England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE STEWART QC
T20029254

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/12/2010

Lord Justice Hughes :

1. This case has been referred to us by the Criminal Cases Review Commission. The basis for doing so is justified concern about the standing of one of the pathologists who gave evidence at the trial in October 2003. He was Dr Michael Heath. Subsequently, at a disciplinary hearing in the Summer of 2006, Dr Heath faced charges relating to his reports in two cases, named Fraser and Puaca. The complaints about those cases had been laid by other distinguished forensic pathologists in July 2002 and February 2003. At the disciplinary hearing Dr Heath was found to have given unreliable and over-dogmatic evidence as a forensic pathologist in both those cases. The tribunal found that he had unreasonably deduced conclusions from evidence, either at post mortem or at the scene of the death, which whilst it could support his conclusions did not enable other possibilities to be excluded. He had persisted in his conclusions without any proper regard for the contrary and reasoned opinions of several other pathologists. The tribunal tellingly described his evidence in Puaca as:

"…vigorously advancing forensic pathological conclusions based on an unacceptable level of speculation without evidential foundation and demonstrating a degree of inflexibility when confronted with reasoned contrary opinions by colleagues which might be dangerous to the objective presentation of expert testimony."

Dr Heath was also found to have been at fault in the conduct of both post mortems, because he had not preserved samples for subsequent histological analysis if necessary; that failure had had the effect of hampering subsequent checks on the accuracy of his conclusions. The complaint was not of lack of honesty or integrity, but the findings mean that his reliability on those occasions examined fell well short of what has to be expected of any expert witness, and specifically of a Home Office Approved Pathologist. In both the cases under investigation, the issue was whether the cause of death was assault or an innocent cause. In one he said smothering, whereas others showed that the possibility of drug overdose and fit could not be excluded. In the other case he said assault with a sharp-edged instrument, whereas others showed that the possibility of injury falling down stairs could not be excluded.

2. This court has had to consider the consequences of deficiencies on the part of Dr Heath in 4 cases. The first was Puaca itself, in which the conviction was quashed on a basis of conclusions about his evidence very similar to those subsequently arrived at by the Disciplinary Hearing. This court found that in that case Dr Heath had:

(a) originally expressed his conclusions without drawing attention to factors which might point in another direction, thus failing to honour the essential duty of objectivity required of an expert;

(b) given evidence of conclusions which he subsequently accepted were not justified, and which he withdrew; in particular, and very strikingly, he had given evidence of the suggested significance of certain findings as supporting his conclusion of asphyxia, when he conceded late in his evidence that they were equally consistent with the alternative, and innocent, conclusion of drug overdose;

(c) introduced into his evidence potentially prejudicial information, which he then withdrew; in particular he had referred to the presence of urine staining and added as a generalised observation that one saw that principally when the deceased had been in fear of something, but subsequently accepted not only that she had been using diuretics but that he drew no conclusions at all from the incontinence at the time of death.

3. A similar conclusion that the conviction was unsafe in the light of flawed evidence on a crucial topic by Dr Heath was reached in Boreman & others [2006] EWCA Crim 2265 and in Laverick [2007] EWCA Crim 1750. In Boreman there were a number of reasons why the conviction was unsafe. One was that Dr Heath's evidence on a vital topic had been undermined. Another was that the jury had been left to consider a route to verdict which the Crown now conceded was not open to it. In Laverick the evidence of Dr Heath amounted to a vigorous assertion that the fatal blow with a knife must have been a deliberate, powerful blow when there was no movement between the two men confronting each other, rather than a moderate impact consistent with possible accident. True it was that the judge had directed the jury that they might well decide that the only safe conclusion was the alternative view of the blow advanced by the other pathologist, Dr Cary, but still the court was satisfied that the manner in which Dr Heath gave his evidence was on that occasion so forceful that the jury may not have exercised the caution which the judge advised.
4. That said, it does not follow that every conviction arising in a case in which Dr Heath appeared is unsafe. Sir Igor Judge P (as he then was) went out of his way to make this clear O'Leary [2006] EWCA Crim 3222, in a case in which the Crown conceded that the conviction was unsafe:

"11.We want to make it as clear as we can….that it does not necessarily follow from these criticisms that every case resulting in a conviction in which Dr Heath gave evidence for the Crown should or will be treated as unsafe. We expect the Crown to do what the Crown has done here, which is to analyse the precise nature and importance of Dr Heath's evidence to the conviction in the light of the particular circumstances of the individual case and the issues which arose at trial.

