MH, R v [2015] EWCA Crim 585

Case No 201405542B2

[2015] EWCA Crim 585

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT WINCHESTER

Sir David Clarke (sitting as a Judge of the High Court)

T20117034

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

Date 12/06/2015

Before

THE PRESIDENT OF THE QUEEN’S BENCH DIVISION

MR JUSTICE CRANSTON

MRS JUSTICE McGOWAN D.B.E.

Between

REGINAApplicant

M.H.Respondent

Michael Bowes Q.C.and Kerry Maylin for Crown

William Mousley Q.C.and Andrew Houston for Respondent

Hearing Hearing date : 13 May 2015

Judgment

Sir Brian Leveson P :

Introduction

[1]On 11 January 2008, the body of Georgina Edmonds, then 77 years of age, was found on the floor of her home Fig Tree Cottage, in Bishopstoke, Hampshire: it is beyond argument that she had been murdered. As a result, a lengthy and substantial investigation was undertaken the result of which was that, on 17 February 2011, MH was charged with murder. Between 14 November 2011 and 20 January 2012, he was tried in the Crown Court at Winchester before Sir David Clarke and a jury: he was acquitted.

[2]This is an application by the Crown Prosecution Service (CPS) to quash the acquittal of the respondent and for a re-trial to be ordered under s. 76(1) of the Criminal Justice Act 2003 (the 2003 Act) on the grounds that there is new and compelling evidence in the form of DNA detected on fibre tapings taken from the clothing of Georgina Edmonds which, upon analysis, connects the respondent with the crime.

[3]On 17 October 2014, the full court made an order ex parte under s. 82(1) of the 2003 Act restricting the publication of any matter relating to this application: this order continues until the proceedings are concluded. Thereafter, pursuant to section 87 of the 2003 Act, on 21 October 2014, MH was arrested and charged with murder. On the following day, he appeared before Winchester Crown Court and was remanded in custody but, on 30 October, was admitted to bail with conditions of residence, not to contact prosecution witnesses and to report to Eastleigh Police Station.

The Facts

[4]Fig Tree Cottage is a detached house set in the grounds of a larger house, Kingfisher Lodge, which was occupied by Mrs Edmonds’ son, Harry, and his family. On 11 January 2008, the Estates Manager, Ian Wrightson, called at the cottage before 8.00 am and spoke to Mrs Edmonds before taking her dogs for a walk. The gates to the property remained closed but unlocked throughout the day. Between 10.00-11.00 am, Mrs Edmonds’ hairdresser visited the cottage: she was the last person (save for her murderer) to see her alive.

[5]Mr Wrightson returned to the estate shortly before 5.00 pm; he went to the cottage, again in order to walk the dogs. Unusually, the kitchen door of the house was locked and the dogs were not in the main kitchen area. He walked round to the conservatory door where the dogs let themselves out of the dog flap. He assumed Mrs Edmonds must be asleep and he took the dogs for a walk. Thereafter, when Mr Edmonds returned home (having been away all day), he saw that the lights were off at Fig Tree Cottage; not having spoken to his mother that day, at 5.35 pm, he phoned her mobile. Concerned when she did not answer, he and Mr Wrightson entered the cottage where Mr Edmonds discovered Mrs Edmonds lying face down on the kitchen floor in a pool of blood which was on, under and around her body. He saw that her trousers had been pulled down slightly (although whether as a result of a deliberate act or because she had been dragged or had dragged herself across the floor has never been determined); there was a wound to the back of her head.

[6]At 6.20 pm, paramedics and, at about the same time, the police arrived. The paramedics noted seven or eight puncture wounds to the base of Mrs Edmonds’ neck towards her left shoulder. A marble rolling pin, which had broken into three parts and was covered in blood, was found on the kitchen worktop: given that there was evidence of blunt trauma to Mrs Edmonds’ head, it was the obvious candidate as a potential weapon. Meanwhile, the police, including the Crime Scene Manager, Det. Sgt. Chudley, took control of the scene. There were no signs of forced entry at the property and no fingerprints or palm prints of any value were recovered.

[7]That evening, the body was not disturbed but photographs and a video recording were taken. The scene was secured and guarded and arrangements made for a forensic team (which was led by Michael Appleby a forensic scientist employed by the Forensic Science Service) to attend the following morning. We shall return to that forensic analysis later in this judgment.

[8]The post-mortem concluded that death resulted from head injuries caused by a number of heavy blunt force impacts: the marble rolling pin was identified as a possible weapon. Only two of the incised wounds found on Mrs Edmonds’ neck, chest, abdomen, and upper back would have caused any significant injury. They were all caused by a knife and the pattern suggested that they had been inflicted with deliberation rather than with significant force.

