Neutral Citation Number: [2004] EWCA Crim 2818
Case No: 2001/4089 B1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MANCHESTER CROWN COURT
HHJ WOODWARD

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11/11/2004
Before :

LORD JUSTICE LATHAM
MR JUSTICE RODERICK EVANS
and
MR JUSTICE PITCHERS
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Between :

	REGINA	Appellant	
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	ALAN RICHARD McNAMARA	Respondent	

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Mr Michael Mansfield QC and Ms Anne Shamash (instructed by Walker Crompton Halliwell) for the Appellant
Peter D Wright QC (instructed by The Crown Prosecution Service (Mr P Blomley)) for the Respondent

Hearing dates : 18/19 October 2004 
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Judgment
Mr Justice Roderick Evans: 
1.	On the 25th of June 2001 at the Crown Court at Minshull Street, Manchester, following a trial before His Honour Judge Woodward and a jury, Alan Richard Mcnamara was convicted of burglary and of theft of a motor vehicle.   On the 17th of July 2001 he was sentenced on each count to a period of two and a half years’ imprisonment.   Those terms were ordered to run concurrently.  
2.	On 22nd November 2002 the full court granted the appellant’s renewed application for leave to appeal against conviction.
Background.  
3.	The offences of which the appellant was convicted both arose out of the burglary of a dwelling house at 12 Greenshank Close, Rochdale during the night of 29/30 May 1999.   The householders, Mr and Mrs Shears, had left the property on the morning of 29th May to go on holiday and had left their Range Rover Discovery parked in the drive.   Unsuccessful attempts had been made to enter their home by forcing the kitchen windows and the back door and entry was ultimately gained by forcing patio doors at the rear of the house.   Property stolen included jewellery and electrical equipment (a television, video recorder and computer) and the burglar or burglars found the keys to the Range Rover and stole that as well.   None of the stolen property, which together was valued at well in excess of £30,000, was ever recovered.
4.	On Sunday the 30th of May 1999 Terence Birchall, a crime scene examiner employed by the Greater Manchester Police, went to 12 Greenshank Close and carried out an examination of the premises.   His examination was quite brief.   It started at 1205 and was completed by 1310.   He was looking, amongst other things, for fingerprints,
5.	Mr Birchall applied aluminium powder with a brush to various items which he thought looked out of place and which, therefore, could have been touched by a burglar.   If a fingerprint of sufficient quality became visible he would lift it and place it on an acetate sheet and forward it to the Fingerprint Department for examination and possible identification.   The lifting of the fingerprint would be done by applying low adhesive tape to the surface on which the fingerprint had been found and transferring the fingerprint and the tape to the acetate sheet.   
6.	During his examination Mr Birchall made two lifts. They are recorded on the 
            Crime Scene Examination Report as: 
                                   “TB/1 1 Lift:- VASE LOUNGE    
                                  2 Lift:- JEWELLERY BOX BEDROOM   
                                               TOP RT.HAND FRONT EDGE”
Mr Birchall said in evidence at the Crown Court trial that each of these objects had appeared to him during his examination to have been out of place: the vase was on the floor of the lounge near a chair and the jewellery box was on the floor in the bedroom between the bed and the main window.  Mr Birchall’s impression of the house, as noted on the report, was that 12 Greenshank Close was a very clean house.
7.	A subsequent examination of these lifts revealed that the right thumbprint of the appellant was on the lift noted as having come from the jewellery box.   This jewellery box had been purchased by Mr Shears in December 1998 at H. Samuel, Jewellers in Market Way, Rochdale as a Christmas present for his wife.
8.	The appellant was born in 1961.  He lives and works in Bolton where he runs a successful discount store business, which sells a broad range of household items.   In the financial year, which covers the burglary, he made a profit of approximately £100,000.   In 1985 he was convicted of possessing a small quantity of cannabis resin but had no other criminal convictions.   His evidence at trial was that prior to his arrest in this case he had never been to Rochdale, he did not know the Shears, he had not committed the burglary at Number 12 Greenshank and had no financial need to indulge in criminality.
            The issues at trial.
9.	Before the jury little attention was paid to Lift One (the lift noted as coming from “vase lounge”) and the evidence concentrated on Lift Two which the defence admitted revealed the appellant’s thumbprint.   It was further conceded that there was no legitimate explanation for the presence of the appellant’s thumbprint within 12 Greenshank Close and the defence run by the appellant was that his thumbprint had been planted.
