502. That leads to the next major consideration, namely, how could the DNA, whether from blood or some other bodily fluid, have got into the moderator otherwise than as a result of back splattering in the course of the killings. This raises significant issues of contamination. These were dismissed somewhat readily by the CCRC but it seems clear to us they either failed to establish the full history of the moderator after its discovery or alternatively ignored important aspects of that history. In the passage already quoted the Commission considered the "record of handling of the silencer by the scientist" and concluded that no contamination from the scientist was "likely to have been found that far down inside". That conclusion certainly ignores, at the very least, the examination by Dr Lincoln who removed all the baffles and tested them all so that contamination of baffles, whether deep inside or not, was a possibility. Even more importantly it failed to consider the use made of the moderator as an exhibit at trial where no sort of precautions would have been taken.
503. Mr Webster the defence expert deals in some detail with the aspect of contamination in his report dated the 22 September 2002 between paragraphs 60 and 110. That passage included:
"66. LCN DNA profiling is extremely sensitive. This can limit the relevance of results obtained by the technique; LCN DNA profiling can detect minute traces of DNA not relevant to the incident in question.
67. LCN DNA profiling can detect traces of DNA originating from individuals involved in the incident in question, but which has been transferred from one location to another after the incident.
68. LCN DNA profiling will often detect DNA completely unrelated to the crime. It sometimes detects DNA originating from people who had dealings with the exhibit before and after the crime and DNA from people involved in the manufacture of reagents and test equipment.
69. These characteristics of LCN DNA profiling often limit the relevance of results obtained when applied to any case. In my opinion, there are specific features of this case that render the results obtained completely meaningless (our emphasis added).
70. There appears to have been opportunity for DNA originating from individuals involved in the incident to be transferred from other sites into the sound moderator, and many opportunities for DNA from other individuals not connected with the incident to be deposited inside the sound moderator because of the way it was handled after the crime.
71. The destruction of reference samples taken from Ralph and June Bamber causes further difficulties. If these were still available, it would be possible to determine whether the DNA found in the sound moderator originated from them or originates from individuals unconnected with the incident.
72. Even given these limitations of LCN profiling, I do consider that the tests were worth attempting. The results obtained would have been of value if the distribution of DNA within the sound moderator detected by the LCN DNA profiling test reflected the distribution of blood within the sound moderator when it was originally tested. Unfortunately they do not.
73. Indications of blood were originally detected on the end cap, the washer, the first eight baffles and the screw threads at the end of the sound moderator. No blood was detected on the remaining nine baffles.
74. Ms Grombridge reports that DNA has been detected throughout the sound moderator and states that some of the DNA within the sound moderator could have originated from Sheila Caffell.
75. Plainly, the distribution of DNA detected does not reflect the distribution of blood originally present within the sound moderator. For example, DNA has been detected on baffles 13-17 where no blood had previously been detected.
76. Therefore, some action not necessarily associated with the deposition of blood must have caused DNA to be transferred to various areas of the sound moderator, including DNA that could possibly have originated from Sheila Caffell.
77. There appears to have been many opportunities for DNA from a variety of sources to be deposited on and in the sound moderator and for DNA to be transferred between different areas of the sound moderator as a result of the way the sound moderator was handled after the incident."
504. Mr Webster then reviewed in detail the history of the handling of the moderator and the various opportunities for contamination. He considered the fact that Dr Lincoln had taken out all the baffles and tested them all. He referred to the fact that both Mr Hayward and Mr Fletcher had handled the moderator in the witness box, a place where other exhibits were produced without any precautions being taken to avoid contact. He pointed to the fact that the judge specifically told the jury that they could "empty the baffles out later" and that it could not be established what use had been made of the moderator by the jury during their deliberations or what other exhibits may have been in their possession. He observed that the judge had told the jury that if they handled any of the clothing, they should put on plastic gloves for their own protection, thus giving rise to the possibility that blood stained items were examined by the jury with no precautions being taken to ensure that if they then went to handle the baffles there was not contamination.
