’s left forefinger.[16]The sole record of the week’s work is contained in the Fingerprint Bureau Internal Action Sheet which noted at 6:
“ident JM74 Peter Knight Smith cro 18602481C (suspect DCI O’Shea)”
. JM74 was the print on the handle.[17]In accordance with ACPO guidelines, that examination was verified by two others, Mr Robert McShane, Manager of the Nottinghamshire Police’s Fingerprint Bureau and Mrs Patricia Wardle, a fingerprint officer employed by the same bureau on 15 and 18 February 2008. The note made by Mr McShane and Mrs Wardle on the Action Sheet was the same:
“Ident at 6 verified”
. There were no notes or other record of their work.[18]In his evidence to us Mr Gore explained why he had re-examined the print on the door against the print of the appellant. He told us that quite often during a trial he would be asked at short notice for assistance with the prints found at the scene and, to save having to do the work in a hurry at the trial, he decided to do the work ahead of time.[19]On 19 February 2008 he prepared a three page statement. That statement did not contain any diagram setting out the 12 characteristics he had identified. It merely stated that he had found sufficient ridge detail in agreement and none in disagreement to conclude that the print was that of the appellant. He concluded:
“In forming my opinion I have considered the amount of detail, its relative position and sequence and general quality. I have no doubt that the area of friction ridge detail indicated in the photograph was made by [the appellant].”
[20]He had no working notes. His evidence was that he did a continuous analysis and his working notes were in effect the photographs. In a statement made prior to the trial, Mr Gore explained the absence of a chart:
“Such charts have never been produced for analysis or verification purposes. This is bad practice and would have a detrimental effect on the independence of the analysis, comparison and evaluation of the mark.”
Mr Gore explained to us that if a chart had been produced by him, then the two other experts who verified his conclusion would not be able to reach their own independent conclusion.[21]He made two further statements in March and May 2008 to which it is not necessary to refer and a statement on 24 June 2008 where he said in respect of the work in the Spring of 2007:
“I came to the conclusion that there was not enough detail for me to proceed.”
That statement explained in a little more detail the acquisition of the new scanning and printing machine.

