England and Wales Court of Appeal (Criminal Division) Decisions

		Neutral Citation Number: [2002] EWCA Crim 1903
		Case No: 2000/5024/Z2

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		25th July, 2002

B e f o r e :

LORD JUSTICE KENNEDY
MR JUSTICE CURTIS
and
MR JUSTICE PITCHFORD
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Between:


-v- Mark Anthony DALLAGHER

Appellant

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(Transcript of the Handed Down Judgment of
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William Clegg QC & James Sturman QC for the Appellant
Robert Smith QC & Simon Jackson for the Crown
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Lord Justice Kennedy :

1. On 15^th December 1998 in the Crown Court at Leeds this appellant was convicted of murder and sentenced to life imprisonment. He appeals against conviction pursuant to leave which we granted at an early stage of the proceedings before us.

Facts.

2. During the early hours of 7^th May 1996 Dorothy Wood was in bed at home at 32 Whitby Avenue, Huddersfield. She was 94 years of age, arthritic and totally deaf. It seems clear on the evidence, and has not been disputed in this appeal, that she was murdered by an intruder who, by means of a jemmy or screwdriver, forced open a small transom window above her bed and scrambled through it. He then suffocated his victim with her pillow. It was the case for the prosecution that the appellant was the intruder.
3. Examination of the scene revealed ear prints on the glass of the window immediately below the transom window which was forced. The windows had been cleaned three or four weeks earlier. Those prints were examined by two experts who compared them with control prints provided by the appellant and others. The first expert was Mr Van Der Lugt, a Dutch police officer who had specialised in ear print comparison for over a decade. The second expert was Professor Vanezis, Regius Professor of Forensic Medicine and Science in the University of Glasgow. Both of those experts were satisfied that the ear prints found at the scene matched the control prints provided by the appellant, who lived not far away, and who had committed a number of dwelling house burglaries, frequently effecting entry by means of a transom window. In August 1996 he was sentenced to imprisonment for burglary, and shared a cell with X, an informant. According to X the appellant then revealed information about the killing, and in particular about the use of the pillow, which information was not in the public domain. It was therefore the case for the prosecution that the ear print identification was supported by the appellant’s modus operandi and by what he revealed to X.
4. When interviewed about the killing on 20^th August 1996 the appellant denied any involvement, and said that he had been with his girl friend Deborah Booth when the offence was committed, but that because she was asleep and on medication she would not be able to support his account.

At Trial.

5. At trial Mr David Hatton QC, leading counsel for the appellant, did not seek to exclude the evidence of the prosecution experts, but he did submit, unsuccessfully, that the evidence of other burglaries should not be admitted. The experts were cross examined, not on the basis that they had erred in making their comparisons, but on the basis that such comparisons are necessarily imprecise, and cannot point with any certainty to an individual who has provided a control print as being the person responsible for a print found at the scene of a crime. No expert evidence was called on behalf of the appellant who gave evidence in support of his alibi. The summing up was full and accurate, and the jury received appropriate directions as to the limited use which they could make of evidence that the appellant had committed other offences.

Later Developments.

6. Subsequently it emerged more clearly, if not for the first time, that some forensic scientists have misgivings about the extent to which ear print evidence alone can in the present state of knowledge safely be used to identify a suspect, and reports were obtained from Professor Moenssens in the United States, and Dr Champod of the Forensic Science Service in Solihull. Shortly before the appeal was due to be heard Professor Moenssens became unwell, and a report was then obtained from Professor Van Koppen in the Netherlands.

Grounds of Appeal.

7. Equipped with that additional information Mr Clegg, QC and Mr Sturman QC for the appellant, neither of whom appeared at the trial, invited us to admit the report of Professor Moenssens and to receive the oral evidence of Dr Champod and Professor Van Koppen (which evidence was made available to us by video link) and, with the benefit of that evidence, counsel invited us to conclude that the conviction should be regarded as unsafe because it can now be seen that the appellant did not have a fair trial. Although various grounds of appeal are deployed in the amended Grounds of Appeal, and we were asked to permit an amendment to add a further ground, there were in the end only four grounds of appeal argued before us, namely –

(1) The jury should never have heard the expert evidence on which the Crown relied because in law it is inadmissible. If at trial defence counsel had available the expert evidence on which the appellant now relies then, Mr Clegg submits, counsel would have been in a position to obtain from the trial judge, in the absence of the jury, a favourable ruling as to admissibility.

