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Criminal Evidence - From: 2003 To: 2003

This page lists 9 cases, and was prepared on 21 May 2019.

 
Regina v Gray [2003] EWCA Crim 1001
2003
CACD
Mitting J
Criminal Evidence
Mitting J discussed the use of facial mapping expert evidence: "We do not however wish to pass from this appeal without making general observations about the use of facial imaging and mapping expert evidence of a reliable kind. Mr Harrow, like some other facial imaging and mapping experts, said that comparison of the facial characteristics provided 'strong support for the identification of the robber as the appellant'. No evidence was led of the number of occasions on which any of the six facial characteristics identified by him as 'the more unusual and thus individual' were present in the general population, nor as to the frequency of the occurrence in the general population of combinations of these or any other facial characteristics. Mr Harrow did not suggest that there was any national database of facial characteristics or any accepted mathematical formula, as in the case of fingerprint comparison, from which conclusions as to the probability of occurrence of particular facial characteristics of combinations of facial characteristics could safely be drawn. This court is not aware of the existence of any such database or agreed formula. In their absence any estimate of probabilities and any expression of the degree of support provided…..must be only the subjective opinion of the facial imaging or mapping witness. There is no means of determining objectively whether or not such an opinion is justified. Consequently, unless and until a national database or agreed formula or some other such objective measure is established, this court doubts whether such opinions should ever be expressed by facial imaging or mapping witnesses. The evidence of such witnesses, including opinion evidence, is of course both admissible and frequently of value to demonstrate to a jury with if necessary enhancement techniques afforded by specialist equipment, particular facial characteristics or combinations of such characteristics so as to permit the jury to reach its own conclusion….but on the state of the evidence in this case, and if this court's understanding of the current position is correct in other cases too, such evidence should stop there."
1 Citers


 
Bertrand Roberts and Roland Roberts v The State [2003] UKPC 1
15 Jan 2003
PC
Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead, Lord Hutton, Lord Rodger of Earlsferry
Commonwealth, Criminal Evidence
PC (Trinidad and Tobago) The appellants had been convicted of murder and their capital sentences commuted. They now sought to challenge the convictions as to the admission of and directions given on the identification evidence. However the judge's notes had been lost, and there remained no direct evidence as to the form of any misdirection. The defendants argued that there had been a practice of misdirection by judges at the time. Held: In this case the surrounding evidence was weak, and after discounting the identification evidence, the convictions were unsafe.
1 Cites

[ Bailii ] - [ PC ]
 
Howell v Regina [2003] EWCA Crim 1; [2003] Crim LR 405
17 Jan 2003
CACD
Lord Justice Laws Mr Justice Newman Sir Richard Tucker
Criminal Evidence
The court set down the general approach to be taken where a suspect refused to answer questions put during his interview by the police.
Criminal Justice and Public Order Act 1994 34
1 Citers

[ Bailii ]

 
 Bingham, Regina (on the Application Of) v Director of Public Prosecutions; Admn 7-Feb-2003 - [2003] EWHC 247 (Admin)
 
Regina v Sally Clark [2003] EWCA Crim 1020
11 Apr 2003
CACD
Kay LJ, Holland and Hallett JJ
Criminal Evidence
The defendant appealed against her conviction for the murder of her two infant children by, in the one case, smothering and, in the other, suffocation. Amongst the experts called at her trial by the Crown was Professor Sir Roy Meadow. The statistical evidence he had given suffered the 'prosecutor's fallacy' and had badly misled the jury. Held: The appeal was allowed. Evidence had been found that there was a possible second medical explanation for one death, and some analysis had not been revealed by of of the prosecution's expert witnesses to the court to the defence or to the other expert witnesses.
1 Cites

1 Citers

[ Bailii ]

 
 Regina v Hayter; CACD 16-Apr-2003 - Times, 18 April 2003; [2003] EWCA Crim 1048; [2003] 1 WLR 1910

 
 Regina v W (Reference Under Section 36 of the Criminal Justice Act 1972); CACD 8-May-2003 - [2003] EWCA Crim 1286; [2003] Crim LR 547; [2003] 2 Cr App R 29
 