505. Mr Webster concluded at paragraph 102:
"The CCRC, in their statement of reasons, more or less excluded the possibility of contamination. In my opinion, the Commission was wrong to do so."
506. We have no doubt at all that if this evidence had been placed before a jury, they would have concluded, as we do, that in accordance with the emphasised part of Mr Webster's report quoted above, the DNA testing results were rendered completely "completely meaningless".
507. Thus we are satisfied that the DNA evidence does not lead to any conclusion that the verdicts were unsafe. They do not in any way establish how June Bamber's DNA came to be found in the moderator many years after the trial. Even if one were to reject the possibility of contamination and conclude that June Bamber's blood got into the moderator during the shooting, that would not mean that Sheila Caffell's blood was not in the silencer. The flake of blood that was group tested was independent of the DNA found on the baffles which was attributed to June Bamber. The evidence about the blood testing is not, in our judgment, in any way diminished by the DNA findings, even if one ignored the whole issue of contamination at a later date.
508. In our judgment having reviewed the whole of the evidence about the blood, there is nothing to suggest that the evidence of Mr Hayward in this regard is wrong. The evidence did point to the blood being that of Sheila Caffell but he was right to acknowledge the remote possibility that there was a mixture of blood from June Bamber and Nevill Bamber. That possibility could only be overcome by considering the other aspects of the evidence, the lack of any blood in the barrel of the rifle, the finding of the moderator carefully put away in its proper place and all the other unrelated aspects of the case. We can find nothing to suggest that the evidence that was placed before the jury was misleading nor that the jury would not have given careful consideration to this aspect of the case. Accordingly we reject this ground.
Ground 16 – police misconduct 509. The final ground of appeal is a generalised allegation that as a result of "the activities of Detective Superintendent Ainsley, DS Jones and DCI Wright as detailed in grounds 1 to 13, the prosecution case is tainted and the convictions therefore unsafe. We have already recorded our conclusions on the individual grounds and have made clear that we find none of the allegations of serious misconduct made out. Before reaching final conclusions about the individual allegations, we have deliberately reconsidered the matter to see whether looking at the wider picture gives rise to any concern that in looking at matters of detail, we might have missed evidence of the kind that only is capable of being perceived by having regard to a number of smaller matters. We can see no reason to revise our view on any of the matters and we have found no evidence at all to support the allegations of serious wrongdoing by the police that is suggested.
510. As Mr Temple observed in his closing address to us, one of the striking features of this case was the difference between Mr Turner's opening address and the speech that he felt able to make once the evidence had been examined. In the former, suggestions of a widespread conspiracy to present a false case and to deprive the defence of material that would assist them in answering the case were made. By the close of the case, many of those allegations had been abandoned because they were patently obviously unjustified once the evidence was scrutinised.
511. This case has been scrutinised since conviction with as much care as probably any comparable case. In our judgment nothing has emerged to cause us to believe that there was any improper conduct by the investigating officers that threatened the integrity of the trial process, such as is alleged in this ground.
Conclusion 512. Having considered and rejected each of the grounds advanced on behalf of the appellant, it follows that this appeal must be dismissed. Each member of the court has reached the conclusion that there is nothing in any of the matters raised before us that throws doubt upon the safety of these convictions.
513. It should be understood that it is not the function of this court to decide whether or not the jury was right in reaching its verdicts. That is a task that is wholly impossible in virtually every case because this court does not have the advantage of hearing and seeing the witnesses give evidence, and deciding which of the witnesses are trying to tell the truth and which of those who are trying to do so are accurate in their recollection. Our system trusts the judgment of a group of 12 ordinary people to make such assessments and it is not for the Court of Appeal to try to interfere with their assessment unless the verdicts are manifestly wrong, or something has gone wrong in the process leading up to or at trial so as to deprive the jury of a fair opportunity to make their assessment of the case, or unless fresh evidence has emerged that the jury never had an opportunity to consider. We have found no evidence of anything that occurred which might unfairly have affected the fairness of the trial. We do not believe that the fresh evidence that has been placed before us would have had any significant impact upon the jury's conclusions if it had been available at trial. Finally the jury's verdicts were, in our judgment, ones that they were plainly entitled to reach on the evidence. We should perhaps add in fairness to the jury that the deeper we have delved into the available evidence the more likely it has seemed to us that the jury were right, but our views do not matter in this regard, it is the views of the jury that are paramount.