(2) Even if the ruling had not been favourable the availability of the evidence would have enabled defence counsel to cross examine more effectively, and to substantiate by calling expert evidence the points put in cross examination to the experts called on behalf of the Crown.

(3) In the absence of expert evidence for the defence the experts on whom the Crown relied were able to present their evidence in a way which was too favourable to the prosecution case, sometimes known as ‘the prosecutor’s fallacy’.

(4) In any event the judge was wrong to rule as he did in relation to the admissibility of evidence of previous burglaries.

8. In order to deal with the first three grounds of appeal it is necessary to look more closely at the expert evidence – at the evidence given at trial and accurately summarised in the summing up, and at the fresh evidence from the experts on whom the appellant now relies, to which evidence the Crown responded with further evidence from Mr Van Der Lugt and Professor Vanezis. We then have to consider what was done by the appellant’s lawyers prior to trial to equip themselves with the sort of evidence on which the appellant now relies before we can conclude whether to receive the fresh evidence pursuant to section 23 of the Criminal Appeals Act 1968. We can then go on to consider the first three Grounds of Appeal. The fourth Ground of Appeal is not entirely free standing, but it can conveniently be dealt with last.

Expert evidence at Trial.

9. As the judge pointed out to the jury, the expertise of ear print comparison “is in its relative infancy” and not many people have become involved with it. Mr Van Der Lugt’s conclusion was that “he was sure that these ear prints were made by this defendant”. Professor Vanezis considered that conclusion to be “highly likely”. So the judge directed the jury as follows –

“If you are sure that Mr Van Der Lugt’s evidence is correct and you accept it then you would be entitled to convict on his evidence alone. Professor Vanezis gave strong evidence, but was not as positive as Mr Van Lugt, it is for you to evaluate his evidence. If you rejected Mr Van Der Lugt’s evidence but accepted Professor Vanezis’ evidence then it is for you to decide whether on the basis of that evidence alone you could be sure that these were this defendant’s ear prints. ..... I direct you that if you reject Mr Van Der Lugt’s evidence and you reject all the other supporting evidence you should not convict this defendant on Professor Vanezis’s evidence alone.”

The judge reminded the jury that although Mr Van Der Lugt had 27 years service as a police officer in Holland, and lectured at the Dutch Police College, he had no formal qualifications. He had simply become interested in ear print identification and read what was available on that topic. He had built up a portfolio of about 600 photographs and 300 ear prints and from his experience and what he had read he was satisfied that no two ear prints are alike in every particular. Professor Vanezis said the same in relation to ears, but questioned the value of measurements in relation to ear prints, because the ear is made up of relatively soft tissue which will distort and which may be presented at different angles to the hard surface on which the print is made. “Both experts agreed that it would be very useful if further research was done to see whether it were possible for prints from two separate ears to be produced showing apparent similarities .... both experts accept that that might well be a real possibility”. For present purposes it is unnecessary to rehearse Mr Van Der Lugt’s evidence as to the structure of the ear, but he made the point that it is rare for a print to be left by all of the raised parts of the ear, and he said that generally speaking he would look for five or six points when making a comparison, but he emphasised that what mattered was the totality of the evidence which he reviewed by use of overlays, choosing those from the available control prints which appeared to be set at an appropriate angle. Having carried out that exercise in relation to the four overlapping prints left at the scene of the crime in this case by a left ear he was “absolutely convinced that the prints of the defendant’s left ear were identical with the prints of the left ear on the window.” He then saw the original windowpane and found a right ear print, which he compared with the controlled prints of the appellant’s right ear. He found seven points of similarity and two differences, for which he was able to account, so that “strengthened his initial conclusion that it was this defendant who had placed his ears against the window.”

