KS, R. v

Where expert evidence creates a central and apparent conflict with eyewitness evidence, the trial judge must place that conflict fairly and clearly before the jury. The summing-up must not leave the jury to treat an unsupported factual hypothesis as a legitimate means of reconciling the evidence. It must also fairly state material limitations on an alternative explanation advanced for the expert findings. A conviction is unsafe where those omissions may have prevented the jury from properly evaluating evidence that could materially undermine otherwise powerful eyewitness testimony.

The three appellants were convicted in the Crown Court at Wolverhampton of acts intended to pervert the course of public justice. The prosecution alleged that Sarjit, rather than Sonia, had driven the car involved in a fatal collision and that all three appellants lied to the police about this.

Numerous eyewitnesses supported the prosecution case. Defence expert evidence concerning microscopic windscreen glass found on Sonia but not Sarjit was capable of supporting the contrary account that Sonia had been driving. The appeals challenged, principally, the Recorder’s treatment of that evidence in his summing-up.

The central issue was whether the summing-up fairly presented the conflict between the eyewitness and expert evidence, and whether the resulting convictions were safe.

1. The appeals were allowed and the convictions were quashed. The expert evidence was potentially central to the question whether Sarjit had been driving. Although the eyewitness evidence appeared overwhelming, the absence of windscreen glass on Sarjit and its presence on Sonia could be thought strongly to support the defence account.

2. The Recorder had explored with the expert the possibility that an oblique impact with the windscreen could distribute glass across the car. On the evidence, however, that possibility could not legitimately explain glass bypassing the driver and reaching the front passenger. The child had been thrown into the air before striking the offside corner of the windscreen, and the relevant force was the car’s forward momentum rather than sideways momentum of the child.

3. Because the Recorder had raised that possibility and allowed the prosecution to rely on it in closing, a clear corrective direction was required. The summing-up instead left the jury with the oblique-impact explanation without making clear that it had no application on the evidence.

4. The summing-up also referred to possible sources of glass on Sonia if she had moved to the driver’s seat, but did not fairly identify that only a minority of witnesses supported that account or that it did not explain the absence of glass on Sarjit. The Recorder did not sufficiently place before the jury the central dilemma between the expert and eyewitness evidence.

5. The deficiencies might have affected the verdict, particularly given inconsistencies in some eyewitness accounts and scope for error about the door from which Sarjit emerged. The convictions were therefore unsafe. The related summary-only convictions against Sarjit and Sonia were also set aside under Criminal Justice Act 1988, section 41(11).

• Court of Appeal (Criminal Division): Allowed the appellants’ appeals and quashed their convictions.

• Crown Court at Wolverhampton: On 8 November 2005, the appellants were convicted of acts intended to pervert the course of public justice. On 12 January 2006, each received nine months’ imprisonment.