12. Even if Dr Heath's evidence was challenged at trial, it does not follow that the convictions will all be unsafe. Some will remain safe, even if his evidence lent support to the Crown's case. Some of course, and this is one, will not."

That was a case where the conviction was unsafe because Dr Heath had purported to draw conclusions about whether the admitted fatal blow was or was not struck in self defence, when such conclusions were unjustified.

5. Ahmed was convicted by the jury of the murder of a man going by the name of Hasani. Ahmed lived near Barking and was the owner of a small factory in the clothing trade about a mile and a half away. He had a sixteen year old daughter. The deceased was the girl's boyfriend. He was an Albanian asylum seeker of 22. The defendant Ahmed plainly disapproved strongly of Hasani and of the relationship. The young couple ran away together twice during October 2002. On the second occasion they had departed together to Bournemouth, where they had gone so far as to make enquiries about work, housing benefit, immigration legal advice, and marriage. They were, however, found there by a member of Ahmed's family, and persuaded to return, which they did on Thursday 7^th November 2002. On their return, the girl was brought back to live at the family home. The defendant appeared to be conciliatory and offered Hasani work in his factory. Hasani began work there on Monday 11^th November. But, as the evidence eventually proved, by the night of Friday/Saturday 15/16 November, at the end of that same week, he had met his death in the factory.
6. Hasani's body was found near Stratford, East London, at about 1100 on the morning of Sunday 17^th November. It was trussed up in a tarpaulin and had plainly been brought there and dumped. There was never any dispute amongst the three forensic pathologists who considered the case that he had been asphyxiated by obstruction of his upper airway.
7. The police made preliminary enquiries of Ahmed, amongst others, soon after the body was found. He made a witness statement on the following Wednesday (20 November). He said that he had no idea how Hasani had met his death. He made no mention of Hasani having worked for him, and he said that he had not seen him on Friday 15^th. The fact that Hasani had worked for the week in question at the defendant's factory was not then known to the police, and it later became clear that the defendant had gone to some lengths to prevent them from finding out. He told his various workers at the factory not to tell anyone that Hasani had ever been there, and for a while they obeyed his instruction. Just over a fortnight after the weekend of Hasani's death, Ahmed was arrested and interviewed on 4 December. Beyond saying that his original witness statement was true, he declined to answer any questions.
8. Ahmed had still said nothing at all to anyone in authority about Hasani's death when the case reached the Plea and Directions Hearing in the Crown Court on 18 July 2003. By now it was eight months since the death and the trial was about 2 months away. By now the Crown evidence had been served on Ahmed, no doubt some little time beforehand, and his solicitors had obtained for him a second, independent report of a forensic pathologist, Dr Borek. By now, the evidence was known to show:

(1) that Hasani had died by asphyxia;

(2) that he had been working at the factory that week, and had been there with the defendant on Friday 15 November at sometime around 7 pm or a little later, when another worker had left;

(3) that he appeared to have met his death at the factory, because fibres on his clothing, and cloth ties by which his feet were bound together, matched material at the factory;

(4) that Ahmed's van was seen repeatedly on CCTV on Saturday night, near the place at which the body was dumped;

(5) that the body had been in this van, because Hasani's blood was found in it;

(6) that Ahmed had persuaded his staff at the factory to lie for him, and to say that Hasani had not been there; and

(7) that both before the week of 11 November, and during it, Ahmed had, far from being conciliatory towards Hasani, plainly demonstrated his hostility towards him; he had threatened that he would kill him and had spoken of teaching him a lesson; thus he had both motive and inclination.

9. In the face of that evidence, Ahmed produced for the first and last time an account of events. He tendered a plea of guilty to manslaughter and accompanied it by a written basis of plea. The basis of plea document was not the conventional short statement of the legal basis of plea, for example: lack of intent, provocation or so on. It was a substantial narrative consisting of 40 paragraphs beginning at the start of October. In effect it was his proof of evidence, or would have been had he entered the witness box. But he gave no evidence, and nothing in the document was ever supported by any sworn evidence at all. This was a tactic within the law. But the document resembled nothing more than the long outlawed unsworn statement from the dock.
10. The account given in this document was this. During the week, Ahmed had advanced Hasani money on account of his wages, but Hasani wanted more. This generated an argument on the evening of Friday 15^th. In the course of the argument Hasani kicked out at Ahmed and in return Ahmed kicked Hasani in the groin. Ahmed then punched Hasani twice in the face. These blows knocked Hasani down and as he fell he struck his head on a workbench and lay initially motionless on the floor before recovering, moving and speaking. To teach him a lesson, Ahmed tied his ankles and his hands together, the latter behind his back, using electrical flex. He also gagged him with a strip of cloth. He left him overnight in the storeroom, thus bound, as a lesson. When he came back on Saturday morning, he found the lifeless body of Hasani, not where he had left it, but near the door. He had polythene over his face. He must have rolled into the polythene-covered clothing which hung on rails along the side of the factory. Ahmed then panicked and disposed of the body.
11. At the trial, the Crown elected to put this document into evidence and the pathologists were invited to express their views as to whether the pathology was or was not consistent with this account of events. We recognise that that may well have been the only realistic approach, particularly since no one knew whether the defendant might give evidence in accordance with it. We are not in any way critical of the way it was treated, which meant that the document represented some limited evidence of its contents, albeit unsworn and untested. The question of what the status of this essentially self-serving document would have been if not adduced in this manner is therefore not before us and we say nothing about it.
12. The judge put the issue to the jury in a helpfully concise and focussed way:

"7. The Crown's case is that Ahmed planned and carried out the murder – that Ahmed's plan was to kill Hasani in order to prevent his association with Sadhia, Ahmed's daughter – that Hasani was bound in such a way that he could not resist – that polythene or some such material was deliberately applied to his upper airway, so that he could not breathe, and he died of asphyxia between 7 and 8 pm on Friday 15 November 2002.

8. Ahmed's defence is that Hasani was tied up on the Friday night having been rendered dazed or semi-conscious in a fall – that he was left overnight tied up and gagged but alive in order to teach him a lesson – and that at some time during the night he moved across the floor and became asphyxiated by polythene into which he rolled causing his death."

13. Dr Heath had conducted the post mortem. Accordingly he gave evidence first. By the time the trial was pending, it was known that he faced the disciplinary enquiry. That fact was disclosed to the defence, and the Crown instructed, unusually, a second pathologist, Dr Shorrock, for precisely this reason. Thus the jury heard from three pathologists in all, Dr Heath and Dr Shorrock called by the Crown and Dr Borek called on behalf of the defendant.
14. The gravamen of this appeal is that in the course of his evidence Dr Heath expressed the view that the pathology was not consistent with the account proffered by the defendant in his written basis of plea document. We accept that he did. The question for us is whether, in all the circumstances, the subsequent findings at Dr Heath's disciplinary hearing not only put his own evidence in this case in doubt, but also render the conviction of the defendant unsafe. That involves an assessment of the significance of the pathology evidence in this case.
15. Unlike other cases in which the evidence of Dr Heath has since been considered, there was no dispute about the cause of death. It is, however, true that there were some differences of opinion between the pathologists. We should examine them seriatim.
16. First, Dr Heath had found no visible injury in the groin whereas Dr Borek, on performing a second post mortem some time afterwards, had found what dissection led her to describe as a very insignificant small bruise. The existence of the bruise might be consistent with the kick to the groin mentioned by Ahmed in the basis of plea document. On one view the fact that Dr Borek had noted such a bruise before the basis of plea document was put forward may tend to support the contention that Ahmed had very carefully tailored the document to the evidence as it was by then known. But whether that is so or not, the absence of the bruise would not go to show that there was no kick, nor did Dr Heath suggest that it did. His evidence that he saw no bruise was entirely neutral on the veracity of the basis of plea. Nor has the kick, if it happened, anything to do with the mechanics of death, or with the difference between murder and manslaughter.
17. Second, the pathologists gave slightly differing opinions about whether the deceased might have fallen and struck his head, as asserted in the basis of plea. There was some bruising under the skin in the region of the forehead and left temple. Dr Borek thought it was consistent with trauma. Dr Heath believed that what he had seen were petechial haemorrhages which had coalesced into a larger area of bruising, and thus that they were connected with asphyxiation rather than a bang on the head. Dr Shorrock did not address exactly what form the bruising took, because he said that petechiae, if that is what they were, either in this position or elsewhere, were not necessarily the product of asphyxiation and might have developed after death; he made it clear that in his view no conclusions could safely be drawn from them, and Dr Borek agreed. But what Dr Shorrock did say was that because there was no external injury at all, he did not think it likely that any bang to the head would have been severe enough to have caused Hasani to lie motionless, apparently semi-conscious. Dr Borek, for her part, whilst she said that the temple/forehead condition could (but not must) have been caused by a bang on the head, effectively had to agree that it would not have been a severe one. The furthest that she would go was to say that there may have been a blow sufficient to make Hasani 'feel slightly dazed'. In one of her reports she had made it clear that it was not possible from the appearance of the injury to say whether or not the deceased could have been rendered unconscious as a result of any impact. Thus the only significance of Dr Heath's evidence on this point was to reinforce the conclusion that there had been asphyxia, but that was not in any way in dispute. It was Dr Shorrock who cast some doubt on the veracity of the basis of plea account of Hasani falling and lying motionless.
18. Thirdly, there were limited differences of opinion as to the conclusions which could or could not be drawn about the manner in which the deceased had been tied up. Dr Heath did advance the conclusion that he saw no evidence of his having been "hog-tied" with feet and ankles connected by ligature behind the back, but nor did anyone else see such evidence. Dr Heath thought that Hasani had been tied with his right arm across the front of his trunk, anchored by a ligature to the left elbow and with the left arm across his back, anchored to the right elbow. That derived from arm-size bands of blanching angled across the back and front, coupled with signs that at some stage there may have been a binding on the arms. We think it is probable that this theory, together with the absence of positive evidence of hog-tying, was one of the reasons why Dr Heath contended, generally, that the basis of plea account did not fit the findings. But the importance of this theory in the case can easily be overstated.