10. Professor Vanezis carried out similar comparisons using overlays, as illustrated on a video film which the jury saw and which we have seen, and the judge summarised his conclusion thus –

“Bearing in mind that we have here a print on the window of a right and left ear to compare against the known prints of the right and left ear of this defendant, there is a remote possibility that the impressions on the window may have been left there by somebody other than the defendant, but his firm opinion was that it was very likely that it was this defendant who made those prints, although he cannot be one hundred percent certain.”

He accepted the desirability of a larger database and of more research to establish standards for comparison, but, as Mr Clegg emphasised to us, despite careful cross-examination neither expert on whom the Crown relied qualified his conclusion in any way.

Fresh Evidence.

11. The evidence on which Mr Clegg based most reliance before us was that of Dr Champod who, with two others, after the trial in this case, wrote an article which was published in the Journal of Forensic Sciences. Before joining the Forensic Science Service he was an assistant professor at the University of Lausanne. He accepts that all ears are different, and, as we understand his evidence, that differences between ears can be discerned, but, as he put it in his report, “a high variability between ears does not imply necessarily that a high variability is expressed in marks left by different persons” and the evidence as to that is limited. Secondly the protocol used by Mr Van Der Lugt and Professor Vanezis, although not unscientific, depends heavily at every stage on subjective comparisons and tolerances (e.g. how much to allow for pressure and distortion). With only a relatively narrow data base to work from the question is raised as to the value to be attributed to a match, and Dr Champod expressed serious reservations as to the way in which Mr Van Der Lugt and Professor Vanezis expressed their conclusions. In his view –

“(1) Because of the paucity of relevant research and because of court decisions in the Netherlands and United States the process of establishing the source of an unknown ear print based on a comparative examination with ear prints from known donors cannot be regarded as ‘generally accepted in the scientific community.’

(2) There is no empirical research, and no peer review to support the conclusion that robust decisions can be founded on comparisons which in turn are critically dependant on the examiner’s judgment in circumstances where there are no criteria for testing that judgment.

(3) In the present case the expert expressions of opinion could be viewed as manifestations of the prosecutor’s fallacy. They should have said no more than that what they found supported to an appropriate degree the conclusion that the marks on the window were made by the defendant’s ear.”

12. In Switzerland ear prints left at the scenes of burglaries have been compared with controlled prints to assist in the early stages of investigation. They can be used to eliminate, but on occasions those believed to have left ear prints have been found to have genuine alibis. In summary Dr Champod’s conclusion seems to be that at the present time ear print comparison can help to narrow the field, and may eliminate, but cannot alone be regarded as a safe basis on which to identify a particular individual as being the person who left one or more prints at the scene of a crime. He points out that neither the Forensic Science Service in the United Kingdom nor the Federal Bureau of Investigation in the United States carries out ear print comparisons.
13. Professor Van Koppen has five standards which he says can be used to test identification evidence, and he is critical of the identification evidence given at trial because in his opinion it did not meet those standards. It did not, for example, explain how different parts of the ear differed as between individuals. He was critical in his report of the assumption that nature does not repeat itself (an assumption which caused Dr Champod no discernible difficulty) and noted the small size of the database available for comparison. His report concludes thus –

“The validity of ear identification is unknown. The research that is necessary to say anything on the validity of ear identification has not been conducted. On top of that the method used by Van Der Lugt and Vanezis is subjective to an extent that they are unable to explain how they came to their judgment that there is a match between the ear mark found at the crime scene and the ear print from the suspect.”

He pointed out that two convictions based on ear identification evidence, one in Holland and one in the United States, had been overturned on appeal.