(c) The experts retained on behalf of the appellant

[22]After the appellant had been charged on 5 December 2007, his solicitor, Mr Davies of Bilton Hammond, decided that it was necessary to deal with the various pieces of forensic evidence, including footwear and fingerprint evidence. On 27 February 2008 he wrote to Keith Borer Consultants asking them whether they could appoint experts in various forensic disciplines, including fingerprint analysis. At that stage it was, of course, not known that there was the fingerprint evidence in relation to the door but there was fingerprint evidence in relation to another issue.[23]The solicitor was informed by Keith Borer Consultants that they could assist and suggested Ms Catherine Tweedy be appointed as the fingerprint expert for the appellant. She was provided with documentation and visited the Nottinghamshire Fingerprint Bureau.[24]Ms Tweedy, according to the qualifications and experience set out in the report she provided, said she had been employed by Keith Borer as a forensic scientist since 1995 and had specialised in the study of fingerprints. She had a BSc in Biological Sciences and various other qualifications. She stated she was instructed in approximately 55-65 criminal cases each year. She added:
“I have received fingerprint training at the Police National Training Centre. I have received training in Modern Fingerprint Technology and have successfully completed the Advanced Latent Fingerprint Course with Metro Dade Police, Florida, USA. I am an active member of the International Association of Identification. I have extensively studied the persistence, detection and recovery of fingerprints from exhibits and scenes of crime, chemical enhancement techniques, visualisation of latent marks and the identification of individuals through transfer evidence.”
A report was produced by her dated 19 September 2008 which was disclosed to the Crown. In it she complained that Mr Gore did not provide full and complete disclosure of any part of the fingerprint evidence and concluded that the print on the door did not possess 12 ridge characteristics for matching purposes. She ended up by saying that if Mr Gore was to provide a chart or marked up enlargement then she would examine it and produce similar images detailing her findings. Another employee of Keith Borer, Mr Simon Bunter, who had worked for the North Yorkshire Police’s Fingerprint Bureau for 7½ years, had confirmed Ms Tweedy’s view. However, as he was the confirming expert, he had not been to see the materials held by the Nottinghamshire Police Fingerprint Bureau. His work had not been validated by another expert, as his role was to confirm Ms Tweedy’s opinion.[25]In statements made on 8, 10 and 15 October 2008 Mr Gore responded. In a statement dated 4 November 2008, following a request from the defence, he produced a comparison chart; he did so by marking the 12 characteristics on a photograph of the print on the door handle and on a photograph of the print taken from the appellant. It was the first time he had done this in his 17 yeas of being a fingerprint expert giving evidence in court. (3). The events at the trial[26]The trial began on Monday, 17 November 2008. Mr Gore began his evidence on Wednesday 26 November 2008. As we explain at paragraph 35, his cross-examination had to be adjourned so that he could provide clearer photographs to the jury. He was recalled on 1 December 2008 and concluded his evidence. Mr McShane and Mrs Wardle gave evidence supporting his conclusion.[27]It was intended that Ms Tweedy give evidence immediately thereafter; illness prevented her. Mr Bunter gave evidence to the effect that the print was of such poor quality that it could not be safely attributed to the appellant. Ms Tweedy was asked to attend to give evidence immediately after the appellant had given his evidence.[28]An issue then arose as to whether she was qualified. On 1 December 2008 the CPS learnt that the qualifications of Ms Tweedy had been questioned in another CPS area. In September 2008, the CPS had been informed by Mr McShane that Ms Tweedy had applied to be registered as an Accredited Fingerprint Officer with the Council for the Registration of Forensic Practitioners, a body which existed at that time, but which has subsequently closed. After service of her report, the police were asked to investigate her qualifications; it proved difficult to obtain details. On 1 December 2008 after receipt of the information from the other CPS area, the CPS asked Keith Borer Consultants over the phone about her qualifications; the CPS were told by Keith Borer Consultants that she was very experienced and subsequently the CPS were sent copies of her certificates.[29]Shortly before Ms Tweedy was to go into the witness box on 8 December 2008, counsel for the Crown told counsel for the appellant that Ms Tweedy was not qualified as she claimed; other CPS areas had been critical of her; if she was called, she would be cross-examined about her shortcomings and about fundamental errors in her report.[30]The appellant’s legal team asked for time to investigate; the team were told by Keith Borer Consultants that there were no grounds for doubting her ability; the challenge was only because her training was American and not UK based; Keith Borer Consultants confirmed that her level of `competence had been challenged in other cases.