Barnes, R v

Fresh evidence should be assessed by its likely effect on the safety of the conviction. In a case of difficulty, the appellate court will usually ask whether the evidence, if adduced at trial, might reasonably have affected the jury’s decision.

Expert opinion is admissible only where the witness has relevant skill, knowledge, study and experience. Expertise in one subject does not qualify a witness to express an opinion on a materially different forensic comparison. Evidence which has no substantial force, even if assumed admissible, cannot render a conviction unsafe.

The appellant was convicted at Manchester Crown Court in 1997 of robbery and inflicting grievous bodily harm, contrary to section 20 of the Offences against the Person Act 1861. The Crown case relied principally on two fingerprints attributed to him: one lifted from a bedroom door in the victims’ home and one from broken glass near the route taken by a taxi passenger shortly after the offences.

On appeal, the appellant relied on fresh evidence from an arboriculturalist who had compared apparent wood-grain marks on the fingerprint lift with the bedroom door. The central issue was whether that evidence should be received under section 23 of the Criminal Appeal Act 1968 and, if so, whether it made the convictions unsafe.

1. Appeal dismissed. The court held that the proposed fresh evidence did not make the convictions unsafe.
2. Under section 23 of the Criminal Appeal Act 1968, the court had to assess the fresh evidence in deciding whether it could provide a ground for allowing the appeal. Following R v Pendleton [2001] UKHL 66, the ultimate question was the safety of the conviction, not the appellant’s guilt. In a case of difficulty, the useful check was whether the evidence, if given at trial, might reasonably have affected the jury’s verdict.
3. The principles governing expert evidence were satisfied only where the witness possessed relevant expertise for the comparison proposed. Applying Robb (1991) 93 CAR 161, the court concluded that Mr Murat’s expertise in identifying wood grain did not equip him to interpret a fingerprint lift or to compare its incomplete and potentially distorted markings with a door surface.
4. Even assuming that Mr Murat’s comparison evidence could have been admitted as observation rather than expert opinion, it lacked substantial force. His method was novel to him, incompletely recorded and affected by his lack of knowledge about fingerprint lifting, contamination, pressure, distortion and the partial nature of the marks visible on the lift. It therefore could not reasonably have affected the jury’s verdict.
5. The wider evidence reinforced that conclusion. The court found no evidential basis for the suggested police planting or substitution of either fingerprint. The second fingerprint, found on glass where the taxi passenger had broken a bottle, made that allegation particularly implausible. There was also no basis for a reference to the Criminal Cases Review Commission under section 23A(1) of the Criminal Appeal Act 1968.

• Court of Appeal (Criminal Division). The appeal against conviction was dismissed: [2005] EWCA Crim 1158.
• Manchester Crown Court. Before HHJ Maddison and a jury, the appellant was convicted on 14 February 1997 of robbery and inflicting grievous bodily harm contrary to section 20 of the Offences against the Person Act 1861.