i) The basis of plea does not clearly say that the deceased was hog-tied, although this possibility was explored in evidence. It merely says that the hands and ankles were tied together. That leaves open whether the hands were also tied to the ankles. The uncertainty was recognised in counsel's questions put to Dr Heath. No one could ask Ahmed which he meant, since he did not give evidence.

ii) It must have been clear that an absence of evidence supporting hog-tying was not the same as evidence that this had not, at some stage, been done.

iii) There was ample evidence, not disputed by any of the pathologists, that there were pressure marks on the wrists and forearms which might have been caused by being tied. It was also common ground that the legs had been tied even when the body was dumped, and that pressure marks found there could be the result of this tying, which might or might not have dated from Friday night, but also might have occurred only when the body was moved.

iv) It was clear that there was no way of knowing what had happened to the body, and what position it might have been in, even on the basis of the plea account, between the time when it was said that Ahmed had discovered that Hasani was dead on Saturday morning, and the time when he dumped the body in Stratford on Saturday evening or night.

v) Dr Shorrock readily agreed that the band of blanching across the front of the trunk, such as the right arm would leave, showed that at some stage the body had lain on its front with the right arm underneath the trunk, though when he could not say. Dr Borek agreed that Dr Heath's theory was one possible explanation of the blanching.

We think it follows that Dr Heath's theory of the exact manner in which the hands were tied was not compelling. It fitted the findings, and it might have been true that the arms were anchored in this position at some stage but equally the arms might have been positioned across the front and/or back without being tied. But even at its highest, the theory could not demonstrate that the basis of plea account was therefore wrong, because the wrists could at some stage have been tied behind the back. Dr Heath said no more than that he found no evidence of the hands being thus tied, which is not at all the same as him saying that it could not have happened. Similarly he said that the pressure marks he found on the wrists and forearms were not such as would be left by ordinary thin electrical flex, but could be consistent with larger-dimension cable: once again he was cautious and did not purport to say that the findings necessarily refuted the basis of plea.

19. It was not, therefore, these differences of opinion which bore significantly on the question whether the basis of plea could be correct. The evidence which got closest to this was Dr Heath's view of the suggestion that Hasani must have rolled into polythene. He was relatively cautious in his response to this possibility. He said that he did not see the pattern of blanching across the face and neck as being consistent with that possibility, and he thought that if one rolled into polythene one would resist and move away. "That", he said, "is really as far as I can go." In this, both Dr Shorrock and Dr Borek were plain in their disagreement. Both said that there was nothing in the pathology findings which by themselves disproved this manner of death occurring. Dr Shorrock went on to explain that if a person is gagged, the airway can relatively easily be obstructed. There was no doubt evidence that Hasani could have been gagged, because there were marks behind the ears and bruising inside the lip which were plainly consistent with it. Dr Borek suggested the possibility of a sudden reflex inhibition, similarly leading to sudden death. Thus the evidence of Dr Shorrock and Dr Borek made clear to the jury their disagreement with the evidence of Dr Heath, even relatively cautiously expressed, on the crucial question of the manner of asphyxiation and death. Both those pathologists, one called by the Crown, told the jury in the clearest terms that in their view there was nothing in the pathological findings which by themselves showed that the account given in the basis of plea document could not be true.
20. Mr Ali invites us to say that Dr Heath gave his evidence forcefully. That expression may be borrowed from other cases where that description was applied to his manner. We did not of course see him. We think that we should accept that because that description has been applied to his manner in one or two other cases it might apply to this. But we see little evidence of it on the transcript and Mr Ali, who was not at the trial either, has not demonstrated any. It is rather more likely that Dr Heath's evidence will have been at least to some extent tempered in manner by the presence of Dr Shorrock, transparently called for the purpose of providing an independent second opinion, not to mention by the pending disciplinary proceedings.
21. Mr Ali also points to two questions asked by the jury during Dr Heath's evidence as suggesting that it attached particular significance to what he said. We do not think that the questions are capable of supporting that conclusion. The first question was produced at the start of Dr Heath's cross examination and asked:

"Could the deceased have been winded or in shock after he fell near the workbench ?"