Regina v Jones and Jenkins [2003] EWCA Crim 1966; [2004] 1 Cr App R 60
6 Jun 2003
CACD
Auld LJ
Criminal Evidence
The two defendants appealed against their convictions for murder. On the prosecution case it was joint enterprise; Jones' case was that both had indeed attacked the victim, but had caused him only minor injuries and that the fatal injuries had been caused later, perhaps in a road accident; Jenkins' case was that he had been present but not participating in any way, but in his evidence he acknowledged that the victim's injuries were serious. Held: The judge had failed to give the jury an appropriately structured, or indeed any, warning about the danger of relying on the evidence of each defendant as against the other. It was desirable and, in that case, essential, for the jury to receive such a warning even where the cut-throat defences were mirror images.
Auld LJ: "Mr Harrington [counsel for the Crown] submitted that the approach in Burrows is to be preferred to that in Cheema in the circumstances of this case, because Cheema was not a direct cut-throat case, whereas Burrows was…
Mr Harrington also submitted that the judge's general directions to the jury as to how they should approach the evidence in this case sufficed in the circumstances. He referred to: the judge's direction…as to the need for separate treatment of the cases for and against each defendant, to his general direction…as to the need to consider the credibility of each witness in the case and whether it is self seeking or given to protect or to reflect badly on one defendant rather than another; and to his direction…as to the need for the jury to take the same care in their consideration of the evidence of each of the defendants as they did in respect of any other witness in the case. Those three directions, submitted Mr Harrington, taken together, were sufficient for the purpose.
Whether the defences are "mirror-image" cut-throat defences, the law, since R v. Prater…has been that some such warning should normally be considered and given. Burrows was a case in which, as Judge LJ, giving the judgment of the Court said, "the difficulty facing the trial judge was somewhat stark". Any warning he might have given applied equally to each of the two co-defendants, whose cut-throat defences were almost a mirror-image of each other. Each had given evidence casting all possible blame on the other. It may be, as Judge LJ said, that within the confines of that particular case, the trial judge could not warn the jury to approach the evidence of each defendant with care because he had an axe to grind, without indicating to the jury that he had formed an adverse view about the way in which it should be approached by the jury. Though, why that was so, even in the particular circumstances of that case, is not readily apparent to me. "40. A judge, even in a case of a mirror-image cut-throat defences, in the separate interest of each defendant, should be able to tailor a warning about the evidence of each against the other in a way that would not indicate that he, the judge, had formed an adverse view as to the defence of one or other or both. Even though the cross allegations are inextricably bound up in the defences of each, it is for the judge, in a neutral way, to give the jury such assistance as he can in their evaluation of the credibility of the evidence of each defendant as it is of that of all the witnesses in the case, whether for the prosecution or the defence.
We see no reason to depart from the approach of this Court in R v. Knowlden & Knowlden…and confirmed in Cheema, that a judge, in exercising his discretion as to what to say to the jury should at least warn them, where one defendant has given evidence adverse to another, to examine the evidence of each with care because each has or may have an interest of his own to serve. Cheema was, as Mr Aubrey has observed, a cut-throat defence.
There was also, as Mr Aubrey commented in argument, a particular need for some such warning in this case, where Jenkins, unlike Jones, had refused to answer questions in interview and was therefore able, if he wished, to tailor his defence to the facts in evidence.
In our view, the failure to give such a warning was a serious omission and unfairly prejudicial to Jones' defence, and also, though possibly to a lesser extent, to that of Jenkins. Accordingly, we do not consider that the general directions as to evidence of the judge to which Mr Harrington referred us were sufficient for the purpose.
Our attention has been drawn to current guidance of the Judicial Studies Board in the form of a note to its specimen direction No 26, which advises a form of warning to a jury where one defendant has given evidence which may have an adverse effect on a co-defendant. The guidance in the note is that such warning should not be given where co-defendants have given evidence against each other. The authority given for that proposition is Burrows.
It follows from what we have said that we consider that no such general principle can be extracted from the case of Burrows, where it is plain from Judge LJ's judgment that the Court was heavily influenced by the facts of that case.
Mr Aubrey has ventured an approach, which may be appropriate in many or most cases where a trial judge has to consider what if any warning to give where co-defendants have given evidence against each other. It seems to us to accord broadly with the general observations we have made about the principles derived from Knowlden & Knowlden and Cheema, subject always of course to what justice demands on the particular facts of each case.
Mr Aubrey suggested that a judge, when dealing with the case against and defence of each co-defendant, might consider four points to put to the jury – points that would not offend any sense of justice and certainly would not cast the judge in the light of one who has formed an adverse view against either or both co-defendants. First, the jury should consider the case for and against each defendant separately. Second, the jury should decide the case on all the evidence, including the evidence of each defendant's co-defendant. Third, when considering the evidence of the co-defendants, the jury should bear in mind that he or she may have an interest to serve or, as it is often put, an axe to grind. Fourth, the jury should assess the evidence of the co-defendants in the same way as that of the evidence of any other witness in the case. That seems to us to be a useful – and suitably focused – approach when judges are faced with this particular problem, and we commend it."
1 Cites

1 Citers



 
 Petkar and Farquar, Regina v; CACD 16-Oct-2003 - [2003] EWCA Crim 2668; [2004] 1 Cr App R 22
 
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