[9]In addition, it was discovered that Mrs Edmonds’ mobile phone and handbag had been stolen (the latter containing her purse and credit card holder). Somebody attempted to use her credit card in a nearby cash machine outside Tesco Express at 138 Twyford Road, Eastleigh at 10.38 pm on the night of the murder although the transaction was rejected because an incorrect PIN was entered: the attempt to use the machine (by a person wearing a fluorescent jacket with the hood up) was captured on CCTV. The handbag and its contents have never been recovered, but the mobile phone was found discarded on a riverbank which led south from Fig Tree Cottage: it had been disconnected from the network at 3.13 pm that day.

[10]MH was first arrested in connection with the offence on 30 June 2010; over 16 months then elapsed before his trial. There was no issue that Mrs Edmonds had been murdered; the issue, therefore, was whether the jury was sure that the respondent was the killer. In an effort to prove its case, the prosecution relied on four strands of evidence. These were, first, DNA evidence from the rolling pin; second, mobile telephone cell site analysis; third, CCTV evidence of the cash machine at which an attempt had been made to use Mrs Edmonds’ credit card; and, fourth, what was contended to have been MH’s attempt to create a false alibi. To understand the nature of the Crown’s case, it is appropriate shortly to elaborate on each.

[11]The main plank of the prosecution case revolved around DNA analysis. Swabs were taken from the marble of the rolling pin and from the handle of the pin which still had the spindle attached. A mixed DNA profile was recovered. It was accepted that if the minor component of the mixed profile had only one contributor, that person could not be the MH. The forensic scientist Michael Appleby was of the view, however, that there was strong evidence that there was more than one contributor to the minor profile. Another forensic scientist, Sonia Marshall, said that the evidence gave moderate support for such a conclusion.

[12]Expert statistical evidence was given on behalf of the prosecution by Professor Balding and on behalf of the defence by Professor Lauritzen. The experts were agreed that it was not possible to give a match probability in the usual form because the analysis was of a mixed profile, of particular complexity with consequential difficulties of interpretation. The agreed findings were expressed in the following form. First, the results obtained from the calculations were 2,500 times more likely to occur if the contributors to the minor component of the sample were MH and another person unrelated to him than if the minor component came from one male who was unrelated to MH; and second, the results obtained from the calculations were 2,800 times more likely to occur if the contributors to the minor component were MH and one or two other persons unrelated to him than if the contributors to the minor component were an unknown male and one other individual, both unrelated to MH.

[13]The second limb of the Crown’s case was that MH’s mobile phone was shown to be using a cell site that covered Fig Tree Cottage at 2.18 pm on the day of the murder. A further cell site signal from the phone at 3.25 pm showed that his phone had moved south. It was contended that this was consistent with MH having followed the river beside which Mrs Edmonds’ discarded mobile phone was subsequently found, albeit on the opposite bank to that on which the path ran.

[14]The attempted withdrawal from the cash machine on the evening of the murder (representing the third limb of the evidence) was captured on CCTV albeit that the person using the card was wearing a fluorescent jacket with the hood up. The prosecution relied on evidence that the user of the cash machine thereafter moved in the direction of MH’s home. Evidence was also called from an image comparison expert and a podiatrist to compare the gait and posture of the man seen at the ATM on the CCTV images with that of the respondent. The image comparison expert concluded that her comparison gave “limited support” to the proposition that they were the same man: this evidence was the subject of significant challenge on behalf of MH.

[15]The fourth limb of the prosecution case concerned what was alleged to have been an attempt to create a false alibi. In fact, no alibi was advanced during the trial and MH’s case was always that he did not remember where he was on 11 January 2008. The basis for the contention was that the police had covertly recorded a conversation that MH had with his mother in which he told her that he might have an alibi in the form of Sarah Wrigley and Gary Warland. He said that Ms Wrigley had informed him that she had seen in her diary that he was at their party on the date in question. However, Ms Wrigley gave evidence at trial that she had never kept a diary and both said that they had not met the respondent until August 2008 and therefore could not possibly have provided him with an alibi for 11 January 2008.

[16]The defence case was that MH had not killed Mrs Edmonds and had never entered Fig Tree Cottage at any time. MH accepted that he was the user of the mobile phone which had accessed the cell site in the relevant vicinity of the cottage but that these sites covered not only the cottage and the river path but far wider areas including public houses which he may have visited or roads along which he might have been travelling. MH denied being the user of the cash machine. He said that he could not recall where he was on the afternoon of the murder. He may have been with other people and he could have been at one of the pubs that he used to frequent on a Friday, or travelling between pubs.

