Practice and Procedure


PUBLISHED December 11, 2003

Considering the evidence as a whole, the defendant's convictions for burglary and attempted burglary were safe despite the fact that part of the evidence against him was ear print evidence. A total sentence of ten years' imprisonment was not excessive considering the seriousness of the offences and the danger the defendant posed to elderly people.Appeal by the defendant ('K') against a total sentence of ten years' imprisonment for one count of attempted burglary and three counts of burglary. K was also granted leave to appeal against conviction but it was confined to specific grounds. The first burglary was committed late at night at the home of an elderly infirm person. One piece of evidence connecting K with the first burglary was an ear print on a windowpane that an expert witness ('M') had concluded belonged to K. The other burglaries and attempted burglary also targeted elderly and vulnerable victims. During the trial, a prosecution witness ('S') unexpectedly gave evidence that it was he who had committed all the offences with which K was charged. At the conclusion of the prosecution case K made a submission of no case to answer and a submission that the jury be discharged because of the alleged prejudicial nature of S's evidence, both of which were unsuccessful. K dismissed his counsel and solicitors and applied to the Recorder for new representation. The Recorder expressed his view that this was a device to secure a re-trial and refused the application. In the result K had to represent himself for the remainder of the trial, including the preparation of his closing speech. He requested the help of his wife first to write it and then to read it out to the jury, a course of action which the Recorder permitted. On appeal K submitted that: (i) M's ear print evidence in his trial compared unfavourably with the ear print evidence adduced in the subsequent case of R v Dallagher (2002) EWCA Crim 1903, in which some doubt was cast on the safety of ear print evidence to be used alone to identify a suspect; (ii) he ought to be permitted to adduce fresh expert evidence with a view to submitting either that the ear print evidence was inadmissible in principle as the scientific basis for the expert's opinion did not exist or that, had the new evidence been adduced at trial, it might have undermined M's evidence sufficiently to have led to K's acquittal; (iii) he ought to have been allowed fresh counsel and solicitors and the course followed by the Recorder contravened the provisions of Art.6(1) European Convention on Human Rights; (v) it had been unfair for the Recorder to have allowed K's wife to read out his closing speech as it was unusual, unsatisfactory and unfair; and (vi) the sentence was excessive.HELD: (1) K's submission that M's evidence compared unfavourably with the ear print evidence in Dallagher (supra) was not an arguable ground of appeal. What had to be considered was whether K's conviction was safe, having regard to the evidence that had been given and to certain procedural decisions made in his trial. Therefore correctness of the ear print evidence was not the only issue. (2) K's new expert evidence was admitted and the Crown gave further evidence in reply. The test to be applied in relation to fresh evidence was that established in (R v Pendleton (2001) UKHL 66). The court had to consider whether, if the new evidence had been available at K's trial, it might reasonably have affected the decision of the jury to convict. The new expert evidence would not have affected the outcome of the trial. The case of Dallagher (supra) was distinguishable, principally in that there was significantly more supporting evidence against K than against Dallagher. (3) The Recorder had been entitled to conclude that K had been attempting to manipulate the proceedings by requesting new counsel and solicitors. He had handled the situation fairly and properly. Although allowing K's wife to read out his closing speech was unusual, it had no bearing on the fairness of the trial or the safety of the convictions; moreover, it was done specifically at K's request. (4) With regard to the sentence, K had a long history of dishonesty offences, which had usually targeted elderly and vulnerable people. According to the pre-sentence report put before the Recorder, K was addicted to heroin and crack-cocaine and presented a high risk of further offending. The offences the subject of this appeal were particularly serious examples of burglary. K again had been targeting elderly and vulnerable victims. All of the offences had been committed at night and in each case the householders were at home. In three cases he had disturbed the victims. Two 89-year-old women had found him in their bedrooms. All the victims had been gravely affected by these offences. The Recorder had been correct in describing K as "a menace to elderly people in their own homes" and in his pronouncement that the sentences had not only to reflect the gravity of the offending but also to deter others inclined to commit similar offences. K had shown no remorse and the sentences were appropriate.Appeal dismissed.

[2003] EWCA Crim 3555