10.	The issue before the jury, therefore, was whether the print had been taken from the jewellery box as stated by Mr Birchall the crime scene examiner.
11.	The defence called two expert witnesses to give evidence: Alan Bayle a former Metropolitan Police fingerprint expert now in private practice as a consultant advising on fingerprint issues and Pat Wertheim an American fingerprint expert. Both these witnesses gave evidence in support of their conclusion that Lift Two was not taken from the jewellery box.   Their reasons for this conclusion were:
(a) creases and curved lines on the lift were indicative of a lift taken from a curved rather than a flat surface
(b) the shape of the thumbprint was not consistent with the lift taken from a flat surface
(c) the lift did not show the texture, i.e. wood grain, of the surface of the jewellery box from which the lift was said to come.   All lifts from a comparable box showed a background of wood grain.
12.	Mr Birchall said that when he took the lift the surface of the jewellery box was contaminated.   Possible contaminants were furniture sprays, deodorants or makeup.   He recalled that when he took the lift part of the tape would not stick to the surface and his technique when taking the lift was to press the tape by hand rather than with a roller and he tried to straighten the tape before putting it onto the acetate sheet.   This would, he suggested, account for the creases and curved lines and the lack of wood grain on the lift.   
13.	The Crown called two further witnesses to give evidence about fingerprints.   The first, Helen Parry whose expertise lay in identifying prints through ridge characteristics, said that the absence of surface texture could be explained by the level of pressure applied to the tape and that it was not unusual to see creases and curved lines on lifts from flat surfaces.    Kevin Kershaw the head of the Fingerprint Unit of Greater Manchester Police said that test lifts which he and Miss Parry had taken from the jewellery box showed surface texture and that the visibility of surface texture increased in proportion to the pressure applied to the tape.  He also said that the use of cleaning materials and climatic changes could affect a lift; cleaning would have left the box contaminated and that could have lead to the surface appearing smooth i.e. not displaying the surface texture of wood grain.   
14.	The prosecution experts had completed their evidence by the end of the first day of the trial i.e. Wednesday 20th June 2001.  Defence evidence, including the defence expert witnesses, was concluded by the end of the second day of the trial. The prosecution addressed the jury on the morning of the 22nd of June and the case was adjourned until Monday 25th June for the defence speech and summing up.   The jury retired at midday on 25th and returned a unanimous verdict at 1403.   
           Events after trial.
15.	After conviction and before sentence Mr Kershaw further examined Lift Two and identified on it the fingerprint of the householder Mrs Shears.   He made a statement dated 13th July 2001 containing this information which was disclosed to the defence.   It is now common ground between the parties that the fingerprints of Mrs Shears appear on both Lift One and Two.
16.	Mr Bayle also carried out further test lifts on the jewellery box to which he had applied various household contaminants including the brand of polish which Mrs Shears had said at trial she used.  Despite the contaminants all of the lifts disclosed the surface texture of the jewellery box.   
            The issue on appeal
17.	Mr Mansfield, on behalf of the Appellant, submits that the defence at trial had no warning that contamination as an explanation for the absence of surface texture would be raised by the prosecution witnesses, that the defence had no opportunity of dealing with it at trial and that the evidence of Mr Bayle of his further test lifts is fresh evidence.   It is further submitted that had the defence known of the presence of Mrs Shears’ fingerprints on the lifts and in particular on Lift Two they would not have run the defence which they did but would have suggested some confusion or error on the part of Mr Birchall in the taking and recording of the lifts.   This is a line of defence supported, it is suggested, by the results of a careful examination of the lifts and the supporting documentation that has now been carried out.   Before us it is conceded on behalf of the Appellant that both lifts came from within 12 Greenshank Close and we are asked to look at the provenance and integrity of those lifts.   Mr Mansfield submits that both Lift One and Two came from a rounded surface, that there is now a doubt about where Lift One came from and Lift Two may have come from an item which cannot now be identified and which the appellant, because of the nature of his business, might have handled innocently.   The evidence that he has called before us should be received by the court pursuant to Section 23 Criminal Appeal Act 1968 and is such that had it been given at trial might reasonably have affected the decision of the jury to convict this appellant, thus making the convictions unsafe.