[17]It was also argued that he was not seen on any of the footage from the CCTV cameras sited between the murder scene and his home address; further, late disclosed CCTV footage showed him in Eastleigh town centre on that date behaving normally and not wearing the clothing worn by the user of the cash machine. In relation to that person, expert evidence identified differences between him and MH; in particular that his apparent shoe size was far larger than that of the respondent. Evidence from friends and acquaintances, called as prosecution witnesses, was that the acquitted person was a placid, easy-going man who was never violent or aggressive. No false alibi was ever advanced and the prosecution evidence on that issue added little or nothing to the case against him. Further, there was evidence admitted by way of admissions that numerous eye-witnesses had seen men engaging in suspicious activity in the vicinity of the cottage but none of these witnesses identified MH on a parade. The defence forensic expert was critical of a number of different aspects of the forensic procedures employed by the police and prosecution forensic team.

[18]By the end of the case, the state of the evidence was such that it was accepted by the prosecution that the DNA evidence recovered from the rolling pin was the only evidence which was capable of linking the respondent directly with the murder scene. It was also accepted that the other strands of the prosecution case constituted circumstantial evidence that could be used to support adverse conclusions based on the DNA evidence. Accordingly, Sir David Clarke (whose summing up to the jury was clear, concise and faultless) directed the jury that if they were not satisfied with the reliability of this DNA evidence, then they could not safely find the respondent guilty. In the event, on 20 January 2012, MH was, indeed, acquitted.

New evidence

[19]The new evidence upon which the Crown relies is the result of an examination (not previously undertaken) of the fibre tape lift removed from the left sleeve of Mrs Edmonds’ blouse on the morning following her being found, while she was still in situ at her home. Some twenty pieces of possible cellular material were recovered from the tape lift, the DNA within that material then being enhanced. Tests were then run in triplicate and a partial DNA profile was obtained indicating the presence of DNA from one male (there being nothing to suggest the presence of DNA from more than one individual). All the confirmed components in the partial profile matched the corresponding components in the DNA of MH, such that the scientist (Geraldine Davidson) concluded that at least some of the DNA from the back of the left sleeve of the blouse could have originated from MH although it was not possible to say when the cellular material was deposited or what action might have led to its deposit. Although secondary transfer (ie from MH to some other person and from that person to the blouse) could not be ruled out, it was the opinion of the scientist that the findings were as might be expected if the DNA was deposited by direct contact between MH and Mrs Edmonds, and that the absence of DNA from anyone else was more likely if the DNA was a primary rather than a secondary transfer.

[20]The potential impact of this finding was then assessed by reference to statistical analysis conducted by Sonia Marshall (who had undertaken the earlier statistical work on the case). She concluded that the matching results were approximately 26 million times more likely if the DNA had originated from MH rather than if the results were from someone other than and unrelated to him. It was her opinion that the matching results provide far more support for the DNA having originated from him rather than not. Bearing in mind the statistical evidence in relation to the original profile (2,500 or 2,800 times more likely), this evidence, subject to the caveats expressed by the scientists, was potentially far more significant than the original DNA evidence which itself had been sufficient to leave the case to the jury.

[21]On the basis that the taping was taken within hours of the body of Mrs Edmonds being discovered, at the very centre of this application (for reasons concerned with due diligence) is the fact that the relevant analysis which produced these results was not undertaken until February 2014, that is to say, over 6 years later. To that end the chronology of the investigation has been subjected to detailed analysis both by reference to witness statements from the relevant witnesses, contemporaneous documentation and oral evidence from Det. Insp. Chudley (as he now is) and the forensic scientist responsible for advising on the case from the outset, Michael Appleby. Both were called by Mr Michael Bowes Q.C. for the Crown and cross-examined by Mr William Mousley Q.C. for MH (who did not appear at the original trial). What follows is a distillation of the documentation and their evidence.

[22]From the outset both Det. Insp. Chudley and Mr Appleby were concerned to work out and implement a strategy for the collection and examination of forensic evidence which met the circumstances of the case. This involved an order of priority in examination, based on which type of exhibit can be expected to be most likely to produce a reliable finding. Although the police in general (and Det. Insp. Chudley in particular) have great experience in the investigation of crime scenes, advice and guidance is taken from the expert forensic scientists employed by the police for that purpose. In that regard, there was no question of budgetary constraint and this investigation was, in fact, by far the most expensive forensic examination ever undertaken by the Hampshire police.

[23]Mr Appleby was responsible for the orderly collection and examination of exhibits, the tapings being taken before the body was moved so as not to disturb anything that might be found: tapings consisted of applying a sticky tape to the exposed upper surfaces of the clothing and body, intended to catch fibres or other material loosely resting on the clothing or body which would or could fall off and be lost when it was moved. The sticky surface was then stuck onto a piece of clear cobex sheeting (with the fibres and anything else trapped between the tape and the sheeting) before being placed into a plastic exhibit bag. The relevant taping was, as a result, only the 23rd exhibit to be seized.

