Experts,who needs them? Judicial inconsistency in instruction,admission and interpretation of forensic expertise

Introduction

The Appeal Court in R v Turner [1975] QB 834, 841 ³ ruled that expert evidence ‘is admissible to furnish the court with … information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary’.

The role of the expert can be critical in providing clarity and independent analysis on almost any given topic during a criminal trial, but the admission of this evidence and the weight subsequently given to it can become problematic.

In this paper, we describe a number of high-profile miscarriages of justice where expert forensic opinion significantly influenced the outcome of the trial which led to a wrongful conviction. Conversely, we also note instances where experts were able to identify new evidence which led to that conviction being quashed and, in one instance, the true offender identified.

Case study 1: Sally Clark, convicted in 1999

Sally Clark's conviction of murdering her two infant sons was in large part based on the evidence provided by paediatrician Professor Sir Roy Meadow. He argued that, on the basis of the babies having had a triad of injuries – subdural haemorrhages, retinal haemorrhage and encephalopathy ⁴ – the cause of death was Shaken Baby Syndrome (SBS).

Professor Meadow told the court that the probability of having two infants die naturally of cot death in one family was ‘1 in 73 million’. Whilst he was not a qualified statistician, this striking calculation from an eminent medical expert bore considerable weight both inside and outside the courtroom.

The claim was later dismissed in a statement from the Royal Statistical Society as having ‘no statistical basis. Its use cannot reasonably be justified as a “ballpark” figure because the error involved is likely to be very large, and in one particular direction. The true frequency of families with two cases of SIDS [Sudden Infant Death Syndrome] may be very much less incriminating than the figure presented to the jury at trial’. ⁵

But the damage was done: Sally Clark was convicted of murder and sentenced to life in prison. In 2003, her case was referred back to the Court of Appeal Criminal Division (CACD) by the Criminal Cases Review Commission (CCRC) after significant issues around disclosure were identified.

Disclosure, as described by the Crown Prosecution Service, is ‘a vital part of every investigation and the preparation of every case for prosecution and trial’. ⁶ The defence is, or ought to be, provided with copies or access to a material capable of undermining the prosecution case and/or assisting the defence.

During Mrs Clark's trial, a question was raised by a member of the jury on whether any relevant blood tests had been carried out on the second child. They were told that no such tests were undertaken.

However, the CCRC investigation found that Home Office pathologist Dr Alan Williams had carried out microbiology and biochemistry tests ⁷ that showed Staphylococcus aureus bacteria on eight sites of the baby's body. ⁸ This had not been disclosed in the post-mortem report to the coroner, which stated there was no evidence of disease.

Sally Clark's conviction was quashed and she was freed.

Professor Sir Roy Meadow was struck off by the General Medical Council in 2005, although subsequently reinstated. In the same year, pathologist Alan Williams was found guilty of serious professional misconduct ⁹ for not disclosing evidence that could have helped clear Mrs Clark.

The impact on the family was obviously immense and, like many victims of a miscarriage of justice, Sally Clark was left to pick up the pieces of her life as well as grieve for the children she had lost. Tragically, she died in March 2007, just 4 years after being released from prison.

Six months later, Alan Williams won an appeal to stay on the Home Office's register of accredited pathologists. ¹⁰

Case study 2: Barri White and Keith Hyatt, convicted in 2002

In 2000, Rachel Manning's body was found on a golf course outside Milton Keynes. She had been strangled and then posthumously bludgeoned with a car steering lock. Miss Manning had attended a party with her boyfriend Barri White who later went to his friend Keith Hyatt's house. Mr White would be sentenced to life imprisonment for murder and Mr Hyatt given a five-year prison sentence for perverting the course of justice. tT

The BBC television programme Rough Justice worked on the case, with Mark Daly as reporter and Louise Shorter as Producer/Director. They requested the help of a number of experts including geographer Dr Peter Bull and geologist Dr Andrew Moncrieff.

The prosecution had argued that the men drove Miss Manning's body to the deposition site in Keith's van, and geologist Kenneth Pye found an unusual ‘assemblage’ ¹¹ of seven particles both on the victim's skirt and on the passenger seat.

Using Locard's principle ¹² that ‘every contact leaves a trace’, Peter Bull revisited this evidence and tested the principles underpinning Ken Pye's findings. Dr Bull concluded there was no scientific basis for Pye's conclusions and the assemblage of particles was not unusual. New DNA samples from Mr White also showed no connection to the murder.

The convictions were quashed in 2007 and Mr White was acquitted at retrial the following year.