[31]The decision was made not to call Ms Tweedy and to rely on Mr Bunter’s evidence. It was recognised that he had significantly less experience than Mr Gore, Mr McShane and Mrs Wardle and his opinion was not supported by anyone else. The jury had been told of the intention to call her; when the decision was made not to call her, the jury were simply told that she was no longer being called. No reason was given.[32]In his summing up to the jury the judge emphasised that the jury should assess the evidence and not try to be amateur experts. He directed them that if they found that the evidence of Mr Gore, supported by Mr McShane and Mrs Wardle, accurate and reliable, then they were entitled to come to the conclusion that the fingerprint was that of the appellant; if in view of the evidence of Mr Bunter they concluded that the evidence called by the Crown was not or might not be reliable, then they should discard it and ignore it (e). The further expert opinion obtained on behalf of the appellant[33]After the appellant’s conviction, further expert evidence on fingerprints was obtained: i) Mr Peter Swann was instructed on 2 February 2009 to consider the fingerprint evidence. He had qualified as a fingerprint officer in the traditional way we describe at paragraph 11.i) and had been in charge of the Bureau at Wakefield; he had been an adviser to the Home Office. He had retired in 1987, before the change to the identification parameters made in 2001 as we described at paragraph 9. He had over 50 years experience, but had received no on-going training, save for attending lectures and conferences on fingerprinting. He visited the Nottinghamshire Bureau and provided a report dated 7 March 2009. ii) Mr Ford had worked as a fingerprint officer from 1965 in a large police fingerprint bureau; he retired early in 1998. He then practised as an independent fingerprint expert. He had had no further training other than checking prints at other bureaux. (4). The evidence given at the trial[34]Mr Gore’s evidence at the trial was that, although initially he thought the quality of the print was so poor that it was no use, he was able to see when he re-examined it in late April or early May 2007 that it was the print of the middle section of a left forefinger with blood on it. It was consistent with a left hand or forefinger with blood on it over the back of the door handle and opening the door in order to exit[35]When he re-examined it again in 2008, in the circumstances we have described at paragraph 15, he examined the ridge characteristics, ridge endings and bifurcations and details including the pores. He found 12 points where the characteristics were similar on the middle phalange of the left forefinger and no points of dissimilarity. He had no doubt about it. He did not identify these points to the jury in his examination in chief, taking the view that he would not expect them to appreciate what the similarities meant, given the poor quality of the print. It was only in his cross-examination that he was asked to identify the 12 similarities. As the photograph in the bundle prepared (to which we referred at paragraph 25) was not sufficiently clear, his evidence had to be adjourned at the outset of the cross-examination so that a better bundle could be produced. When the cross-examination resumed, he was taken through each point in the new bundle; that bundle numbered each of the points of comparison differently to the numbering sequence in the first bundle. His cross examination was detailed, putting to Mr Gore specific criticisms of the characteristics where he said there were similarities. Mr Gore explained that he considered that two of the points of similarity repeated themselves, as there had been a double touch – a topic` to which we return at paragraphs 47 and following.[36]Mr McShane and Mrs Wardle gave evidence that they had independently examined afresh the print and the appellant’s fingerprint form and were sure that the print had been made by the appellant.[37]Mr Bunter’s evidence was that he had never seen a fingerprint officer identify a print of such poor quality; he agreed with Mr Gore’s original view. He considered there were only two clear ridge characteristics in the area on which Mr Gore had relied. He was then taken in his examination in chief through the detail of each of the points of comparison relied on by Mr Gore. In his cross-examination the fact he had not made the time to visit the Nottinghamshire Police Fingerprint Bureau was emphasised, as was the fact that his opinion has not been confirmed by another expert. (5). The evidence given to this court[38]We heard evidence from Mr Gore and Miss Wardle, Mr Swann and Mr Ford; Mr Gore and Mr Swann gave evidence at the first and second hearings before us; Mrs Wardle and Mr Ford gave evidence only at the second hearing.[39]When Mr Swann and Mr Ford produced their reports, they produced their own markings on the photographs with their own numbering system, using for the most part the numbers 1-10. As Mr Gore had used two different sets of numbers at the trial and there were before us two additional sets of numbers, all using the same sequence of numbers; this did not make the hearing of the evidence as clear as it should have been.[40]At the conclusion of the evidence there were three areas of conflict in the evidence:(a) ridges and furrows - what lines were the ridges and what lines were the furrows on the print or prints left on the door handle;(b) double touch - whether there had been one touch leaving a print or two touches leaving two prints;(c) clarity of the left side: whether the area to the far left was sufficiently clear so that reliance could be placed on it.