[24]The primary value of the tapings was to provide a comparison for any fibres that might come from clothing of a suspect with those recovered from the Mrs Edmonds’ body or clothing. Although Mr Appleby described the subsequent forensic examination as “exhaustive”, he did not initially (or indeed ever) think that it was appropriate or justifiable to examine the fibre tapings for cellular material or DNA for a number of reasons. Collected together, his reasons were as follows:(i) It is commonplace for people to accumulate their own skin flakes on garments they wear as a result of flakes being shed from their scalp (dandruff) and other parts of their body, particularly if their skin is dry and flaky. There would therefore be a relatively high expectation that at least the vast majority of the flakes observed on the fibre tapings would originate from Mrs Edmonds.

(ii) No information was available to direct a targeted sampling of the apparent skin flakes, as it was not known where the deceased may have been touched by her attacker/s, or even whether there had been direct physical contact.

(iii) The probability of obtaining a DNA profile from a single apparent flake of skin was limited, as the quality and quantity of DNA contained in each was unknown.

(iv) If batches of skin flakes were selected, to increase the chances of DNA analysis being successful, there was the possibility that flakes from more than one person would be mixed together and any resultant profile may then have been a complex mixture, which would not be amenable for comparison with the National DNA Database.

(v) The ownership of dogs, who themselves may have shed numerous skin flakes, may have meant that a proportion of the apparent flakes were not of human origin.

[25]That is not to say that the possibilities of positive DNA results were ignored. A number of tapings bore numerous hairs and skin flakes. An attempt was made to analyse the recovered hairs (which proved unproductive) and, given that Mrs Edmonds trousers had been at least in part lowered, a decision was taken to test the skin flakes recovered from the trouser tapings on the basis that if that had been done by her attacker, he might have left some biological trace behind. In the event, the tests returned results indicating the presence of both animal and female human DNA (almost inevitably that of Mrs Edmonds herself). This served only to reinforce Mr Appleby’s belief that testing the tapings from the blouse was far too speculative to be justifiable. As to this view, he said:

“I gave my advice and I still believe that my advice was sound.”

[26]Neither was Mr Appleby alone in his view. Forensic issues were kept under review and, at an early stage, considered not only by Mr Appleby but also a forensic specialist adviser at the Forensic Science Service (John Bassett), an internal Hampshire Police review by the Head of the Scientific Services Department and Crime Scene Co-ordinator (Terry Lowe), an external review by Surrey Police and a review by a forensic expert from the National Police Improvement Agency (NPIA) (Malcolm Boots). All made suggestions as to further lines of enquiry including further examination for the presence of the attacker’s DNA on those areas of clothing immediately around the stab holes. None suggested that the fibre tapings should be examined for the presence of cellular material. The NPIA review concluded that the scene examination contained “meticulous and comprehensive recovery of evidence” and that the submission to forensic laboratories had “reached the stage of highly speculative examinations being completed”. Whatever criticisms were made by the defence at trial, it has not been suggested that this particular forensic test was suggested.

[27]Notwithstanding the views of the experts, Det. Insp. Chudley was “always of the opinion that there must be something there”. He pressed the scientists for further examinations, in particular of the fibre tapings to see if any cellular material could be recovered and usefully analysed. As we have recounted, Mr. Appleby consistently pointed out the difficulties in such an exercise. Similarly, in November 2008, when Cellmark Forensics were asked to review the forensic work to date and to consider further possible work, although some suggestions were forthcoming, in relation to the cellular material on the tape lifts, the Cellmark scientist assigned to the case, Geraldine Davidson advised it would be too speculative. She remained of that view in 2010, suggesting that other investigations had a greater potential to produce results.

[28]After the trial, Det. Insp. Chudley completed a review of the case prior to the papers being filed pending further scientific developments that might generate new evidence. For the sake of completeness, a number of further items were examined in the interim but, again, it was not felt that the tapings would generate worthwhile evidence of any sort. None of this was conducted with any urgency: the suspect had been acquitted, there were no new leads and the case was no longer under active investigation or review.

[29]So it was that, in October 2012, Det. Insp. Chudley attended a course on crime scene co-ordination and given the “nagging doubt” that remained about DNA, he raised the matter with a scientific expert on the course. He learned more about a process referred to as Y STR testing which targets only male DNA and, although not as discriminatory as standard DNA testing, would in this case of a female victim, remove the risk of the victim’s DNA obscuring any findings. He thus returned to Geraldine Davidson who remained of the view that viable results would not be obtained but agreed (subject to work on active work then being undertaken) to review the position. Following a report, in August 2013, the senior investigating officer agreed that the DNA recovered from the tapings should be reviewed and, in February 2014, the results were obtained.

[30]Thereafter, on 23 September 2014, the consent of the Director of Public Prosecutions (DPP) was obtained for further investigative steps and, following the ex parte order granted by this court, a month later, MH was rearrested. On 20 November, the DPP consented to this application being made. It is worth adding that, for the purposes of this application, no issue has been raised in relation to continuity and no attempt has been made to rebut the evidence either as to the facts or by contrary opinion.