Forensic scientist Tracy Alexander, current BAFS President, was working on cold cases at the time, and performed DNA analysis on the steering lock used in the murder. A profile matching Shahidul Ahmed was located through the National DNA Database and, in 2013, he was found guilty of Rachel Manning's murder and sentenced to 17 years in prison.

Case study 3: Barry George, convicted in 2001

Jill Dando, a television personality who presented BBC's Crimewatch, was fatally shot outside her London house in April 1999. Forensic examination determined she died from a single bullet wound after the assailant had pressed the firearm to her head. A 9 mm bullet and cartridge case were recovered from the scene and firearm discharge residue (FDR) was identified on the cartridge and on Ms Dando's hair.

The police investigation, said to be the country's largest since the Yorkshire Ripper, came to settle on local man Barry George. The Metropolitan Police said he fitted the description of someone seen leaving the street at the time of the shooting. His flat was searched a year after the murder and investigators recovered his coat from the kitchen.

Forensic examination of that coat found a single particle of FDR inside the right-hand pocket. This single particle matched FDR on the cartridge case and the victim's hair.

In July 2001, Barry George was found guilty of murder. An appeal focused on whether or not the identification evidence was reliable and only touched on the FDR evidence. Two experts agreed that, even though only one particle of FDR had been found, that would not be found on ordinary members of the public unless they had been associated with firearms. Furthermore, the single particle found on Mr George was linked to the victim and cartridge.

Barry George's legal team then turned to the CCRC which started a review that would take five years to complete. Following the BBC's 2006 Panorama programme ‘Jill Dando: the Jury's Out’, the CCRC referred the case back to the Court of Appeal on one key ground: ‘New evidence calls into question the firearms discharge evidence at trial and the significance apparently attached to that evidence’. ¹³

Under Section 23 of the Criminal Appeals Act 1968, the court gave permission for fresh evidence to be adduced in support of this ground and for the Crown to present additional evidence in challenging it. At the same time, guidance was being drawn up by the then Forensic Science Service (FSS) on how an expert should evaluate a finding. The guidance stated two rival propositions should be examined: that an event which formed part of the prosecution case did occur, and that the event did not occur, and whether or not that made a difference to the evaluation of that evidence.

At the time of Barry George's trial, Dr Ian Evett CBE, a leading authority on the interpretation of scientific evidence, had understood from the expert witness that the FDR evidence was neutral and did not say categorically whether or not the discovery of this single particle meant that Barry George was likely to have been involved in the murder. However, that is not how it had been reported in the press or understood by the public. Dr Evett felt a ‘vague unease’ ¹⁴ about this and began the conversation around how evidence, presented as neutral in court by experts, can take on increasing significance through the trial.

The outcome was that the FDR evidence was neutralised. The discovery of that single particle did not say whether or not Mr George was more or less likely to have carried out the murder. In addition, it may have come from an extraneous source. One study in the UK found single FDR particles on public transport ¹⁵ which meant it could not be claimed that the discovery of a single particle was strong evidence to conclude Mr George was involved in the murder.

In January 2006, the Forensic Science Service issued guidelines ¹⁶ :

‘Very little in the way of interpretation can be applied to finding LOW levels of residue because of the lack of relevant background data …’

Case study 4: Lundrim Gjikokaj, convicted in 2008

In October 2008, Cima Sogojeva was shot dead and then stabbed in his Golders Green flat. In 2012, Lundrim Gjikokaj, a fellow Kosovan Albanian, was convicted of the murder and sentenced to 28 years.

The case again involved FDR. A very high level of gunshot residue type 2 and a small number of gunshot residue type 1 particles were found on the deceased's body and clothing. Two single particles were found in the hire car Mr Gjikokaj had been using: one of type 1 on the front nearside seat and one of type 2 on the front offside door handle. In court, Dr Christopher Moynehan, employed by a private supplier of forensic services, LGC, consistently refused to give an evaluative opinion of this low-level finding.

Yet, His Honour Judge Browne invited the jury to ‘use this evidence as being consistent with and confirmatory’ ¹⁷ of the other firearms evidence, namely the finding of matching bullet casings in the street drain near where Mr Gjikokaj had parked. This peculiar direction was the subject of an unsuccessful appeal ¹⁸ and a refused application to the Supreme Court by Mr Paul Mendelle QC and Mr John Lyons in 2014. Once again, Ian Evett was alive to the unsatisfactory aspects of the judgment and presented them in a paper delivered to the Royal Society in 2015. ¹⁹

Inside Justice included the FDR anomaly in a submission to the CCRC on Mr Gjikokaj's behalf in 2020. In late 2021, the Commission issued a statement of reasons why it was not minded to refer the case. Inside Justice has responded, aided by Winston Roddick QC and forensic scientist Jo Millington, as well as Ian Evett, and awaits the CCRC's final decision. Mr Gjikokaj remains in custody, protesting his innocence.

