Kempster, R. v

Fresh evidence renders a conviction unsafe only if it might reasonably have affected the jury’s decision. Expert ear-print comparison evidence was not inadmissible in principle, and an expert could express a positive opinion despite the developing state of that science. Its significance had to be assessed with all the other evidence.

A trial judge’s discretion over an adjournment for replacement representation requires a fair balance between the defendant’s interests and those of the prosecution, witnesses and public. A defendant who has chosen self-representation must nevertheless receive proper practical assistance. Serious night-time burglaries of occupied homes, particularly those targeting vulnerable elderly victims, justify substantial deterrent sentences.

The appellant was convicted at Southampton Crown Court of three burglaries and an attempted burglary committed against elderly householders. He received concurrent sentences of ten years’ imprisonment for the burglaries and five years for the attempted burglary.

The conviction on the first count depended in part on an ear-print found at the burgled home. On appeal, the appellant sought to rely on fresh expert evidence concerning the limits of ear-print comparison. He also contended that the Recorder should have adjourned the part-heard trial after his lawyers withdrew, and that the later delivery of his closing speech by his wife was unfair. He further appealed against sentence.

1. The appeals against conviction and sentence were dismissed.

2. Under section 23 of the Criminal Appeal Act 1968, the court received the fresh evidence and applied the safety test stated in Pendleton [2002] 1 W.L.R. 72. The question was whether the evidence, if given at trial, might reasonably have affected the jury’s decision.

   The court followed R v Dallagher [2003] 1 Crim.App.R 195 in rejecting a categorical challenge to the admissibility of ear-print comparison evidence and to an expert’s positive opinion. The fresh expert could not dispute the matching features or identify differences. Unlike in Dallagher, the appellant had not denied that the print was his and advanced innocent explanations for it. There was also substantial supporting evidence, including evidence capable of showing repeated lies about his presence at the premises and his whereabouts. The fresh evidence would not have altered the trial outcome.

3. The Recorder’s refusal to adjourn for fresh representation did not infringe Article 6 of the European Convention on Human Rights. The judge was entitled to regard the request, made after adverse rulings and without an explained conflict, as an attempt to procure a retrial. He properly balanced the interests of justice and concluded that replacement advocates at that stage would require a retrial.

   The appellant was treated fairly after electing to represent himself. The Recorder gave him time to reconsider, assisted him in giving evidence, supplied notes for his closing speech, and neutrally explained the advocates’ absence to the jury. Allowing the appellant’s wife to read his prepared closing speech, at his request, did not undermine fairness.

4. The burglaries were grave. They were committed at night in occupied homes and deliberately targeted elderly and vulnerable victims. The appellant’s relevant history, lack of remorse and the need for deterrence justified sentences at the top of, but within, the appropriate range. The sentencing authority of McInerny and Keating [2003] 1 Crim.App.R 36 was not principally directed to offending of this number and nature.

• Court of Appeal (Criminal Division) Granted renewed leave on specified grounds and dismissed the appeals against conviction and sentence.
• Crown Court at Southampton The appellant was convicted on 30 March 2001 of one burglary unanimously and of an attempted burglary and two further burglaries by a majority of 10 to 2. He received concurrent sentences of ten years’ imprisonment for the burglaries and five years for the attempted burglary.