Legal Framework

[31]Following a report by the Law Commission in March 2001, Law Com. No. 267, Part 10 of the 2003 Act (“Re-Trial for Serious Offences”) introduced exceptions to the long established principle in our criminal law against double jeopardy. Section 75(1) applies Part 10 to acquittals of a qualifying offence in proceedings on indictment in England and Wales or as a result of an appeal following such proceedings. A qualifying offence is an offence listed in Part 1 of Schedule 5 and includes murder. Any application by a prosecutor for the quashing of an acquittal and a retrial must be made to this court. It must have the written consent of the Director of Public Prosecutions. She may only give consent if satisfied that there is evidence which appears to meet the requirements of s. 78, it is in the public interest, and any trial would not be inconsistent with the United Kingdom’s obligations under Article 31 or 34 of the Treaty on European Union relating to the principle of ne bis in idem: ss.75, 79(4). The DPP has published guidance which explains that she would only want to proceed in cases in which, as a result of new evidence, a conviction is highly probable, either by a plea of guilty or by the verdict of a jury, and any acquittal by a jury would appear to be perverse. Under the legislation, not more than one application may be made in relation to an acquittal: s. 76(5).

[32]On a prosecutor’s application this court must be satisfied that the requirements of ss. 78 and 79 are met before making the

[33]On behalf of the respondent Mr Mousley drew on the jurisprudence to advance a number of propositions as to how these provisions should be interpreted. Overall, he submitted, while each case is fact specific the provisions confer an exceptional power on this court which should be exercised only when otherwise justice would fall into disrepute. The relatively small number of cases in which acquittals had been quashed and retrials ordered supported, he said, this submission. As regards the requirement of new and compelling evidence in section 78, Mr Mousley submitted that the test is clearly not whether the prosecution now has a better case than at the time of the trial where the person was acquitted but whether the new evidence is overwhelming.

[34]As to the interests of justice test in s. 79, Mr Mousley contended that the failure of an officer or by a prosecutor to act with due diligence or expedition extended to the failure of a forensic scientist undertaking investigations for the case. They were part of the team for the investigation and prosecution of the case and their failures were the failures “of an officer or prosecutor”. Finally, he submitted, while delay is clearly relevant to the interests of justice, so too is inaction, indifference or sloppiness on the part of anyone in the investigation or prosecution team.

[35]In what appears to be the first case where a retrial was ordered under Part 10 of the 2003 Act, R v. Dunlop

[2006] EWCA Crim 1354

;

[2007] 1 Cr App R 8

, this court referred to a passage in the Law Commission Report of March 2001, that there is the spectre of public disquiet, even revulsion, where someone is acquitted of the most serious crime and new material points strongly or conclusively to his guilt. The court commented in relation to the interests of justice test that “the public would be rightly outraged” were the acquitted person in that particular case not retried for murder, simply on the basis that he would not have made the confessions he did if he had appreciated that they might lead to his retrial: [45].

[36]R v. Miell

[2007] EWCA Crim 3130

;

[2008] 1 Cr App R 23

was another confession case, but there the prosecutor’s application for a retrial was dismissed since the confession contained manifest untruths and was subsequently retracted: the requirements of section 78 were not met.

[37]In R v. A

[2008] EWCA Crim 2908

;

[2009] 1 Cr App R 26

, after the respondent’s acquittal of rape similar allegations against him emerged from different complainants, which would have been admissible at his trial. In ordering a retrial this court commented that the guidance of the Director of Public Prosecution was entirely appropriate and consisted with the statute: [28]. The court rejected the respondent’s submission in that case that the new evidence required under section 78 had to be “direct” in the sense of directly related to the rape, as opposed to the evidence which was from other complainants about other incidents. Any admissible evidence, it held, fell within section 78: [36]. The court added that whether new evidence is highly probative may be more readily established when it is indeed direct in the sense suggested, although ultimately that was a fact specific judgment: [37]. As regards s. 79(2)(c)–(d) (failure to act with due diligence and expedition), the court identified the statutory purpose as being to ensure that applications under Part 10 of the 2003 Act do not provide a cover for, or encourage, the sloppy or inefficient investigation and prosecution of offences: [40]. The court also stated that the interests of justice would not be served where the proposed prosecution was irremediably flawed, for example the evidence at the first trial had been “shot to pieces”: the prospects of conviction had to be very good: [42].