18.	Mr Wright on behalf of the Respondent submits that the evidence on which the appellant now seeks to rely is not fresh evidence: it is material that either was raised at trial or reasonably might have been. The contamination issue was the subject of evidence at trial by both Mr Bayle and Mr Wertheim and the defence had the opportunity after the sitting of the court on Wednesday 20th June and before the jury retired on Monday 25th June to carry out any further experiments they wished.   Moreover the question now raised as to the provenance and integrity of these lifts could have been raised at trial.   Alternatively, if we find that the evidence now relied upon by the appellant is fresh evidence it is not such that might have affected the decision of the jury to convict the appellant; the possibility that Mr Birchall would have wrongly recorded both lifts and that Lift Two came from an unidentified curved object which the appellant might at some time have innocently handled is so remote that it can be discounted.   
            The evidence on appeal.
19.	We heard evidence from three witnesses called on behalf of the appellant with a view to considering whether we would “receive” it under section 23 of the 1968 Act and from four witnesses called in response on behalf of the Crown.   
20.	Gareth David Jones a consultant forensic document examiner has examined, on behalf of the appellant, the writing on the Crime Scene Examination Record and on Lift One and Two.   His conclusions are that the words “TOP RT HAND FRONT EDGE” on the report were written either by someone other than the person who wrote the details of Lift One and Two above that entry or by the same person but on a different occasion.   He favours the former alternative.   On each of the lifts the details written at the top of the docket (the date on which the lift was taken and the address of the burgled premises) are in a different ink from the words “vase” and “jewellery box” at the bottom of the docket inserted to indicate the item from which the lifts were taken.
21.	Mr Bayle, one of the fingerprint experts called by the defendant at trial was called to give evidence before us on behalf of the appellant.   Mr Bayle has now examined Lift One, which he did not examine before the trial and has re-examined Lift Two.   
22.	Lift One (vase) has creasing and a scalloping effect around the lift that indicates, in his opinion, that it came from a curved surface.   However, within the lift there is visible a pattern in the shape of a claw with three parallel lines running away from it.  This would have come from the surface of the item from which the lift was taken. There have been produced before us two photographs of the lounge of Mrs Shears’ home which were taken in the weeks immediately before the burglary.   In each a vase with a yellow floral pattern on it is to be seen on the floor between the television and a chair: also in the first photograph (JAS/1) a ceramic table lamp is to be seen on a side cabinet and in the second (JAS/2) there is a blue patterned vase in place of the lamp. Since trial the respondents have taken from Mrs Shears’ home five ceramic items - four vases and one lamp - of which we have photographs.   Item one is the yellow floral patterned vase; item two is the blue patterned vase visible in photograph JAS/2; item three is a small pot shaped vase; item four is an angular shaped vase with a mauve flower pattern and item five is the lamp visible in photograph JAS/1.  According to Mrs Shears, all these items,  apart from item four, had been dusted with aluminium powder by the time she retuned to her house after the burglary.  Mr Bayle, however, has not been able to find the claw and parallel lines pattern with his fingers on any of the vases recovered from Mrs Shears. He rejected Mr Kershaw’s view that the claw shape and lines could be a combination of two separate features and that the powdering or lifting process employed by Mr Birchall may have created the effect.   His conclusion is that Lift One did not come from any of the recovered vases.   He is critical of the lack of detail provided by Mr Birchall about where the lift came from; the vase from which the lift is said to have come is not described or otherwise identified nor is the place where the vase was found.  No sketch or other information is provided as to where on the vase the fingerprint was found.   
23.	Lift Two, Mr Bayle agrees, was dirty, consistent with the presence of contaminants, and confirms his evidence given at trial that Lift Two came from a curved surface that curves both ways and not from a flat surface.   This, he says, is indicated by the scalloping and creases on the lift that are not a product of Mr Birchall’s lifting technique which he regards as very poor.   Following the Crown Court trial he applied various polishes and other contaminants to the jewellery box and made test lifts from the top surface.   Each of his lifts and all the other test lifts carried out by experts on each side of this case, which total in excess of twenty-four lifts, showed surface texture.   Moreover, a repeated pattern of crosshatching has been identified in the background of Lift Two that is clearly visible in the enlarged photographs of this lift.   The crosshatching does not appear on the jewellery box or any of the recovered items, one to five, and is not a product of Mr Birchall’s method of lifting.  The print itself has parts missing from it: again an indication of a lift from a curved surface.
