West Law Report

Ear-print evidence probative only if minutiae identifiable

Posted in Admissibility, relevance, Times Law Report by mrkooenglish on May 15, 2008

From The TimesMay 16, 2008

Ear-print evidence probative only if minutiae identifiable
Court of Appeal, Criminal Division

Published May 16, 2008

Regina v Kempster

Before Lord Justice Latham, Mrs Justice Swift and Mr Justice Foskett

Judgment May 7, 2008

Evidence of those experienced in comparing ear-prints was capable of being relevant and admissible but such comparison would provide information which could identify the person who had left it on a surface only when sufficient minutiae could be identified and matched.

The Court of Appeal, Criminal Division, so held in a reserved judgment, allowing an appeal by Mark Kempster, on a reference by the Criminal Cases Review Commission, against, inter alia, a conviction of burglary for which he was convicted on March 30, 2001 at Southampton Crown Court (Mr Recorder Ignatius Hughes and a jury) and imprisoned for ten years.

Mr Michael Mansfield, QC and Mr Alan Masters for the defendant; Mr Paul Garlick, QC for the Crown.

LORD JUSTICE LATHAM, giving the judgment of the court, said that the appeal against conviction had been brought on the ground that relevant fresh evidence might have undermined the expert prosecution evidence, that the recovered ear mark from the scene of the alleged crime, matched the ear-print provided by the defendant.

The police had recovered an ear-print from the fixed window pane to the side of the rear kitchen window of the premises which had been forced. The expert who gave evidence at the trial contended that the ear-print found on the window pane matched ear-prints subsequently taken from the defendant.

The defendant had based his application against conviction on the fresh evidence of a report, dated June 20, 2006, by another expert, who, as a result of his extensive work in the field, understood the physiology and technology involved in ear-print comparisons.

He concluded that the prints used in the appellant’s case, were not of sufficient quality to conclude safely that there was a match; the gross anatomical features of the ear visible in the crime scene mark, failed to accord with the reference points provided by the appellant.

In the court’s judgment, ear-print comparison was capable of providing information which could identify the person who had left such a print on a surface, where minutiae could be identified and matched. Minutiae were small anatomical features such as notches, nodules or creases in the ear structure.

Where the only information came from gross features, the main cartilaginous folds, there was likely to be less confidence in such a match, because of the flexibility of the ear and the uncertainty of the pressure which would have been applied at the relevant time.

Although the ear-print at the scene was consistent with having been left by the defendant, the gross features provided too imprecise a match to justify a guilty verdict.

Solicitors: Birds, Wandsworth; Crown Prosecution Service, Hampshire.

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Admission of relevant bad character evidence

From The TimesMay 16, 2008

Admission of relevant bad character evidence
Court of Appeal, Criminal Division

Published May 16, 2008

Regina v Nguyen

Before Lord Justice Dyson, Mr Justice Maddison and Sir Richard Curtis

Judgment March 18, 2008

Where the Crown chose to rely on relevant bad character evidence which it had decided not to make the subject of a criminal charge, that could not have such an adverse effect on the fairness of the proceedings that the court ought not to admit such evidence.

The Court of Appeal, Criminal Division, so held in a reserved judgment when dismissing an appeal by Thu Van Nguyen against his conviction on October 2, 2006 in the Central Criminal Court, before Judge Goddard, QC, and a jury, of murder.

Mr Edward Rees, QC, assigned by the Registrar of Criminal Appeals, for the defendant; Mr Simon Denison for the Crown.

LORD JUSTICE DYSON said that on two separate occasions in December 2005 the defendant had been involved in incidents of “glassing”. On the second occasion the victim had died the next day.

The Crown was granted leave to adduce evidence of the first incident as evidence of bad character under section 101(1)(d) of the Criminal Justice Act 2003 on the basis that it was relevant to an important matter in issue between the defendant and the prosecution, namely, the question whether the defendant had a propensity to commit offences of the kind with which he was charged: see section103(1)(a). The defendant was convicted.