This question had nothing to do with anything Dr Heath had said. It was a classic novel enquiry generated within the jury, whether by one member or more. All Dr Heath said about it, when asked to respond, was that you would have to hit your abdomen, not your head, to be winded, and that you might, if shocked in lay (as distinct from medical) terms, sit down to take stock. There was no further investigation of this note. It was plainly asked at the stage it was not because Dr Heath was especially relied upon, but simply because he was the first medical witness. The enquiry led nowhere. The second question was about bruising on the lower lip. This was common ground amongst the doctors and Dr Heath's answer, to the effect that it was consistent with a gag being applied as well as with polythene or similar material being pressed on the face, was entirely neutral, and was evidence with which it is apparent everyone else agreed. There were also, we observe, two jury questions asked during Dr Borek's evidence, although again neither really advanced the case.

22. Next, Mr Ali contends that the summing up concentrated unnecessarily on the evidence of Dr Heath. Since the doubts about Dr Heath had not been put into evidence, it appears that the judge simply followed the conventional route of recounting in some detail the evidence of the first pathologist and then identifying the points on which any other of the pathologists disagreed. We are unable to detect any unfairness in this manner of summing up. Importantly, the judge made it absolutely clear to the jury that both Dr Shorrock and Dr Borek disagreed with the proposition that the pathological findings militated against the version of events set out in the basis of plea.
23. This is not a case in which the pathological evidence lay at the heart of the issue for the jury. The issue for the jury was whether the account advanced in the basis of plea document could be accepted as a possible one, given (a) the fact that Ahmed had chosen not to support it by sworn evidence which could be tested (b) it was a late-devised account transparently tailored to the undisputable evidence and most of all (c) it was an account directly shown to be false by the unchallenged telephone evidence, which demonstrated that the defendant went back to the factory at 2131, when his basis of plea account said that he left at 2000 and did not go back until the following morning. That was a damning piece of evidence for which there was no hint of any explanation. If there existed an honest explanation, the defendant had only to give it. It was, we are satisfied, this, together with the absence of any evidence given to support the unsworn account, not any evidence of Dr Heath's, that destroyed the possibility that the basis of plea account might be true.
24. Although it is not critical to the outcome in this appeal, we do not in any event agree with Mr Ali's submission that it is sufficient to render a conviction unsafe that there now exists material which the jury did not have and which might have affected their decision. The responsibility for deciding whether fresh material renders a conviction unsafe is laid inescapably on this court, which must make up its own mind. Of course it must consider the nature of the issue before the jury and such information as it can gather as to the reasoning process through which the jury will have been passing. It is likely to ask itself by way of check what impact the fresh material might have had on the jury. But in most cases of arguably relevant fresh evidence it will be impossible to be 100% sure that it might not possibly have had some impact on the jury's deliberations, since ex hypoethesi the jury has not seen the fresh material. The question which matters is whether the fresh material causes this court to doubt the safety of the verdict of guilty. We have had the advantage of seeing the analysis of Pendleton [2001] UKHL 66; [2002] 1 Cr App R 34 and Dial [2005] UKPC 4; [2005] 1 WLR 1660 made recently by this court in Burridge [2010] EWCA Crim 2847 (see paragraphs 99 – 101) and we entirely agree with it. Where fresh evidence is under consideration the primary question "is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury." (Dial). Both in Stafford v DPP [1974] AC 878 at 906 and in Pendleton the House of Lords rejected the proposition that the jury impact test was determinative, explaining that it was only a mechanism in a difficult case for the Court of Appeal to "test its view" as to the safety of a conviction. Lord Bingham, who gave the leading speech in Pendleton, was a party to Dial.
25. In this case the information about Dr Heath, deeply concerning though it must be to anyone connected with the administration of criminal justice, does not cause us to fear for the safety of this conviction. We understand why the CCRC referred the case. The review which we have conducted was necessary. But our conclusion is clear. This conviction is safe. The appeal is accordingly dismissed.