24.	He concludes that Lift Two did not come from the jewellery box or from the recovered vases and lamp.   
25.	Mr Bayle also identified what he described as “vertical cracks” in the background of Lift Two which, he said, were not on the surface of the jewellery box and he relied on the presence of these “cracks” in the lift as further evidence that Lift Two did not come from the jewellery box.   He refused to accept at first that these “cracks” were scratches in the acetate sheet as suggested by Mr Kershaw in a statement served upon the appellant and said that he had not reviewed his conclusion on this matter in the light of the content of that statement.   However, following an examination carried out in the witness box Mr Bayle conceded that the “vertical cracks” were indeed scratches in the acetate.  
26.	Terence Merston, the second fingerprint expert called on behalf of the appellant, had taken test lifts from the jewellery box all of which displayed surface texture.   He also took test lifts from the vases and these lifts had creasing and scalloping which did not appear on the test lifts from the jewellery box.   Lift Two, in his opinion, had characteristics similar to lifts taken from the vases.   
27.	Mrs Shears, called by the Crown, said that she would clean three times a week: she would dust twice a week and spray polish once a week.   This cleaning included vases and the jewellery box.   The last time she cleaned prior to the burglary would probably have been the previous Thursday.   
28.	After hearing of the burglary Mrs Shears returned home. She saw that the yellow floral patterned vase was lying on its side in the lounge.  It was the only vase that had been moved during the burglary.     The jewellery box had also been moved and had been dusted for fingerprints.  However, no other items had been moved during the burglary and no other items, apart from those we have mentioned, had been dusted for fingerprints.   Mrs Shears could not remember whether any other surfaces had been dusted for fingerprints
29.	Items one to four were the only vases Mrs Shears possessed and she could recall something of when and where they were purchased.   Items 1, 2 and 4 were purchased approximately 9 years ago either in Northampton or Leicester: the family had previously lived in both towns. Item 3 was purchased years previously either in Boots in Rochdale or possibly at a Superdrug store and item 5, the lamp, had been purchased four or five years previously at a B & Q store in Rochdale.
30.	Mr Birchall, called on behalf of the respondent, said in evidence that all the writing on the Crime Scene Examiners Report form and on the lifts was his.   He had taken two lifts during his examination of 12 Greenshank Close.   The first was from a vase in the lounge in the area in front of the television.   He would have dusted other items - he recalled dusting two or three vases - but recovered one fingerprint impression.   He could not recall any detail of the vase from which he took Lift One and agreed that when asked about the vase by Jacquelyn Newman the Crime Scene Examination Manager with Greater Manchester Police he had told her that the lift did not come from the yellow floral patterned vase (item one) and that he thought the vase from which the lift had come was black.   He had also told Mr Kershaw that the vase from which the lift had been taken could have been item two because he thought the vase could possibly have been blue.   Mr Kershaw’s recollection, however, was that Mr Birchall had said he could not remember which vase the print had come from and had not mentioned the vase referred to as item two.
31.	He had taken Lift Two from the jewellery box in the bedroom.   He believed he had also examined a watch case or watch box in the bedroom and confirmed that in cross examination at the Crown Court trial he had said that he believed he had also dusted a pot upstairs.
32.	His procedure when taking a lift is to deal with each lift and its notation separately.   He first fills in the details at the top of the docket then takes the lift which he applies to the acetate sheet and finally fills in the detail of the source of the lift at the bottom of the docket.   He has a box in which he keeps his tools and pens and could well pick up a pen to complete the bottom entry on the docket which was different from the pen which he used to fill in the entry at the top.   He accepted the criticism of the paucity of the detail relating to the source of the lifts.   The words “ TOP RT HAND FRONT EDGE” on the report form would have been written during the examination itself or shortly thereafter, possibly in his car after the visit to the premises was concluded.   
33.	He did not recover prints from any other items and could not have been confused as to where these lifts came from.   Had there been a print on the watch box or pot he would have taken it.   There had been something on the surface of the jewellery box that had made the application of the powder to it difficult.   The surface was contaminated but not dirty in the normal sense.   His technique was to apply the adhesive to the surface with his fingers not with a roller and the tape when applied had formed creases because it would not take on the surface of the box.   When he applied the lift to the acetate sheet he had smoothed out the creases thereby producing the features visible on the lift but he could not explain why the creases appeared parallel and rounded as described by Mr Bayle.   
34.	Mr Kershaw said that the lifts were received at the Fingerprint Bureau of the Greater Manchester Police on 2nd June 1999 and by then all the written details that presently appear on the lifts were present.   Once the lifts had been received at the Bureau the scenes of crime examiner would not have access to them.   