Prosecution application to call fresh evidence 514. It remains for us to give reasons why we refused an application to call fresh evidence made by the prosecution. Of course, in the light of our conclusions as to the merit of the appeal, this now becomes academic but it is right that we should indicate the nature of the application and our reasons for rejecting it albeit that they can now be given relatively briefly.
515. Mr Temple sought the court's leave to call Mr Martyn Ismail, a Senior Scientific Officer and Major Crime Service Manager with the Forensic Science Service to give evidence as to conclusions that could be drawn from a study of the distribution of blood staining associated with the body of Sheila Caffell, as depicted in the photographs. That application was opposed by Mr Turner. It was conceded that following the decision of this court in the case of Hanratty to which reference has already been made the court does have power to admit fresh evidence in support of a conviction where that evidence has become available since trial (see paragraphs 101 and 102 of the judgment in Hanratty).
516. Mr Turner's first objection was that this was not evidence that could not have been called by the prosecution at trial. He submitted that evidence of blood staining interpretation was available in the 1980s and the fact that the prosecution had not sought to look at this dimension of the case at that time should not mean that they can now introduce the evidence to support their case, if it was viewed by the court as unsafe to rely on the convictions in other respects. Mr Temple contended that whilst the study of and drawing inferences from blood staining patterns may have been available in the 1980s, it was in its relative infancy and with the passage of time since that era, the skills have become more developed so that in consequence greater reliance can be placed on such evidence. He relied in this regard on a statement from Mr Ismail which accepts that there have been references to the interpretation of blood patterns going back to the story of Cain & Abel in the Bible and that the first scientific work was published in 1939 but contends that in the United Kingdom, the first practical courses on the subject were not run until 1988. He concludes:
"In 1985 forensic scientists in this country would have been trained to interpret blood patters at scenes and on objects such as clothing and weapons. However, in my opinion, scientists today are more aware of the potential of blood distribution and practitioners are more confident in its use due (to) greater support and background knowledge."
517. Mr Turner's further ground for opposing the admission of this evidence was that it was not a matter that could be fully considered without placing it against many other aspects of the evidence called at trial, such as the pathologist's evidence and the evidence as to how the crime scene may have been altered between the moment when the farmhouse was entered and the taking of the photographs. He argued that unlike a distinct piece of evidence such as the DNA evidence in Hanratty, it was wholly impossible for the court to gauge the impact that this evidence might have had on the jury without the court being in a position to hear all these other aspects of the evidence that were before the jury. He pointed to a number of specific areas in which he argued that the evidence of Mr Ismail was capable of attack by reference to other evidence in the case. The most clear cut of which was that Mr Ismail had referred to a bloodstain on the upper right thigh of Sheila Caffell's nightdress that was clearly caused by a bloody hand print. He said that he understood that Dr Vanezis, the pathologist, had given evidence that there was no blood on the palm side of Sheila Caffell's hands. Therefore, he concluded, this staining must have been deposited by another individual. However, whilst Mr Ismail rightly recorded the evidence of Dr Vanezis, Mr Turner was able to point to a note made by Dr Vanezis at the time of the post-mortem examination that read:
"bloodstained palm prints on nightdress matches bloodstains appeared to have transferred from R hand. "
518. To decide whether we considered that the interests of justice required that we heard Mr Ismail's evidence, we first had regard to the evidence that it was said that he could give. From the blood staining he concluded that following the second and fatal shot Sheila Caffell was lying almost flat on her back with her head propped against a bedside cabinet. For her then to slide to be found in the position depicted in the photographs would have required the downward force to be greater than the friction of her body against the floor. In his opinion this simply was not possible as there would only be the weight of the head providing the downward force. Therefore he concluded that an additional force would have been necessary. It could not have come from Sheila Caffell since the second shot would have been instantly fatal and thus she must have been moved by someone else, for example with her legs being pulled. He also considered that the weight and the friction between her skin and her nightdress was likely to have been less than the weight and friction between the nightdress and the carpet. Therefore, he would expect movement of the body within the nightdress rather than the body and clothing sliding together across the carpet. He pointed out that the photographs demonstrated this effect at the back of the nightdress with the nightdress staying rucked up in its original position. However the front of the nightdress had not demonstrated this effect. Accordingly Mr Ismail concluded that the nightdress had been pulled down after Sheila Caffell slid into her final position. Since on the evidence, she was dead by this stage, Mr Ismail concluded that some one else had arranged her nightdress.