14. We were not impressed by Professor Van Koppen’s assertion that Mr Van Der Lugt and Professor Vanezis were unable to explain how they came to their judgment, and in cross examination Professor Van Koppen accepted that many if not all of the other criticisms he made were put to and accepted by Mr Van Der Lugt and Professor Vanezis at the trial. They accepted that there were very few people working in the field, and that the comparison work was in its infancy. They further accepted that the assumption that no ears are the same and ear prints are equally distinguishable, so that it is possible to avoid ascribing an ear print to more than one ear is only an assumption based on a limited experience. They also accepted that because a print is two dimensional it does not reflect a three dimensional pliable ear in a way which is consistent and measurable so, perhaps as a consequence, there are no standard criteria to be applied, as there are with fingerprints.
15. The report of Professor Moenssens we consider to add nothing of any value, and we noted that although at an early stage we agreed to admit it pursuant to section 30 of the Criminal Justice Act 1988 it was barely mentioned by counsel thereafter. Professor Moenssens is laudatory of Dr Champod, of whose work he was the peer reviewer, and he draws attention to the lack of formal academic qualifications of Mr Van Der Lugt and Mr Iannarelli (who was a pioneer in the field) in a patronising way which reflects little credit on the writer of the report.
16. For the respondent Mr Robert Smith QC re-called before us Mr Van Der Lugt and Professor Vanezis. Mr Van Der Lugt explained his comparison technique, including the use of unattributed control prints and overlays, and made the point that there is usually, as in this case, a difference between prints made by the right and left ears of any given individual. It is therefore significant that he was able to match both ears. By reference to the photographs and illustrations which were before the jury he identified the parts of the ears which he said had left a mark on the glass at the scene, and pointed out that he had been comparing ear prints since 1987. He has testified world-wide, and has published a book, copies of which we have. He accepted many of the points made by Mr Hatton (and now by Dr Champod and Professor Van Koppen), as to the limitations of ear comparison evidence at the present time, and would like to see more research work undertaken, but he does not consider that those points undermine his conclusion, which he only reached some time after he was first consulted and after additional information had been supplied.
17. Professor Vanezis pointed out that the methodology used by Mr Van Der Lugt, whom he regards as the expert, is grounded in established procedure. Modern technology enables the observer very slowly to wipe off a superimposed image, as can be seen on the video film to which we have already referred, thus enabling an observer to pinpoint similarities and differences. Measurements are of limited value. In the end what matters is the shape and the contour as observed by an experienced observer. Like Mr Van Der Lugt, Professor Vanezis agreed that more research is required, but he saw no reason to qualify the conclusion which he had expressed at the trial.

Reception of fresh evidence.

18. Section 23 of the Criminal Appeal Act 1968, so far as material, provides that –

“(1) For the purposes of this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice –

(c) Receive any evidence which was not adduced in the proceedings from which the appeal lies.

(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to –

(a) Whether the evidence appears to the Court to be capable of belief;

(b) Whether it appears to the Court that the evidence may afford any ground for allowing the appeal;

(c) Whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.”

Clearly the evidence of Dr Champod and Professor Van Koppen satisfies the requirements of section 23(2)(a) and (c), and section 23(2)(b) raises issues to which we turn when we consider the individual grounds of appeal, so we concentrate for the moment on section 23(2)(d). It is clear from the affidavits of counsel who appeared for the appellant at his trial that considerable efforts were made to assemble expert evidence for the defence. Junior counsel contacted Professor Moenssens and others, and concluded that there was at that time no independent expert evidence available to assist the defence. That conclusion was conveyed to leading counsel. In the United States and in Holland ear print comparison evidence given by Mr Van Der Lugt had been received and acted upon, and, having carefully considered the state of English law as to admissibility, Mr Hatton concluded that any attempt to exclude the evidence of Mr Van Der Lugt and Professor Vanezis would fail. He therefore made no such attempt, and, without any expert evidence to assist him, sought by means of cross-examination to expose the limitations of the comparison evidence on which the Crown relied. It was only after the appellant had been convicted that Dr Champod published his article, and that a report was obtained with some difficulty from Professor Moenssens by fresh solicitors acting for the appellant. The report drew attention to the article. It was also after the applicant had been convicted that the first instance decisions in the United States and Holland were reversed on appeal. In those circumstances Mr Clegg submits that there is demonstrated in this case a reasonable explanation for the failure to adduce the evidence of Professor Moenssens, Dr Champod and Professor Van Koppen in the proceedings from which the appeal lies.