On appeal, it was submitted that that ruling was wrong because the Crown had made an informed and deliberate decision not to charge the defendant with the earlier assaults, but rather to rely on them as evidence of bad character in support of the alleged murder. It was argued that there had to be some limit to the Crown’s ability to introduce evidence of serious, untried offences as evidence of bad character under section 101(1)(d) and that the admission of the previous assaults was unfair.

Their Lordships did not accept that the mere fact that the Crown chose to rely on relevant bad character evidence which it had decided not to make the subject of a criminal charge could, of itself, have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

The premise on which the appeal was based was wrong; accordingly, the appeal would be dismissed.

Solicitors: Crown Prosecution Service, Old Bailey Trials Unit.

Wife’s statement can be admitted in evidence

Posted in Admissibility, Criminal Justice Act, Times Law Report by mrkooenglish on May 14, 2008

From The TimesMay 14, 2008

Wife’s statement can be admitted in evidence
Regina v L (Evidence of wife) in the Court of Appeal, Criminal Division
Court of Appeal, Criminal Division

Published May 14, 2008

Regina v L (Evidence of wife)

Before Lord Phillips of Worth Matravers, Lord Chief Justice, Mr Justice Bean and Mr Justice Wilkie

Reasons May 7, 2008

There was no requirement to tell a wife that she was not a compellable witness against her husband before interviewing her about a crime of which her husband was suspected.

The Court of Appeal, Criminal Division, so held in a reserved judgment, giving reasons for dismissing, on April 16, 2008, an appeal by L against his conviction at Mold Crown Court (Judge Merfyn Hughes, QC and a jury) on October 25, 2007, on five counts of indecent assault and four counts of rape.

Mr John Philpotts, assigned by the Registrar of Criminal Appeals, for the appellant; Mr Karl Scholz for the Crown.

THE LORD CHIEF JUSTICE, giving the judgment of the court, said that while the appellant was in custody, the police had approached his wife and she had made a short statement.

At trial the prosecution had called the wife as a witness. However, the judge had ruled that she was not a compellable witness against her husband, under section 80 of the Police and Criminal Evidence Act 1984, and the wife had declined to give evidence.

The prosecution had then applied to admit the wife’s statement to the police under section 114 of the Criminal Justice Act 2003 and the judge had ruled that he had power to do so and that it was in the interest of justice that he should do so.

Should the police have told the wife that she could not be compelled to give evidence against her husband before taking a statement?

The appellant submitted that where the police would be obliged to caution a husband before taking a statement from him, they should tell his wife that she could not be compelled to give evidence against her husband before taking a statement.

Their Lordships could see no basis for such a requirement. The need to caution a suspect arose from the fundamental principle that a person could not be required to give evidence that might incriminate himself. The policy against compelling a wife to give evidence against her husband was not the same.

To caution a wife before taking evidence from her could inhibit the investigation of crime. The policy that prevented a wife from giving evidence against her husband did not require such a limitation upon the powers of investigation of the police to be implied.

Accordingly, there was no requirement to tell a wife that she was not a compellable witness against her husband before interviewing her about a crime of which her husband was suspected.

Having said that, it did not follow that there might not be circumstances in which the police would be well advised to make it plain to a wife that she need not make a statement that implicated her husband.

If a question was raised as to whether it was in accordance with the interests of justice to admit a wife’s statement, the prosecution’s hand was likely to be strengthened if it could show that the wife made her statement voluntarily, having been expressly informed that she was under no obligation to make it.

Should the wife’s statement have been excluded automatically or as a matter of discretion?

The appellant submitted that it was tantamount to compelling a wife to give evidence against her husband if, when she refused to testify orally, her statement was adduced as hearsay evidence, so that to adduce evidence in such circumstances offended against the spirit, if not the letter, of section 80 of the 1984 Act.

However, compelling a wife to give evidence was not the same thing as permitting another witness to give evidence of a voluntary statement made by the wife in the past. Thus section 80 did not pose a legal bar to the admission of such evidence.

Nevertheless, it could well be objectionable if the police took a witness statement from a wife, intending to call her to give evidence, and then sought to place it in evidence when the wife stated that she did not wish to give evidence against her husband.

There was an obvious paradox in excusing the wife from giving evidence, but then placing before the jury in the form of a hearsay statement the very evidence that she did not wish to give. In any such case, whether it was just to admit the statement had to depend upon the facts.