(a) Ridges and furrows

[41]It became apparent during the course of the first hearing before us that there was a fundamental dispute between Mr Gore and Mr Swann as to what were shown on the photographs as ridges and furrows; Mr Swann’s evidence was that what Mr Gore said were ridges (red lines) were in fact furrows and what Mr Gore said were furrows (dark lines) were ridges. In the course of Mr Swann’s cross examination, Mr Swann made clear that the dark colour were the ridges and the red lines the furrows, as the dark colour had sweat pores on them. This difference had not emerged before.[42]We attempted to resolve this by asking the experts to examine the handle itself. However, after the conclusion of the first hearing, further work was done to try and resolve the issue that had arisen as to ridges and furrows. In the second hearing we were very grateful to have the relevant images on screens as well as in hard copy, as this made it much easier to follow the comparisons the experts sought to draw.[43]At the second hearing Mr Gore produced images of the appellant’s prints which had been taken by “Livescan” – a method of taking prints by scanning each person who is arrested; such prints were stored on the National Automated Finger Print Identification System (NAFIS). We were told that those who operate NAFIS do not permit digital images to be downloaded onto a disk and provided to the court to view on its screens; instead we were provided with a disk of photographs of the digital image which were shown to us on our screens and the photographs themselves.[44]Mr Gore’s evidence was that the new images of the appellant’s prints showed the incipient detail in the furrows; they were not pores on a ridge; he had also compared the Livescan images to the inked impressions where the ink would be on the ridges and they corresponded. Mr Swann agreed with the interpretation of these images of the appellant’s print.[45]However they remained in disagreement as to which were furrows and which were ridges on the image of the print on the door handle. i) Mr Gore’s evidence to us on the second hearing was that there were pore holes that could be seen on the ridge; at the first hearing before us, it was Mr Gore’s evidence that the pores on the ridges could not be seen because blood was where the pore holes were. He told us at the second hearing that had been a mistake and pore marks existed. ii) Mrs Wardle agreed with Mr Gore, but was not pressed to explain why. iii) Mr Ford agreed with Mr Swann; in his opinion, the dark black lines were the ridges as he could see the pores in them; he had thought that Mr Gore agreed with him.[46]It was suggested to Mr Gore that the difference did not matter, but Mr Gore regarded it as crucial, as each was identifying something different. (ii). The double touch[47]Mr Gore’s evidence to us was that in his examination of the print on the door handle in February 2008 he had identified the fact that the person who left the print had touched the handle twice – a double touch. There was no reference to the double touch in any of Mr Gore’s statements; he told us he did not tell the police. He reported it as one print, as he considered that the second touch was not sufficiently clear to provide any identification. There was nothing on the photograph on which the 12 points of similarity were originally marked to identify for the jury that there had been a double touch. He told us he did not do so because neither Ms Tweedy nor Mr Bunter had suggested that the ridges shown were continuous.[48]In the second bundle he produced for the jury, he drew on the principal photograph a line and two duplicate numbers. He provided no explanation for this in writing; when his cross-examination resumed, he then explained for the first time his double touch case. He explained that there were two points with the same number (his duplicate 2 and 3) and that there were two duplicates; the line was the division between the two touches. The evidence he gave was not challenged in the way it was challenged before us.[49]Although the question of a double touch had no significance in the trial, it became central to Mr Gore’s rebuttal of Mr Swann’s evidence in the hearing before us. Mrs Wardle told us that she had not considered the double touch much at the time she made her identification, but gave evidence supporting Mr Gore’s view.[50]Mr Swann’s evidence was that: i) There were four points of similarity (A, B, C, D) which were ridge characteristics; Mr Gore was in agreement with these as ridge characteristics. Mr Ford was adamant in saying that the characteristics were not the same. ii) He identified six points of dissimilarity (1, 2, 3, 4, 5 ) which were on the print on the handle and were not on the appellant’s print and a further point (6) which was on the appellant’s print but not on the door handle;[51]Mr Gore’s evidence to us was: i) That 2 and 5 (using Swann’s numbers) were ridge characteristics duplicates of Swann C and D which had resulted from a double touch; if there had been a single touch, Mr Gore accepted there would be inconsistencies which would point to the print not being that of the appellant. However he explained that his duplicate 2 to which we have referred at paragraph 48 was not the same as Swann 2 but Swann B. ii) Mr Gore accepted that Swann 1 was on a ridge line, but was not a ridge ending; it was a double touch. If there had not been a double touch, it would be an inconsistency. He also accepted that the characteristic on the appellant’s print identified as Swann 6 was not present on the print on the door handle. iii) He also identified for us on the second occasion he gave evidence another duplicate which he had not marked on the second bundle he had produced for the jury. iv) Mr Gore told us that his point 4 in his second jury bundle was the same as Swann D and therefore part of the second touch; he had not marked 4 (as shown in the second jury bundle) in the first jury bundle; he had marked a 5 in his first jury bundle to the right of the position where 4 in his second jury bundle was, but that could not have been a duplicate. He said he had, in marking 5 in the first jury bundle, made a mistake which he could not explain. v) It was clear that the line drawn on the second jury bundle to show the division in the blood print between the two touches spoken of by Mr Gore was different to the line that had been drawn in the separate bundle produced for this court. Mr Gore had not drawn any such line when he made his identification; nor had the other two examiners drawn any line.[52]Neither Mr Gore, nor Mr McShane nor Mrs Wardle had said anything at the trial about any inconsistencies being explained by a double touch; Mr Gore told us that was because he was of the view that there was a double touch and therefore no inconsistency.[53]Mr Gore advanced five reasons why he contended that there was a double touch; i) There was a replication of characteristics between what he said was the print on the left and the print on the right; he was supported in this by Ms Wardle. Mr Ford did not agree the points were the same ii) On comparison between the thickness of the ridges on the right and left of the image of the door handle, the thicker ridges suggested a heavier deposit on one touch and the thinner, lighter deposit on the other touch. Mr Swann and Mr Ford disagreed with this. iii) The size of the print was much larger than the appellant’s finger. There was no dispute that it was larger. However it was submitted on behalf of the appellant that this could not amount to an independent reason, as it assumed that the print was that of the appellant and not another person with a wider finger which might have left a single print. iv) There was a break in the flow of the ridges. Mr Gore accepted that there were a number of ridges that appeared to flow through either side of the line, but said that this was quite common as, if a finger was put side by side twice, this was likely to appear. The evidence of Mr Swann and Mr Ford was, however, that the ridges flowed through; they could see no natural break. Mr Ford was clear in his evidence that if there had been two touches he would have expected to see the ridges jumping and not a straight line. v) There were indications of two prints of the distal phalange, indicating two touches. Mr Gore’s evidence to us at the first hearing was that there was a print of the distal phalange on the second touch. At the second hearing he explained that he could see a faint print as a result of the first touch. Mr Swann had in his evidence made clear there was only one print of the distal phalange. In addition Mr Gore accepted that there was no smudging at what he suggested was the border between the two but smudging would occur purely by chance.

