Otway v R.

Expert comparison evidence may be admitted where the relevant expertise is sufficiently recognised, the witness is qualified, and the foundation for the opinion is established. A statistical database or quantified probability assessment is not invariably required. The expert must, however, identify and demonstrate the comparison features, and any evaluative conclusion must remain within the expertise proved.

In a joint enterprise, the prosecution must prove that the defendant shared the requisite intent and played a part in the offence. Effective withdrawal must be real, effective and communicated in good time. Steps to prevent the crime are relevant, but are not an indispensable condition of withdrawal.

The appellant was convicted at a retrial in Manchester Crown Court of the murder of Mark Daniels. The prosecution alleged that he drove a blue Honda to and from the shooting and acted in a joint enterprise with the gunman. He received life imprisonment with a minimum term of 27 years.

His appeal challenged the admission of a podiatrist's gait-comparison evidence and the trial judge's directions on joint enterprise, withdrawal, and aspects of the evidence. The first trial had ended without a verdict. The central questions were whether the expert evidence was admissible and whether the summing-up fairly and accurately left the issues to the jury.

1. Appeal dismissed. The conviction was safe. The court found the circumstantial case strong and rejected each criticism of the summing-up.

2. The gait evidence was properly admitted. Expert opinion is admissible where the subject involves recognised expertise beyond unassisted lay judgment, the witness is qualified, and a proper foundation for the opinion is shown. Mr Blake's unchallenged clinical experience and explanation of gait assessment were sufficient on the evidence before the trial judge.

3. A statistical database, peer-reviewed validation, or an assessment of the probability of a match was not an absolute condition of admissibility. Nevertheless, a visual-comparison expert must identify and demonstrate the features on which the opinion rests. The jury could assess the five identified gait similarities from the recordings themselves. The trial judge was right to prohibit an ultimate probability-of-match evaluation, since the foundation for that further opinion had not been established.

4. The court declined to admit Professor Jamieson's proposed fresh evidence under section 23(2) of the Criminal Appeal Act 1968. It was irrelevant to the legal issue of admissibility and he lacked expertise in podiatry or biomechanics.

5. The joint-enterprise directions were adequate. The jury were correctly told that the prosecution had to prove that the driver knew of the gun, shared an intention to kill or cause really serious injury, and played a part in the offence. The words “Don’t smoke him”, if spoken, were correctly left as relevant both to whether there was a joint enterprise and to possible withdrawal.

6. Withdrawal had to be real, effective and communicated in good time. The judge correctly treated the absence of steps to restrain the gunman or prevent the shooting as relevant, but not as making withdrawal impossible. The judge also sufficiently summarised the contested evidence and was not required to address every defence submission separately.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction.
• Manchester Crown Court: following a retrial before HHJ Gee QC and a jury, convicted the appellant of murder and imposed life imprisonment with a minimum term of 27 years. The earlier trial had ended with a discharged jury after it could not agree on a verdict.