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.

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.