Bowman, R v

Where fresh evidence is received on a criminal appeal, the Court of Appeal must evaluate it against the evidence as a whole and decide for itself whether the conviction is unsafe. The possible effect on the trial jury is only a useful cross-check in a difficult case. Under section 23 of the Criminal Appeal Act 1968, the court must also consider why available evidence was not adduced at trial. It will guard against attempts to reopen a properly conducted trial by advancing a new expert case that could and should have been called before the jury.

Expert witnesses owe an overriding duty to the court. Their reports must state their expertise, instructions, material considered, methodology, competing opinion, relevant literature, and their duty of independence.

R v Thomas Bowman concerned convictions at Preston Crown Court for the murder of the appellant’s wife in 1978 and for sexual offences against his children. The prosecution case included evidence of violence, the children’s accounts of the night of the death, alleged lies by the appellant, a prison confession, and pathology evidence obtained after an exhumation.

The appellant appealed his murder conviction on the basis of fresh expert pathology evidence challenging Dr Armour’s conclusion that death resulted from manual strangulation. He also sought to add a ground based on expert memory evidence directed to the reliability of Diane’s recollection. The central issue was whether the fresh evidence rendered any conviction unsafe.

1. Appeal dismissed. The court received the fresh pathology evidence because it was expedient in the interests of justice, although several experts could have been called at trial and their evidence substantially duplicated Professor Whitwell’s evidence. It rejected the proposed additional memory ground.
2. Applying the approach in R v Pendleton [2001] UKHL 66, the court assessed the fresh evidence in the context of the whole prosecution case. The decisive question was for the appellate court itself: whether the convictions were unsafe.
3. The pathology issue was whether the bilateral thyroid-cartilage fractures occurred before or after death. There was strong evidence that they were ante-mortem. The jury could properly regard accidental fractures during the first autopsy, or on replacement of the neck structures, as remote possibilities. There were also cogent grounds on which the jury could conclude that the first autopsy was incomplete and had missed subtle signs of strangulation.
4. The court rejected the principal criticisms of Dr Armour’s trial evidence. It accepted that, in referring to the Nicole Lewis example, she should have identified bruising at the jaw line and petechiae on the upper eyelids. However, she had not intended to mislead the jury and that limited deficiency did not undermine the safety of the verdict.
5. The fresh pathology evidence did not displace the wider evidence of violence, the children’s accounts, the appellant’s alleged lies, and the prison confession. The memory evidence was of little assistance beyond matters of common experience and could not have affected the verdicts. The murder conviction was safe.
6. By way of guidance, the court restated that criminal experts owe their overriding duty to the court and must give independent, objective assistance. Expert reports should transparently identify qualifications, instructions, material, methodology, competing views, relevant literature, and any later change of opinion.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in R v Thomas Bowman, [2006] EWCA Crim 417, after receiving fresh pathology evidence and considering proposed additional memory evidence.
• Preston Crown Court: convicted the appellant of murder and sexual offences on 23 July 2002. He received life imprisonment for murder, with concurrent sentences for the sexual offences.