(c) Clarity of the left side of the print

[54]Mr Swann identified 10 points on the left side of the print which he said could not be seen on the appellant’s print.[55]Mr Gore and Mrs Wardle did not consider that the left side of the print or prints was sufficiently clear to be able to make a proper comparison of ridge characteristics; there was too much disturbance. Mr Gore thought that they were spurious and the area should not be relied on. Mrs Wardle explained that she had made her identification by reference to characteristics she could see in the area that was clearest; as there were enough similar characteristics in that area she could ignore the area to the left.[56]It is clear from the summary of the evidence we heard that there was a clear conflict between the experts. We will consider the conclusion to be drawn from this in the context of our consideration of the safety of the conviction. Before doing so, it is necessary to consider the position of Ms Tweedy. (6). Ms Tweedy’s qualification[57]It was submitted to us on behalf of the appellant that the decision not to call Ms Tweedy was justified because she was significantly under qualified and the Crown would have been justified in challenging her professional ability; this would have adversely affected the weight attached to her evidence. There was a risk that this would have undermined the opinion of Mr Bunter. The position taken was supported by Mr Thompson’s evidence that the course taken by Ms Tweedy at Metro Dade Police Florida was not recognised in the United Kingdom as a fingerprint qualification; this was the course that had been undertaken, as we have set out at paragraph 24 by Ms Tweedy.[58]We directed that Keith Borer Consultants be informed of the submissions that had been made about Ms Tweedy’s lack of qualification to give expert evidence. We received extensive submissions from Keith Borer Consultants to the effect that Ms Tweedy was qualified; we were informed that Ms Tweedy’s registration with the Council for the Registration of Forensic Practitioners was in progress when the Register and the Council had closed. Details of the training courses she had attended and her research on fingerprints were set out. She had prepared 700 reports on fingerprint evidence.[59]Keith Borer Consultants also set out the quality control procedures they had in place. They explained that their approach to fingerprint evidence was different to the approach of the police Fingerprint Bureaux and followed the practice applied in other areas of forensic science.[60]We fully understand why the decision was taken not to call Ms Tweedy and the severe disadvantage that caused to the defence of the appellant. In the light of the acceptance by the Crown that this court should in all the circumstances receive the fresh evidence, it is not necessary for us to express a view on whether Ms Tweedy was qualified to give expert evidence. However, the issue relating to her qualification to give expert evidence highlights one of the concerns we have in relation to the way fingerprint evidence was obtained and considered at the appellant’s trial (7). General issues relating to fingerprint evidence[61]In the light of the issue in relation to Ms Tweedy’s qualifications and the way in which the evidence was adduced at trial, we consider it important that we should identify some of the features which have become apparent to us. None have been material to the decision we have in fact reached in this case as to the safety of the conviction, but as they are important to the way in which fingerprint evidence is adduced where the print is not clear; we set them out : i) Most forensic science services have for some time been provided by organisations wholly independent of police forces. There are also a number of private providers of forensic science services. In contradistinction, fingerprint experts are organised in Fingerprint Bureaux which fall within the organisational structure of each police force. This may be a distinction that is justified; it may be possible for independence to be assured by strict standards of control on quality and by accountability. ii) There is no opportunity for a person outside a police Fingerprint Bureau to become fully qualified as a fingerprint expert by training in England and Wales or for having that person’s competence recognised by the police forces. iii) Police forces do not recognise the qualifications or competence of those who have obtained these overseas. It is for a judge to decide whether a person is a competent expert, not the police. Because of the course the trial took, the judge did not have to rule on whether