19. Mr Smith submits that Mr Hatton was right to conclude as he did in relation to admissibility, and that even if he was wrong the reality is that the evidence now relied upon, or some expert evidence making similar points, could have been obtained by the defence prior to trial. He points out that there was contact with Professor Moenssens, who knew of others who shared his views, and that it is not necessary for an expert to have made ear comparisons himself or herself before the expert can make the sort of criticisms made in cross examination at trial and developed in the fresh evidence. No one suggests that it was for tactical reasons that expert evidence was not adduced by the defence at trial, but Mr Smith submits that this court should be slow to receive fresh evidence when in reality all that is demonstrated is that the defence could have been conducted differently.
20. We were reminded that in Naveed Ullah [2000] 1 Cr App R 351 Rose LJ said at 357 that the ultimate issue for the Court of Appeal is whether the conviction is safe, but he went on to say that ineptitude “is a necessary prerequisite to any challenge to the safety of a conviction based on counsel’s conduct. Put another way, wanting safety in a conviction cannot be based on a decision by counsel merely because other counsel might not have made that decision.” That was cited with approval by Lord Woolf CJ in Martin [2002] 1 Cr App R 323 at 335.
21. In our judgment the evidence laid before us as to the steps taken by defence counsel to prepare for trial, coupled with the developments which have taken place in relation to ear comparison evidence since conviction, constitute a reasonable explanation for the failure to adduce at the trial the expert evidence on which Mr Clegg now wishes to rely. If, in our judgment, that evidence may afford any ground for allowing the appeal then, as it seems to us, it must be necessary or expedient in the interests of justice to receive it. We therefore turn to consider the grounds of appeal in the light of the fresh evidence, bearing in mind the submission made by Mr Smith that the fresh evidence adds nothing because it merely re-iterates points effectively made by Mr Hatton in cross-examination.

Admissibility of Crown’s expert evidence.

22. As we have indicated, Mr Clegg’s first ground of appeal is that in English law the evidence of Mr Van Der Lugt and Professor Vanezis is and should be held to have been inadmissible. He submits that if Mr Hatton had been equipped with the fresh evidence now relied upon he could and would have made that submission to the trial judge, and that his submission should have been accepted.
23. Before we go any further it is worth considering precisely what evidence it is contended should be excluded. It is accepted that there is no basis for excluding evidence of what was found at the scene, including the evidence of the ear prints on the glass. When the appellant was arrested he provided ear prints which, having been anonymised, were put with other prints and compared with the prints found at the scene. It is difficult to see on what basis it would be possible to exclude the evidence of those steps having been taken as part of the investigatory process, or the evidence of the conclusion reached by the examiner. What matters, as it seems to us, is the value of the conclusion. In Robb (1991) 93 Cr App R 161 a phonetician had identified the appellant’s voice using an auditory technique which was regarded by orthodox professional opinion as unreliable unless supplemented and verified by acoustic analysis, but this court refused to hold that the expert evidence was inadmissible. Having referred to Silverlock [1894] 2 QB 766 Bingham LJ said at 165 that the two essential questions are whether study and experience will give a witness’s opinion an authority which the opinion of one not so qualified will lack, and (if so) whether the witness in question is skilled and has adequate knowledge. He continued –

“If these conditions are met the evidence of the witness is in law admissible, although the weight to be attached to his opinion must of course be assessed by the tribunal of fact.”