[38]R v. B(J)

[2009] EWCA Crim 1036

and R v. G(G), B(S)

[2009] EWCA Crim 1207

were cases where the co-accused who were convicted entered into agreements under the Serious Organised Crime and Police Act 2005 to give evidence against accomplices who had been acquitted, and in respect of whom applications under Part 10 were now being made. In both cases this court refused the prosecutors’ applications to retry those who had been acquitted because the evidence fell short of being reliable. In the second case this court noted that each case depended on its facts but the bar was a high one. It was only where there is compelling new evidence of guilt, of the kind which cannot realistically be disputed, that the exceptional step of quashing an acquittal will be justified: [5].

[39]In CPS v D

[2009] EWCA Crim 1423

there was what the court described as “overwhelming” new DNA evidence, not available at trial, that the acquitted person had raped his grandmother a quarter of a century previously: [16]. He had given an alibi at his trial, and the court commented that there was powerful evidence that a miscarriage of justice had occurred because he had lied at his trial: [19].

[40]An acquittal was quashed and a new trial ordered following the reopening and reinvestigation of a woman’s murder on the tenth anniversary of her death: R v. W

[2010] EWCA Crim 1576

. Blood from the victim was found on the respondent’s boot, having been missed during the first investigation. The court said that the overwhelming probability was that it must have been deposited either through direct contact with her or through spattering, which inexorably led to it being highly probative, “in effect decisive”, of the case against the respondent [40]-[41].

[41]Although those conducting the forensic examinations were not officers within the meaning of section 79(2)(c)-(d) of the Act, the court held that since the section does not confine the interests of justice to the factors set out there, it would have regard to their diligence: [55]. The court examined at some length the background to why the blood may have been missed on the original examination of the boot but, while concerned, decided that it would be wrong to conclude that the forensic scientists had in the circumstances acted without due diligence: [55]. Even though the new investigation was not conducted with due diligence at its initial stages, it could not be concluded that any significant prejudice had been caused by that delay, given the nature of the new evidence: [58]. There are undeniable parallels with the present facts; in some ways, the present case is stronger.

[42]In R v. Dobson

[2011] EWCA Crim 1256

;

[2011] 2 Cr App R 8

this court quashed an acquittal of Dobson and ordered his retrial where fibres and blood from the victim, Stephen Lawrence, were found through new techniques on a jacket and cardigan belonging to Dobson, and there was no reasonable opportunity for cross-contamination [25], [50]–[53], [77]–[78]. The court concluded that there was a high probability on the basis of the newly discovered evidence that Dobson was a party to the attack on Stephen Lawrence: [79]. In the course of examining the relevant law, the court held that compelling evidence for the purposes of s. 78 is defined in the section itself and does not mean that the evidence must be irresistible, or that absolute proof of guilt is required. “[T]he court should not and is certainly not required to usurp the function of the jury, or, if a new trial is ordered, to indicate to the jury what the verdict should be”: [20].

[43]Commenting on the passage in paragraph [5] of R v. G(G), B(S), referred to earlier in this judgment, the court in R v. Dobsonexplained that it was designed to highlight that the quashing of an acquittal is indeed an exceptional step and can only be ordered if the statutory requirement in relation to the reliability of the new evidence is clearly established: [20]. The court added:

“[21] However the legislative structure does not suggest that availability of a realistic defence argument which may serve to undermine the reliability or probative value of the new evidence must, of itself, preclude an order quashing the acquittal. It must, of course, be carefully analysed, and given its proper weight. If the argument, or indeed any defence evidence, leads the court to conclude that the new evidence is not, after all, as reliable or substantial as it was thought to be, or that it no longer appears to be highly probative of guilt, then the court cannot be satisfied that the statutory test has been met. That is a fact specific decision. In the end, there are three defined elements: provided the new evidence is reliable, substantial, and appears to be highly probative, for the purposes of section 78 it is compelling: otherwise it is not.”

[44]In R v. K

[2013] EWCA Crim 1820

the respondent had been acquitted of various sexual assaults on NA at his second trial, the jury being unable to agree at the first. The new evidence was from six other women in the same area, who were allegedly attacked in a manner bearing a striking similarity to that alleged by NA many months previously. After a careful review the court concluded that the new evidence placed a wholly fresh complexion on the complainant’s evidence, which rendered the likelihood of conviction upon a retrial as highly probable: [73]. It added that the ultimate test was whether a retrial is necessary to preserve the integrity of the criminal justice system: [76].

[45]In our judgment a court must decide an application under Part 10 of the 2003 Act by adherence to the statutory language, without gloss or embellishment. While we accept Mr Mousley’s contention that the test for quashing an acquittal and ordering a retrial is not whether the prosecution has a better case now than at the time of the original trial, we cannot accept his proposition that a retrial can only be ordered if otherwise justice would fall into disrepute. The Law Commission commentary along these lines, referred to in R v. Dunlop, was attempting to explain the change in public policy but that language was not given statutory form. The court’s comment in Dunlop itself – “the public would be rightly outraged” – was quite clearly anchored to the facts in that case.