35.	The claw and parallel line pattern on Lift One was in his view potentially two features that had become conjoined.   The pattern is not visible in the pattern of any vase but one or both of the features in the pattern could be within the glaze of a vase rather than painted on it.   The pattern might also be a product of Mr Birchall’s powdering or lifting process.   He had not found the pattern on any of the vases.   Two of the vases are large which makes finding a particular feature difficult.   However, test lifts taken by him from the vases referred to as items one and two had displayed features of parallel lines.
36.	The scalloping seen on Lift Two occurs because of the lifting technique employed by Mr Birchall and there is, he said, no indication on this lift that it comes from a curved surface.   The creasing which is visible on the lift was caused by the low adhesive tape that creases easily when applied manually to a surface.   He has seen many thousands of lifts with creasing caused by this technique of taking lifts.   He examined a dip sample of earlier unconnected lifts taken by Mr Birchall and a number of these lifts displayed features similar to those visible on Lift Two and similar to the curved parallel creases upon which Alan Bayle placed emphasis.   The crosshatching on this lift could be caused in a number of ways. It could be a product of Mr Birchall’s technique or it could be caused by Mr Birchall’s brush strokes when applying powder. Alternatively, it might have been present on the surface of the jewellery box when Lift Two was taken or it could be caused by a contaminant present on the surface of the box.   
37.	Mr Kershaw conceded that all test lifts taken from the jewellery box had displayed background texture although we note that Mrs Newman gave evidence on behalf of the Crown that two test lifts that she had taken from the jewellery box had shown a degree of scalloping round the edges of the powder and no surface texture.   Mr Kershaw said that Lift Two was a unique lift that had been taken in circumstances that could not be replicated for subsequent test lifts.   The presence of a contaminant, the particular climatic conditions present when the lift was taken, the technique employed by Birchall and the pressure he applied to the lift were capable of explaining the absence of background texture on this lift.   
           Conclusions
38.	It is conceded that both lifts came from within 12 Greenshank Close.   A vase on the floor of the lounge was disturbed during the burglary.   Although the television, video recorder and computer were taken by the burglars no other vase was disturbed.   However, vases referred to as items 2 and 3 and the lamp item 5 were dusted by Mr Birchall.   All the vases Mrs Shears possessed have been produced and she has given details of their provenance.   She had no black vase.   Her evidence excludes the possibility that any of these vases might have been handled innocently by the appellant.
39.	The appellant’s case has moved substantially during the history of these proceedings.   Initially in interview the appellant denied that the recovered fingerprint was his.   At trial he conceded that the fingerprint was his but alleged that someone involved in the investigation of the burglary had planted it.   The appellant’s present case must be that Terence Birchall has wrongly recorded where each of the two lifts came from and that both lifts came from a curved surface other than the surfaces of the five items recovered by the respondents and referred to in evidence before us.   Moreover, the curved surface from which lift 2 must be alleged to have come was on an unspecified item which on the evidence was not disturbed by the burglars and which at some unspecified time now incapable of being identified had been handled innocently by the appellant, presumably during the course of his business.   
40.	Against the background of the evidence of the regime of cleaning which existed in the Shear household, the nature and extent of the disturbance to items during the burglary and Mrs Shears’ evidence about the items which had been subjected to finger print testing the evidence which the appellant now wishes us to receive could not, in our judgment, have reasonably affected the decision of the jury to convict the appellant had it been called at the Crown Court trial.   We therefore refuse to receive this evidence and dismiss the appeal.
 Fresh evidence
41.	   Is the evidence called on behalf of the appellant fresh evidence within the meaning of section 23(2)(d) of the Criminal Appeal Act 1968 i.e. is there a reasonable explanation for the failure to adduce the evidence during the Crown Court trial?   The two lifts and the associated documentation were all available to the defence prior to the Crown Court trial and the defence of innocent contact was as available then to the appellant as it is now.   The defence experts could in the time available to them at trial after the prosecution experts had given evidence about contamination have carried out the experiments that they later undertook.   The issues now raised before us were either raised at the Crown Court trial albeit with a somewhat different emphasis or were available to be raised at the trial.   
42.	There appears to us to be a strong argument that the appellant made a decision as to the nature of the defence he wished to run at the Crown Court trial and chose not to pursue or investigate the matters that are now the subject of evidence.   However, in the light of our decision set out above we do not express any concluded view on whether the consideration set out in section 23(2)(d) is satisfied.