519. Having studied with care the statement of Mr Ismail, we concluded that this was expert evidence capable of belief. Indeed if it had been given and if cross-examination had not revealed flaws in it (which we consider unlikely bearing in mind that there was no application to call any expert evidence to contradict it), had we been on a jury hearing such evidence we might well have been very impressed by it. That evidence in itself could have led to a conclusion of guilt quite apart from the many other matters relied upon by the prosecution at trial. However, we were not satisfied that evidence of this kind was not available at the date of trial if the prosecution had sought to explore these matters and more importantly we thought that Mr Turner was right in his submission that it was very difficult to gauge with sufficient certainty the reaction of a jury to it particularly when we could not judge it against all the related evidence in the trial, which we had not heard.
520. Our conclusion was that we should not therefore admit the evidence and we have had no regard to it in reaching our conclusion. It can, however, be said about it that if it had been called at trial, it may well have represented yet another formidable string to the prosecution's bow in a case where even without any regard to that evidence, it has to be said that the prosecution were able to put forward a very strong case pointing to guilt.
General observations 521. We would finally wish to make two general observations before leaving the case. The first is to pay tribute to the industry and efficiency of all concerned with the presentation to the court of this appeal. There is now a mountain of paperwork that relates to these matters but as a result of co-operation between the two sides the relevant documentation was marshalled together in a way that provided us with the maximum assistance in understanding the points to be made by each side. For that we are very grateful just as we are for way in which argument was presented orally by both Mr Turner and Mr Temple. Without these advantages this case would have taken up more of the court's time than it did.
522. In this regard there is one further observation that we feel compelled to make. That is that it seems to us that there is a significant deficiency in the statutory framework that provides for a reference by the CCRC to this court of a matter. We have no difficulty at all with the concept that there should be a machinery to review potential miscarriages of justice, where no other avenue of appeal remains. Once a matter has been referred to this court it is clearly right that the court should fully consider those matters that have caused the case to be referred by the CCRC. However, it does seem remarkable to us that the appellant, following a referral to the court, is then entitled to raise any matter he wishes as a ground of appeal without either it having been deemed worthy of consideration by the CCRC or the leave of the court having first been obtained. We have no doubt that some of the matters that occupied the time of the court raised on behalf of the appellant were of such little merit that the court would, if it had power, have refused leave to argue them. As a result notwithstanding the economical advocacy of counsel and the efficient preparation of the case, the case lasted some days longer than could be justified by some of the points that were taken. We would not want to see an appellant shut out from trying to raise a point following a referral but we can see no justification for not having the filter present in such circumstances of requiring leave to raise additional matters to those referred by the CCRC that is present in all other appeals brought by a convicted person. The Court of Appeal Criminal Division is pressed to deal sufficiently expeditiously with the caseload that it has and time unnecessarily wasted means that cases where the court subsequently determines that someone is wrongly detained in prison are delayed. We hope that thought will be given to making this relatively modest change to the legislation that would enable the court to make more efficient use of its time.
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