Ms Tweedy, who obtained qualifications overseas, was a competent expert. iv) It is essential for the proper administration of justice that there are independent persons expert in fingerprint examination; almost all who do this are retired from police Fingerprint Bureaux. The position is in marked contrast to other forensic science disciplines. There may be good reason for this distinction; for example the fingerprint bureau of other forces may be able to provide expert evidence for the defence. v) No competent forensic scientist in other areas of forensic science these days would conduct an examination without keeping detailed notes of his examination and the reasons for his conclusions. That universal practice of other forensic scientists was not followed by the Nottinghamshire Fingerprint Bureau. There may be reasons for this, but they were not explained to us. vi) As neither the original examiner nor those who confirmed his examination made any notes of their reasons and did not identify the points of comparison contemporaneously on a chart, it was not possible to see whether their reasoning was the same. We were told that this was not done because those who made the subsequent identification should make that identification without knowing the views of those who had previously examined the print. Although we accept that identification by two other persons who do not know the conclusions of the original examiner or the other examiner form an important safeguard, we do not understand that reasoning. There would be nothing to prevent the earlier examiners sealing their conclusions until the completion of all the examinations. We do not know whether there is any other justification for examiners not making detailed contemporaneous notes that can be the subject of transparent examination in court where the identification of the mark is in issue. vii) The quality of the reports provided by the Nottinghamshire Fingerprint Bureau for the trial reflected standards that existed in other areas of forensic science some years ago and not the vastly improved standards expected in contemporary forensic science. viii) The presentation of the evidence to the jury made no attempt to use modern methods of presentation. The presentation to this court was similar; a large amount of time was wasted because of this. It was incomprehensible to us why digital images were not provided to the jury; the refusal of NAFIS (to which we have referred in paragraph 43) to permit a digital image to be supplied to the court was a further example of the lack of a contemporary approach to the presentation of evidence. The presentation to the jury must be done in such a way that enables the jury to determine the disputed issues. This is one of the very few cases where fingerprint evidence has been challenged at a trial since 1999 and, as far as we are aware, the first since then to come before this court on an appeal where this court has had to hear fresh evidence. It is not unsurprising that the points we have raised identify practices which differ so markedly in England and Wales from modern forensic science practice in other areas of forensic science.[62]There is plainly a need for the points that have arisen in this case to be the subject of wider examination. We have been told that an enquiry by the Rt Hon Sir Anthony Campbell into the case of HM Advocate v McKie known as the Scottish Fingerprint Enquiry has heard extensive evidence in relation to fingerprint evidence in Scotland. It is not for us to comment more than we have done at paragraph 61 in relation to the practices that have come to our attention in this appeal. In our view, however, there is a real need for the ACPO, the Forensic Science Regulator and the recently established Fingerprint Quality Standards Specialist Groupto examine as expeditiously as possible the issues we have identified, to assess the position and to ensure that there are common quality standards enforced through a robust and accountable system. II THE SAFETY OF THE CONVICTION (1).

(a) The Pendleton test

[63]Mr Joyce QC on behalf of the Crown, in accordance with the highest standards of counsel advancing a prosecution, accepted that in the circumstances the conditions of s.23 of the Criminal Appeal Act 1968 which entitled us to hear the fresh evidence were met.[64]As there could be no dispute that the evidence given by Mr Swann and Mr Ford was credible, the issue for us was whether that evidence was such as might reasonably have affected the decision of the jury to convict; if we concluded that it was, then the conviction is unsafe: see R v Pendleton [2002] 1 WLR 72 at paragraph 19.