[46]The compelling evidence test in s. 78 is set out in the section itself: the evidence must be reliable, substantial, and appear in the context of the outstanding issues highly probative of the case against the acquitted person. Contrary to Mr Mousley’s submission it does not mean that the new evidence must be overwhelming. If authority is needed for that, it can be found in the judgment in R v. Dobson (see paragraphs [20]-[21], referred to earlier in this judgment), which also explains the language in paragraph [5] of R v.G(G), B(S). In as much as the guidance adopted by the Director of Public Prosecutions for the purposes of her functions under s. 76 of the 2003 Act adopts an approach akin to requiring that the new evidence be overwhelming – we express no view as to whether it does – that has no bearing on how this court should make a determination under s. 77 or as to the correct interpretation of the statutory language in s. 78. Use of the description “in effect decisive” to describe the evidence of the blood subsequently found on the boot in R v. W, or the description “overwhelming” in CPS v. D, takes the matter nowhere since these descriptions were clearly made in the context of the new evidence in those cases.

[47]As to the interest of justice requirements, s. 79(2) does not confine the court to the factors set out, although regard must be had to them “in particular”. Thus, following R v W, we accept that although those undertaking the forensic work are not officers or prosecutors within the statutory language of s. 79(2)(c)-(d), their due diligence and expedition may be taken into account. In our view the test for due diligence and expedition is an objective one: what would a reasonably competent police officer, prosecutor or forensic scientist have done facing the particular circumstances of the case.

[48]In that regard, inaction, indifference or sloppiness are, of course, highly material and there can be no suggestion that the legislation permits an investigation to be undertaken in a half-hearted manner on the basis that if it fails, more can then be done and permission will be given to set aside the general rule preventing double jeopardy to allow a new trial. On the other hand, that is not to say that human error by a police officer or a scientist is necessarily determinative against an application: all the circumstances must be considered with particular reference to those set out in s. 79(2) of the 2003 Act.

Analysis

[49]Mr Mousley correctly accepts that the evidence is new (in that it was not adduced in the original trial) but he challenges the proposition that it is compelling in the sense of being reliable, substantial and, in the context of the outstanding issues, highly probative of the case against MH. His argument was not addressed to its reliability, or the fact that it was substantial. Rather, he put forward the proposition that it did not necessarily undermine the defence case advanced at trial but, assuming its authenticity, was “just an additional factor” and would not have compelled the jury to convict.

[50]Mr Bowes, on the other hand, submits that it is reliable (based on an examination of the lifts which could not have been contaminated, a cautious statistical analysis expressed in the form approved by this court) and substantial in statistical terms (26 million times more likely if the DNA originated from MH than if it is from someone other than and unrelated to him). He also argues it is highly probative in that it places MH at the murder scene where, in the course of his trial, he denied ever having been at Fig Tree Cottage, or having any physical contact with Mrs Edmonds. Mr Mousley counters by pointing to the observation that secondary transfer cannot be ruled out, it only being more likely to have been a direct transfer and more likely that such transfer occurred at the time of the incident.

[51]In our judgment, it is beyond argument that the evidence is new, reliable and substantial. Is it highly probative? For the purpose of this analysis, we put to one side any probative impact of the evidence of ATM man (which appears to have been the subject of substantial contrary evidence) and the contention of false alibi, recognising that Sir David Clarke specifically put the case on the basis that unless satisfied with the reliability of the DNA evidence relating to the rolling pin, the jury could not safely convict. The fact is, however, that the DNA evidence then available (with a probability of 2,500 or 2,800 greater likelihood of it emanating from MH than someone other than and unrelated to him) was sufficient to generate a case for MH to answer. This new evidence comes from an entirely different and unrelated source (the blouse) and is independent, with a probability some four orders of magnitude greater. We recognise that the possibility of secondary transfer cannot scientifically be ruled out but there is no suggestion of other DNA recovered from the total quantity of cellular material analysed and that secondary transfer would have to have been in a way that kept the transferee’s DNA off the blouse. Combined with the other DNA evidence and such circumstantial impact that the cell site analysis might generate, in the context of the outstanding issues, in our judgment, this evidence is highly probative.

[52]We turn to the test posed in s 79(1) and (2) of the 2003 Act relating to the interests of justice. Mr Mousley submits that a fair trial would not be possible because of difficulties of recollection by witnesses, the need to investigate CCTV material only disclosed during the trial, the complexity of the cell site investigation and the fact that leading counsel who conducted the defence is longer available. All this is exacerbated by the very substantial press coverage which might have impacted on the reliability of witnesses.