Case study 5: Colin Lattimore, Ronnie Leighton & Ahmed Salih, convicted in 1972

In 1972, Maxwell Confait was murdered and three young men imprisoned, although their confessions had been under duress by police officers and were soon retracted. Three years later, they were freed when fresh medical evidence pointed to a time of death for which they had strong alibis. ²⁰ The case became a cause célèbre in criminal law and a straight line can be drawn from it to the introduction of the Police and Criminal Evidence Act (PACE), 1984.

Case study 6: Patryk Pachecka & Grzegorz Szal, convicted in 2017

In 2017, Grzegorz Pietrycki's throat was slashed in North London and two fellow Polish citizens Patryk Pachecka and Grzegorz Szal were convicted of his murder. ²¹ Three experts subsequently concluded the fatal attack most likely took place in a location where the two convicted men could not physically have been, according to CCTV footage. However, the CACD ruled it neither necessary nor expedient in the interests of justice to receive this fresh evidence, ²² instead quashing the convictions on the ground that a third accused's criminal record had not been disclosed. A retrial was ordered, at which the fresh scientific evidence was heard and accepted by the Crown's pathologist, and Mr Pachecka and Mr Szal were acquitted. ²³

Discussion

In this paper, we have outlined three pairs of real-life cases to illustrate how expert opinion can contribute to miscarriages of justice as well as help to resolve them and how courts can play fast and loose with that opinion.

The first pair of cases describes how experts can step out of their field of expertise to disastrous effect, unleashing the monster of junk science.

The second pair demonstrates the judiciary's failure to understand and heed the scientific community's attempts to correct and avoid misattribution.

The last two cases are strikingly similar, involving forensic evidence potentially available at trial though not before the jury, but the behaviour of the CACD could not be more different: receiving fresh evidence in the interests of justice in 1975, refusing to receive it in 2021.

Fresh scientific evidence appeals are rare ²⁴ but the antipathy of the CACD to fresh evidence appeals may be a self-fulfilling prophecy. Innocent men and women may well remain in prison, advised by their legal counsel and/or the Criminal Cases Review Commission that an attempt to bring an appeal on fresh evidence is bound to fail.

While we continue to be concerned with how much weight is applied to expert opinion, the need for that opinion to be heard is more critical than ever.

The financial cuts to legal aid are well documented and the impact of those across the criminal justice system, including the CCRC, has led to widening cracks for people to more easily fall through.

We have briefly touched on the issue of disclosure and would reiterate the importance of materials being disclosed post-conviction for forensic tests to take place, especially in those cases where a miscarriage of justice is suspected. Unfortunately, despite having some clarity from a Supreme Court ruling ²⁵ which supported the notion that material should be disclosed to people other than the police or the CCRC, the reality has been quite different: Inside Justice has first-hand experience of police forces misinterpreting the judgment and using it as a basis to refuse the disclosure of material to our experts, making our work and the work of our team near impossible.

There have been attempts to strengthen the CCRC with a series of recommendations emerging from the All-Party Parliamentary Group on Miscarriages of Justice which published a report last year. ²⁶ It recommended the CCRC ‘set up an advisory panel of external forensic experts to consult on scientific and technical issues and on developing forensic strategies’. The Commission dismissed this, describing it as a ‘retrograde step’, ²⁷ claiming a single advisory panel would be restrictive and preferring to instruct experts on a case-by-case basis without expert advice on when or where to do so.

The criminal justice landscape will no doubt remain fraught with challenges for years to come but Inside Justice will continue to fight for those who have been failed by the system by providing thorough investigation which often relies on forensic expertise as the key to unlocking a case and putting the wrongs to right.

There is a disconnect between the discipline of science, driven by the need for improvement in understanding, and a system of criminal justice guided by past judgments and wedded to the principle of the jury's verdict as final. Is this clash of ethos responsible for the under-use and misinterpretation of expert opinion in and after criminal trials, allowing the guilty to go free and the innocent to be wrongly convicted? Inside Justice is currently seeking funding to more fully research these issues and would welcome anecdotal evidence from all stakeholders ( gm@insidejustice.co.uk ).

www.insidejustice.co.uk

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