(b) The evidence given by the Crown

[65]We accept that Mr Gore, Mr McShane and Mrs Wardle had significant experience in the examination of fingerprints and were well trained in the methods of analysis introduced in 2001. They utilised modern equipment.[66]Substantial criticism of Mr Gore was advanced on behalf of the appellant. In the light of the observations we have made as to the practice of the Nottinghamshire Fingerprint Bureau, it would not be fair to criticise Mr Gore. However, the way in which the evidence was prepared by the Bureau for the trial and the materials presented to the jury are factors we must take into account in determining whether the conviction was safe.[67]We have set out above a summary of the evidence we heard on the main issues between the respective experts. The importance of the evidence was that it was undoubtedly a fingerprint made in the deceased’s wet blood, and therefore likely to be the fingerprint of the killer. In our judgment it is plain that on that evidence there was a real and substantial dispute as to whether the print on the door handle was that of the appellant. If the jury had heard that evidence, then they would have had to determine whether, in the light of the evidence given by Mr Gore, Ms Wardle, Mr Swann and Mr Ford, the print on the door handle was that of the appellant. They could well have accepted the analysis of Mr Swann and Mr Ford that it was not the print of the appellant. It would have been entirely reasonable for them to do so.[68]However, the Crown contended that even if that were the case, the conviction was nonetheless safe because of the other evidence before the jury. (2).

(a) Time of death

[69]The deceased was last seen alive at 11.30 am on 27 February 2007. It was clear that she was attacked sometime later that day – probably between 11 p.m and 8 a.m. the following morning, but it could have been about 6 hours before or later.

(b) Entry into the house

[70]The deceased’s attacker entered through her back door. It was unlocked at the time. She was in effect housebound and reluctant to let anyone into her house she did not know; she normally only left the door unlocked if she was expecting someone she knew.[71]The appellant’s back door faced that of the deceased across a small courtyard with a clear view from the appellant’s kitchen to the back door of the deceased’s back door.

(c) The attack

[72]She had been attacked from behind whilst seated on a chair in the rear living room with her back towards the back door. She received 48 injuries or groups of injuries; 29 of these were to her face and head, some causing fractures of the skull. The injuries were consistent with the use of a claw hammer and a screwdriver; a screwdriver with her blood on it was found in her bedroom.[73]The time of death was uncertain – it was probable she had remained alive for 15-24 hours after the attack we have described. She was either strangled then (and had survived) or strangled shortly before her death.[74]The house had been searched, but nothing had been taken; cash and jewellery to the value of £17,085 were left untouched.

(d) Footmarks

[75]Two sets of footmarks were recovered from the house. One in the deceased’s blood showed movement around the body, in the front living room and in the front bedroom. The other was made in dust in the rear living room. None was found outside, indicating that footwear was removed inside the house. The size of the footwear that had made the mark was between 8 and 10. (3).

(a) The appellant’s finances

[76]The Crown’s case was that the appellant was in severe financial difficulties; he had total debts of £104,558.56 at about the time of the deceased’s death. As his relationship with his partner had ended, the mortgage had been transferred into his name and he had to make a payment of £6,340 to his former partner. He had told others of his dire financial position; a fellow employee had given evidence that the appellant had on one occasion broken down and told her that he was worried he might be homeless and did not know where he was going to live.[77]Financial difficulties were denied by the appellant on the basis that his current account was in credit, he had not defaulted, his credit rating was satisfactory and his income exceeded his expenditure.

(b) His assistance to the deceased and her “will”