24. The principled approach to admissibility set out in Robb is not in any way affected by the fact that, as indicated in the recent Northern Ireland case of O’Doherty (19^th April 2002 reference NICB 3173), technology has moved on, so that at least in Northern Ireland the expert’s technique relied upon in Robb would no longer be regarded as adequate.
25. In Stockwell (1993) 97 Cr App R 260 a facial mapping expert was called to assist the jury as to whether the defendant’s face appeared on video films taken during two separate incidents, a robbery and an attempted robbery. Lord Taylor CJ referred to what had been said about expert evidence in Turner (1975) 60 Cr App R 80, and continued that where there may have been a disguise a comparison of photograph and defendant may not be straightforward. The same could be said of a comparison of ear prints. Lord Taylor said at 264 –

“In such circumstances we can see no reason why expert evidence, if it can provide the jury with information and assistance they would otherwise lack, should not be given. In each case it must be for the judge to decide whether the issue is one on which the jury could be assisted by expert evidence, and whether the expert tendered has the expertise to provide such evidence.”

Facial mapping was a relatively new technique, and this court agreed with the trial judge that “one should not set one’s face against fresh developments, provided that they have a proper foundation.”

26. In Strudwick and Merry (1994) 99 Cr App R 326 a mother and her co-habitee were convicted of manslaughter and cruelty, the victim being a young child. The trial judge had excluded psychological evidence which counsel for the female defendant wanted to adduce, and this court held that he was right to do so because the evidence was not likely to afford to the jury the kind of help without which they would be unable to do justice in her case.
27. Clarke [1995] 2 Cr App R 425 was another case concerned with facial mapping. By means of video superimposition a bank photograph of the defendant was compared with photographs taken at the scene of a robbery. This court upheld the decision of the trial judge that the evidence was admissible. At 429 Steyn LJ said –

“It is essential that our criminal justice system should take into account modern methods of crime detection. It is no surprise, therefore, that tape recordings, photographs and films are regularly placed before juries. Sometimes that is done without expert evidence, but, of course, if that real evidence is not sufficiently intelligible to the jury without expert evidence, it has always been accepted that it is possible to place before the jury the opinion of an expert in order to assist them in their interpretation of the real evidence. The leading case on that point is Turner (1975) 60 Cr App R 80, [1975] Q.B. 834. We would add this. There are no closed categories where such evidence may be placed before a jury. It would be entirely wrong to deny to the law of evidence the advantages to be gained from new techniques and new advances in science.”

Reference was then made to Stockwell and Steyn LJ went on to say –

“We are far from saying that such evidence may not be flawed. It is, of course, essential that expert evidence, going to issues of identity, should be carefully scrutinised. Such evidence could be flawed. It could be flawed just as much as the evidence of a fingerprint expert could be flawed. But it does not seem to us that there is any objection in principle.”

Counsel for the appellant had contended that expert evidence was not necessary and ought not to have been admitted because the jurors could see for themselves the photographs as partly enhanced on the video. The court rejected that submission, saying at 431 –

“This is clearly a case like Stockwell where the comparison was not an entirely straight forward one.”

It added –

“The probative value of such evidence depends on the reliability of the scientific technique (and that is a matter of fact), and it is one fit for debate and for exploration in evidence.”

The court then turned to the second ground of appeal which asserted that the evidence should have been excluded because the technique was “too dangerous”. That had been explored at a voire dire during which the trial judge heard expert evidence and concluded that the evidence did have probative value.

28. That brings us to Gilfoyle (No 2) [2001] 2 Cr App R 57 on which Mr Clegg places some reliance. The appellant in that case was convicted of the murder of his pregnant wife, and on a reference by the Criminal Cases Review Commission this court agreed with the trial judge’s decision not to admit evidence from a psychologist as to the deceased’s state of mind. Six reasons were given for that conclusion, the fifth of which was that there is English, Canadian and United States authority which points against the admission of such evidence. Having referred to some authorities in all three jurisdictions Rose LJ said at 68 –

“The guiding principle in the United States appears to be (as stated in Frye v United States 293F.1013 (1923) that evidence based on a developing new brand of science or medicine is not admissible until accepted by the scientific community as being able to provide accurate and reliable opinion. This accords with the English approach as reflected in Strudwick and Merry (1993) 99 Cr App R 326.”