In the present circumstances, their Lordships could see no injustice in admitting the statement.

Solicitors: Crown Prosecution Service, Wrexham.

Evidence elicited in safety interviews is admissible

From The TimesMay 8, 2008

Evidence elicited in safety interviews is admissible
Court of Appeal, Criminal Division

Published May 8, 2008

Regina v Ibrahim and Others

Before Sir Igor Judge, President, Mr Justice Forbes and Mr Justice Mackay

Judgment April 23, 2008

Evidence obtained during safety interviews held with a defendant in the absence of his solicitor was admissible at his subsequent trial subject to the ordinary principles governing a fair trial and excluding unfair evidence.

The Court of Appeal, Criminal Division, so held when refusing applications by Muktar Said Ibrahim, Yassin Omar, Hussein Osman (aka Hamdi) and Ramzi Mohamed, for leave to appeal against their convictions on July 9, 2007, at Woolwich Crown Court (Mr Justice Fulford and a jury) of conspiracy to murder, for which they were sentenced on July 11, 2007, to life imprisonment with minimum terms of 40 years.

Mr George Carter-Stephenson QC and Mr Ali Naseem Bajwa for Ibrahim; Mr Michael Wolkind, QC and Mr Stephen Vullo for Omar; Mr James Lewis, QC and Mr James O’Keefe for Osman; Mr Mark Milliken Smith, QC and Miss Frida Hussain for Mohamed, all defence counsel assigned by the Registrar of Criminal Appeals; Mr Nigel Sweeney, QC, Mr Max Hill and Miss Alison Morgan for the Crown.

THE PRESIDENT, giving the reserved judgment of the court, said that on July 21, 2005, bombs were detonated in the London Underground transport system and on a bus in Hackney but the main charges failed to explode. The bombers made their escapes.

The immediate objective of the investigation by the police was directed to protecting the public from any further violent incidents by finding and detaining the bombers. The four defendants were arrested, together with 14 other individuals suspected of terrorism offences.

A police superintendent directed that, in accordance with paragraph 8 of Schedule 8 to the Terrorism Act 2000, interviews with the defendants to secure public safety should take place in the absence of their solicitors.

In safety interviews, a suspect would be interviewed to obtain information which might help the police to protect life and prevent serious damage to property.

At the trial of the defendants, and on their appeals, the question arose whether the results of such interviews could be used as evidence against them. It was clear that the admission of safety interviews or their fruits in evidence at a subsequent trial, was not precluded by the legislative structure.

At the safety interviews, the defendants had made demonstrably untrue assertions which failed to suggest the defences, later advanced at trial, that the bombs were hoaxes. The judge had ruled that it was clear beyond doubt that the defendants were not misled or deceived as to the underlying purpose of the interviews, the possible consequences of answering questions or the potential risks of not revealing elements of their defence.

He also said that it was sometimes necessary for a suspect to have the assistance of a lawyer before he could understand and describe a complicated defence, but that was not the instant case.

Access to lawyers had been denied for a relatively short period and in no case for more than eight hours. Their Lordships could find nothing to support the conclusion that the judge’s decision to admit the interviews in evidence at trial was in any way flawed.

Solicitors: Crown Prosecution Service.

R v HAMADI

Last Updated: 12:01am GMT 03/01/2008

Court of Appeal (Criminal Division)
Moore-Bick LJ, Wilkie J and the Recorder of Chester
December 18, 2007

Admissibility – Consent – Criminal evidence – Cross-examination – Prosecution evidence – Prosecution witnesses – Rape – Sentence length – s. 41 Youth Justice and Criminal Evidence Act 1999 – s. 41(5) Youth Justice and Criminal Evidence Act 1999 – s. 41(3)(c)(i) Youth Justice and Criminal Evidence Act 1999 – s. 41(3)(a) Youth Justice and Criminal Evidence Act 1999 – Art. 6 European Convention on Human Rights 1950

FACTS

The appellant (H) appealed against a conviction for rape and the consequent sentence of imprisonment for public protection with a minimum term of five years. The victim (V) had been on a night out and was separated from her boyfriend (B) following an argument. On her way home, H drew alongside her in his truck and offered her a lift, which she accepted. V alleged that once inside the truck, H drove to some wasteland and proceeded to rape her. H accepted that he sometimes drove around late at night seeking sexual activity, but denied that he had raped V. He asserted that V had initiated the sexual activity and that she had become angry when he refused to participate in certain activities. The accounts provided by V and H differed greatly, providing the jury with the sole issue of whom to believe.