[78]The appellant had been very attentive to the deceased; he made no secret of his hope that she would leave her house to him. The appellant had also applied for a Community Care Grant and Attendance Allowance for her; the Crown alleged there were dishonest statements in the applications and the appellant benefitted from them. He involved himself in her financial affairs. It was common ground that the deceased had expressed to others gratitude for what the appellant had done for her.[79]He made arrangements for her house to be transferred into her name; it was the Crown’s case that he had told his new partner that he had a plan that would solve his financial problems – getting the deceased’s house.[80]On two occasions, the last of which was on 8 February 2007, the deceased was asked about making a will, but was adamant she did not wish to make one. On 19 February 2007, the appellant purchased a will kit from WH Smith. He drafted a will for the deceased under which he was the sole beneficiary. The will was backdated. It was signed by the deceased, but the signatories as witnesses had not witnessed her sign the will. They had done so on 25 February 2007. (c). The appellant’s explanations of his whereabouts on 27 February-1 March 2007[81]The appellant made regular visits to the deceased. However, he said he had not visited her between 6.45 p.m. on 27 February and 9.42 a.m. on 1 March 2007. An analysis of his computer, phone records and CCTV at work showed that he had had the opportunity. He said he had not noticed the full milk bottles left on 28 February or 1 March 2007.[82]In interviews on 1 March 2007 he said he had visited a friend on the night that the deceased was attacked. The friend confirmed that account. On 9 March he said that he had gone cruising for sex in nearby woodlands after leaving the friend; when re-interviewed on 3 December 2007, he confirmed the second account. Cell site analysis of texts at 10.05 p.m. and 10.07 p.m. showed that he was at other woodlands a number of miles from his home. He gave different explanations for his presence in that location.[83]On 1 March 2007 he drove to a household waste recycling site, arriving before it opened. He did not disclose this visit to the police until 8 March when it was too late to recover the items he claimed to have thrown away – furniture belonging to his ex-partner. He then drove to have his car cleaned – an external wash and an internal vacuum. He retuned home and about 50 minutes later telephoned the emergency services.

(d) Footmark evidence

[84]We have referred at paragraph 75 to footmark evidence recovered at the deceased’s house – one set in the deceased’s blood and the other in dust. The set in the deceased’s blood was consistent with footwear which it was claimed was in the appellant’s possession but which he had not been wearing when he entered the house on 1 March 2007. The sole pattern was consistent with shoes sold at the local ASDA and other outlets between May and August 2005. The appellant’s former partner gave evidence that the pattern looked similar to size nine shoes he had bought from ASDA which were left at the rear door of the property for their use; they had been at the house when he left, but they were not found at the house when the police searched the premises.[85]The footmarks in the dust matched a pair of slippers bought by the appellant from ASDA; although there was evidence that the appellant habitually wore these slippers, they were not found on the search.

(e) Other forensic evidence

[86]No blood marks were found in his car or at his home; the cleaning and vacuuming of the car would not have eradicated traces of blood. (4). Conclusion on the other evidence[87]Although there was strong circumstantial evidence against the appellant, there were weaknesses in it, including: i) The crime scene had been compromised by prints from other police officers and those from the emergency services who attended. ii) It was accepted that whoever had killed the deceased would have been covered in blood. It was therefore of some significance that no traces of blood were found at the appellant’s house or in his car. iii) The time that the prosecution put forward for the appellant to have killed the deceased and been able to clean himself up and be ready to visit his friend could be said to be unrealistically short. (5). Conclusion[88]It was submitted on behalf of the appellant that the fingerprint evidence was central to the case against him. The Crown disputed this on the basis: i) It was only a part of the evidence. As is apparent from the history of the matter as we have set it out, the decision was made to prosecute the appellant prior to the fingerprint being attributed to the appellant. ii) The jury would have been left with a clear conflict on the evidence between those called on behalf of the Crown and Mr Bunter called before us on behalf of the appellant. The jury would have been unable to resolve the conflict. They would therefore have had to assess the remainder of the evidence which showed that the appellant had committed the murder.[89]Although we consider that there was a strong case based on circumstantial evidence, if the jury had heard the evidence of Mr Swann and Mr Ford, we consider that it might reasonably have affected their decision to convict, as they would have been entitled to accept their analysis. In the light of all the other evidence, the jury might in that case have decided the Crown had not made them sure of the appellant’s guilt. Although we have reached that decision solely on the basis of the fresh evidence, we would, had we been in any doubt, also have had regard to the following: i) Through no fault of the appellant, his principal fingerprint expert had not been called; the expert called was open to the substantial criticism that his opinion had not been verified by another examiner. ii) The expert reports provided by the Nottinghamshire Fingerprint Bureau in advance of the trial did not properly identify the issues for determination. iii) The presentation of the expert evidence to the jury was not prepared by the Nottinghamshire Fingerprint Bureau or by the appellant’s other expert in a way in which the jury could have realistically attempted to determine the dispute between the experts.[90]We therefore quash the conviction.