29. It is clear from Daubet 509 US 579 (1993), to which it seems that this court in Gilfoyle was only indirectly referred, that Frye does not represent the guiding principle in the United States. It was superseded by the adoption of the Federal Rules of Evidence which do not require that a scientific technique be regarded as inadmissible unless the technique is generally accepted as reliable in the relevant scientific community. Rule 702 provides –

“If scientific, technical or other specialised knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

As to the English approach we have found it necessary to refer not only to Strudwick and Merry but also to a number of other decisions, especially Clarke, from which, as it seems to us, the analogy with Rule 702 is clear. As is said in the current ninth edition of Cross and Tapper on Evidence at 523 after a reference to Frye –

“The better, and now more widely accepted, view is that so long as the field is sufficiently well-established to pass the ordinary tests of relevance and reliability, then no enhanced test of admissibility should be applied, but the weight of the evidence should be established by the same adversarial forensic techniques applicable elsewhere.”

We are satisfied that if a submission had been made to the trial judge that the expert evidence upon which the Crown proposed to rely was inadmissible, and if that evidence had been deployed on a voire dire, whether with or without expert evidence called on behalf of the defence, the trial judge could not possibly have concluded that the Crown’s expert evidence was irrelevant, or so unreliable that it should be excluded. Accordingly in our judgment the first ground of appeal fails.

Grounds 2 and 3.

30. We come now to what we regard as the more difficult question of whether the jury was properly equipped to assess the weight to be attached to the findings of Mr Van Der Lugt and Professor Vanezis, and in that context it is convenient to look first at the criticism of the way in which they expressed their conclusions.
31. In Doheny and Adams [1997] 1 Cr App R 369 this court set out procedures which should be adopted when DNA evidence is involved, and at 373 C Phillips LJ said that –

“The prosecutor’s fallacy can be simply demonstrated. If one person in a million has a DNA profile which matches that obtained from the crime stain, then the suspect will be one of perhaps 26 men in the United kingdom who share that characteristic. If no fact is known about the defendant, other than that he was in the United Kingdom at the time of the crime, the DNA evidence tells us no more than that there is a statistical probability that he was the criminal of one in 26.”

At 373 F Phillips LJ continued –

“The reality is that, provided that there is no reason to doubt either the matching data or the statistical conclusion based upon it, the random occurrence ratio deduced from the DNA evidence, when combined with sufficient additional evidence to give it significance, is highly probative. As the art of analysis progresses, it is likely to become more so, and the stage may be reached when the match will be so comprehensive that it will be possible to construct a DNA profile that is unique and which proves the guilt of the defendant without any other evidence. So far as we are aware that stage has not yet been reached.”

At 374 D Phillips LJ said –

“When the scientist gives evidence it is important that he should not over step the line which separates his province from that of the jury.

He will properly explain to the jury the nature of the match (‘the matching DNA characteristics’) between the DNA in the crime stain and the DNA in the blood sample taken from the defendant. He will properly, on the basis of empirical statistical data, give the jury the random occurrence ratio – the frequency with which the matching DNA characteristics are likely to be found in the population at large. Provided that he has the necessary data, and the statistical expertise, it may be appropriate for him then to say how many people with the matching characteristics are likely to be found in the United Kingdom – or perhaps in a more limited relevant sub-group, such as, for instance, the caucasian sexually active males in the Manchester area.

This will often be the limit of the evidence which he can properly and usefully give. It will then be for the jury to decide, having regard to all the relevant evidence, whether they are sure that it was the defendant who left the crime stain, or whether it is possible that it was left by some one else with the same matching DNA characteristics.

The scientist should not be asked his opinion on the likelihood that it was the defendant who left the crime stain, nor when giving evidence should he use terminology which may lead the jury to believe that he is expressing such an opinion.”

32. Mr Clegg submits that in the present case Mr Van Der Lugt and Professor Vanezis did over step the line, when giving the evidence to which we have already referred. Mr Van Der Lugt said that when comparing control print 1061 with the print left at the scene he found them to be the same except for differences that he could account for, then the judge asked –

“Q. Then was the unknown print and the known print made by the same ear or different ears, so that I am absolutely clear?