The judge acceded to H’s application to adduce evidence of aspects of V’s previous sexual behaviour under the Youth Justice and Criminal Evidence Act 1999 s. 41. However, the judge refused to admit evidence from a witness (W) about a sexual relationship he had had with V approximately two months before the alleged rape when V was with B. V had stated during cross-examination that she had never had relations with other people whilst seeing B. The judge ruled that W’s evidence did not have any probative value.

H submitted that

  1. the judge erred in excluding W’s evidence to the effect that V did have sexual relations with other men whilst she was seeing B and that, as a consequence, his conviction was unsafe. He argued that V’s assertion in cross-examination fell within s. 41(5) of the Act as evidence adduced by the prosecution, so that W’s evidence should have been admitted to prevent the jury being misled as to V’s sexual inclinations. Alternatively, H argued that events described in W’s evidence were similar to that which occurred in the instant case so that the latter ought to have been admitted under s. 41(3)(c)(i) of the Act;
  2. the judge was wrong to conclude that B posed a significant risk of serious harm to the public, and argued that a notional determinate sentence of 10 years was manifestly excessive.

ISSUE

Whether evidence provided by a prosecution witness under cross-examination by defence counsel was not evidence to which the Youth Justice and Criminal Evidence Act 1999 s. 41 was aimed when given its natural meaning, and could not be extended to cover such evidence.

HELD (appeal allowed in part)

(1) The test of admissibility to be applied under s. 41(3)(a) of the Act was whether the evidence sought to be adduced was so relevant to the issue of consent that to exclude it would endanger the fairness of the trial required by the European Convention on Human Rights 1950 Art. 6.

The wider principle was that the importance of protecting complainants from indignity and humiliating questions to which s. 41 was directed had to give way to the right to a fair trial, R v A (Complainant’s Sexual History) [2001] UKHL 25, [2002] 1 AC 45 considered. However, in R v A, the application was made by the defendant in relation to previous sexual intercourse he had had with the complainant. Allegations of a previous consensual relationship with an accused raised considerations of a different nature to that of a previous relationship with a third party, R v White (Andre Barrington) [2004] EWCA Crim 946, (2004) 148 SJLB 300 considered.

It was clear that V’s evidence that she was faithful to B at all times in their relationship amounted to evidence about her sexual behaviour, but it was questionable as to whether it fell within s. 41(5) of the Act as asserted by H. In the context of the instant case, “evidence adduced by the prosecution” within s. 41(5) of the Act, given its natural meaning, meant evidence placed before the jury by a prosecution witness as part of the evidence-in-chief and of other witnesses in the course of cross-examination by the prosecution. It did not naturally extend to evidence given by prosecution witnesses under cross-examination by the defence. Therefore, it could not be extended to cover all evidence given by prosecution witnesses as contended for by H. Further, the similarities identified by H could not reasonably be explained as a coincidence having regard to the background to the case, and the evidence was not truly probative in relation to the issue of consent.

(2) Before his conviction, H was a man of good character with a stable family background and had not demonstrated any pattern of offending. However a pre-sentence report concluded that H remained at a high risk of repeating similar offences in the light of H’s own description of his nocturnal activities. It was inappropriate to interfere with the conclusions of a sentencer where the sentencer accurately identified the relevant principles and applied his mind to the relevant facts. However, the aggravating features identified by the judge were not so significant as to warrant the minimum term imposed. Accordingly, the minimum term would be reduced to four years’ imprisonment.

Edward Fitzgerald QC and Paul Taylor (instructed by Michael Henderson & Co) for the appellant. Bruce Houlder QC and Timothy Gittins (instructed by Crown Prosecution Service) for the respondent.