[53]More substantially, he argues that the failure to adduce the new evidence at the trial and before this application arises from a lack of due diligence and expedition by “an officer or prosecutor”. In reality, the tapings from which the DNA has been extracted were obtained within hours of the murder; 72 skin flakes were identified and testing such skin flakes was within the contemplation of the Forensic Science Service because they did such testing of skin flakes from Mrs Edmonds’ trousers. Furthermore, although Geraldine Davidson was asked to look at these skin flakes, in October 2010, she felt that “there are other areas which may be better addressed first”. No further thought was given to the possibilities of additional examination even after disclosure of defence expert evidence (critical of the approach of the police) or, indeed, immediately after the trial. Even after Det. Insp. Chudley suggested the examination, a further 16 months elapsed before it was done and it was only 8 months thereafter that MH was rearrested.

[54]In our judgment, none of these arguments withstand detailed examination. Although eye witness evidence is relevant to a number of aspects of the case, the transcripts of that evidence from the trial will provide an assurance that MH is not disadvantaged by the delay. The CCTV and cell site evidence is forensic in nature and can be examined or re-examined without loss of evidential value and the scientific evidence is as available for a re-trial as it was for the original trial; none of the experts concerned will be affected adversely to MH by earlier evidence or any other aspect of the facts. As for the press coverage, the time that has elapsed will more than compensate for its impact and jury directions in relation to reporting are commonplace and effective.

[55]Turning to the issue of diligence and expedition, as we have explained, whether the forensic scientists fall within the category of “officer or prosecutor” (which we conclude is neither likely nor obvious), the general question of the interests of justice properly include a consideration of all the circumstances, including the diligence and expedition of those advising the police or the CPS. That must include the forensic scientists instructed in a case who provide leadership and advice on the most appropriate approach to issues surrounding the collection and examination of material whether from the crime scene or elsewhere and the potential benefits likely to accrue from such examination.

[56]The effect of Mr Mousley’s approach is that if, as a matter of fact, a test could be done or an examination undertaken and it is not, then any evidence that subsequently accrues from its completion will be the consequence of lack of due diligence and/or expedition. We do not agree. Both the police and the CPS rely on forensic scientists, first, to advise on the most fruitful lines of enquiry (including the taking of samples) and, second, to undertake such examinations as are professionally considered appropriate and which flow from the samples taken or enquiries undertaken. There is no evidential basis for a submission that the advice was misconceived, wrong, or even unduly cautious, let alone that it was advice which no reasonable forensic scientist could have given; neither is there any evidence to suggest that the police failed to exercise due diligence by relying upon it. Furthermore, it cannot be suggested that the police were only prepared to put limited resources into the investigation or that it is as a result of cost that this testing was not undertaken: in fact, it is clear from all the evidence that the police did approach the forensic investigation without regard to cost although they did properly have regard to what is, in effect, a cost benefit analysis.

[57]It would obviously be quite wrong for the police or the CPS to impose a limit on the extent of an investigation on the basis that if a prosecution fails, a subsequent investigation can lead to an application under s. 78 of the 2003 Act and a further prosecution. That is not, however, what happened here. Considering all the possible avenues of investigation open to them, the police (and the forensic scientists) did all that they considered was appropriate and likely to achieve results. Far from criticising Det. Insp. Chudley for failing to act expeditiously or with due diligence, he took advice at every step of the way and pursued inquiries up to and beyond the point when many would have stopped. That the investigation which he finally persuaded Geraldine Davidson to undertake unexpectedly bore fruit should not and does not mean that he (or the scientists) is to be criticised as a result.

[58]As we have said, the features mentioned in s. 79(2) of the 2003 Act are those to which the court “in particular” must have regard. The overall merits of the application are, therefore, to be considered with these factors in mind but bearing in mind all the circumstances. We have done so and conclude that we are satisfied that the requirements of s. 78 and 79 of the 2003 Act are met and, in the circumstances, we quash the acquittal of MH and order that he be retried upon an indictment alleging the murder of Georgina Edmonds. As Lord Judge CJ observed in R v C

[2009] EWCA Crim 633

at [26], the trial will be difficult, but there is no reason to believe that it will not be fair.

[59]As for the prejudice which would otherwise flow from this application and judgment, pursuant to s. 82 of the 2003 Act, we have no doubt that the interests of justice require whether or not the previous acquittal is raised at the retrial, that there shall be no publication of this application or this judgment until the conclusion of the trial. MH must be re-arraigned within 2 months at a Crown Court to be nominated by a Presiding Judge of the Western Circuit. Subject to a further application to that Crown Court, bail will continue to be extended to MH on the terms which have hitherto applied until such time as the court otherwise orders.

order

s.77(1). The requirements of those sections are respectively that there must be new and compelling evidence against the acquitted person in relation to the qualifying offence, and it must be in the interests of justice to make the order. Under s. 78(2) evidence is new if it was not adduced in the proceedings in which the person was acquitted. As to whether evidence is compelling, s. 78(3) provides: (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. As to the interests of justice test, section 79(2) states: “(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.” (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.