A. They were made by the same ear.

Q. And how convinced are you of that?

A. I am absolutely convinced that they are from the same donor.”

Later the witness said –

“In my opinion the unknown prints found at Miss Wood’s home are from donor 1061 which is the defendant in this case. So he produced those left and right ear prints on the window.”

33. Professor Vanezis was a little less emphatic. He said –

“My conclusion was that it was the closest match for the overall fit of the prints. That is both left and right. That is 1061.”

In cross-examination he said –

“All I can say is that bearing in mind that we have left and right ear prints and with the paucity of knowledge etc, I am prepared to go so far as to say that there is a remote possibility .... that they may have been left by some one else, but it is remote. .... I am of the firm opinion that it is very likely to be the same person, but I cannot be 100% positive.”

34. As Mr Smith points out, the firm views expressed by the witnesses have to be read in context. Both experts accepted that they were working on the assumption that any questioned ear print of adequate quality can only be ascribed to one ear and that each ear and each ear print is discernibly different, an assumption supported by relatively limited information. Also, as any juror can appreciate, comparisons such as were made in this case cannot be expressed in terms of statistical probability. On the basis that his assumptions are correct the expert has made his comparison and has been unable to find any difference between the control print and the questioned prints other than differences for which he can account. His conclusion is obvious, and so as to eliminate any possibility of error it seems better for it to be expressed. So, in our judgment, there is no reason in this case to be critical of the way in which the evidence of the experts was adduced, and there is no substance in ground 3, but the very strength of the Crown’s expert evidence is what causes us concern. In Pendleton [2002] 1 WLR 72 the House of Lords considered the test to be applied by this court when fresh evidence is heard, and at 83 Lord Bingham said –

“It will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe.”

In order to apply that test we are prepared to assume that the evidence of other burglaries was rightly admitted, thus enabling the prosecution to point to the unlikelihood of an erroneous “blind” identification by Mr Van Der Lugt and Professor Vanezis having selected a man who –

(1) lived not far from the scene of the crime:

(2) habitually used the means of entry used by the criminal – listening at the door or window and then forcing open a small and sometimes relatively inaccessible transom window with a chisel or screwdriver so as to enable him with a degree of athleticism to wriggle through:

(3) When in custody, if X is to be believed, accepted that he had something to do with the relevant crime, and referred to features (such as the use of a pillow, and the presence of a white fence) which were not widely known.

Even so it seems to us that the fresh evidence, if given at the trial, might reasonably have affected the approach of the trial jury to the crucial identification evidence of the experts and thus have affected the decision of the jury to convict. Mr Smith said at one point that all that was missing was the potential impact on the jury of hearing the defence experts live. That is right, but the omission was significant. As we have observed, the jury was directed that they could convict on the evidence of Mr Van Der Lugt alone. It follows that the fresh evidence does afford a ground for allowing the appeal, it is necessary and expedient in the interests of justice that we receive that evidence, and having received it we must find the conviction to be unsafe.

Ground 4 and conclusion.

35. In the light of our conclusion in relation to ground 2 it is unnecessary and undesirable for us to express any reasoned conclusions in relation to ground 4. Suffice to say that we were not persuaded that the trial judge erred, but the issue of the admissibility of evidence of other burglaries will have to be re-assessed in the context of the retrial that we propose to order.
36. We therefore quash the conviction. We are satisfied that the interests of justice require that there be a retrial, indeed Mr Clegg does not argue otherwise, so we order that there be a retrial at Leeds or such other venue as a Presiding Judge of the North Eastern Circuit may direct on an indictment to be preferred within two months of todays date. Meanwhile the appellant, or the defendant as he now is, will remain in custody. If, as we expect, the appellant wishes to have legal representation for the purposes of the retrial, and is in no position to pay for it, we would grant legal aid for a solicitor and for one leading and one junior counsel.