CCRC REPORT - STATEMENT OF REASONS
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| The CCRC are an independent body set up by the government to look into possible miscarriages of justice. They have the power to investigate and call witnesses. They are legally not allowed to refer cases back to the court of appeal unless a panel of three "Commissioners consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made." | ||
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CRIMINAL APPEAL ACT 1995
STATEMENT OF REASONS for a decision of the CRCC REF: 00198/97/May To: The Court of Appeal Director of Public Prosecutions Applicant: Susan Hilda May (RE0252) Applicant's Representative: Campbell Malone |
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| In exercise of its powers under the Criminal
Appeal Act 1995* (the "Act") the Criminal Cases Review Commission
has considered the application of SUSAN HILDA MAY for review of her conviction
as set out in Paragraph 1 below.
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1
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DETAILS OF CONVICTION | |||
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2
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SUMMARY OF PROSECUTION AND DEFENCE CASE | |||
| Introduction | ||||
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2.1
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Susan Hilda May was convicted of the murder of her elderly aunt, Hilda Marchbank, an 89 year old widow. The murder occurred on the night of 11/12th March 1992, in the victim's home, 24 Tandle Hill Road, Royton in Manchester. Although she lived alone, Mrs Marchbank was cared for by her niece, who visited her numerous times during the day, preparing meals and generally looking after her. Mrs Marchbank slept in a downstairs bedroom, which was in fact the dining room area of the straight-through lounge. There were two single beds in the room and this had been the case since the illness and death of Mr Marchbank some years earlier. | |||
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2.2
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At the time of the murder, Susan May was a 48-year-old divorcee. She had formerly worked as a hairdresser, but had given up employment to look after her Aunt Hilda and her mother Dorothy Shelton, who lived with Mrs May at 42 Dogford Road, Royton. She therefore had no income of her own, and depended on both her mother and her aunt for financial support. The family was fairly wealthy with both her mother and aunt owning property as well as stocks and shares. | |||
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2.3
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On the morning of 12th March 1992 at approximately 9.45am, Susan May arrived at her aunt's home as usual to check on her aunt. She had brought with her a sandwich, which she had just purchased from a shop in Royton, for her aunt's lunch. She entered the house via the rear kitchen porch, which was her normal practice. The door was unlocked but this was not unusual as her aunt would often get up, open the door, and then get back into bed and in any case was also in the habit of leaving the back doors unlocked when she went to bed. | |||
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2.4
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When she entered her aunt's bedroom she found her aunt lying on the bed with the bedclothes up around her waist and what appeared to be blood over her face. The room showed signs of a disturbance with cupboards and drawers being emptied and items of clothing, and jewellery, strewn across the floor. Other rooms in the house also showed similar signs of disturbance, and the initial conclusion was that Mrs Marchbank had been the victim of a burglary that had gone wrong, although there were no obvious signs of a forced entry, and nothing had apparently been taken from the house. However there had been other similar burglaries in the area involving elderly people living alone. | |||
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2.5
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The cause of Mrs Marchbank's death was asphyxia. The pathologist concluded that Mrs Marchbank had been grasped around the throat, beaten about the face and finally smothered by both ends of her pillow being pulled over her face. Initial enquiries focused on known burglars with general enquiries being made into her immediate family. | |||
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2.6
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Mrs Marchbank's next door neighbour made a statement to the effect that he had seen a red car outside 24 Tandlehill Road in the early hours of the morning of 12th March, and that he had heard voices. The police made an appeal for any other witnesses who had seen this car and a number of people came forward with information. The car and its occupants however were never traced. | |||
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2.7
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Working on the assumption that an intruder had murdered Mrs Marchbank, the police attempted to identify what appeared to be fingerprints in a substance that was believed to be blood on the wall next to where the body had been found. There were three marks on the wall, two of which seemed to contain handprints, the third one being merely a smear. Parts of the third smear were removed for tests to determine the nature of the substance, but the other two remained on the wall until a Scene of Crime Officer, Detective Sergeant John Hooley removed them, on 29th April 1992. | |||
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2.8
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On 20th March 1992, one finger and one palm print contained in the first of the three marks, the one nearest the end of the wall next to the bed, were identified as being that of Susan May's right hand. She was arrested on 30th March and following a number of interviews, during which she denied having anything to do with the murder, she was formally charged with the murder of Hilda Marchbank. | |||
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2.9
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During the enquiry, a number of other suspects were arrested, one of which was Barry Bolton. His sister, Karen Bolton, had made a statement saying that he had told her about a woman being murdered at 24 Tandlehill Road, and that he had told her this at 8.30am on the morning of the 12th March, more than an hour before Susan May had discovered the body. She later retracted this stating that she had been mistaken, that he had talked to her about the murder later in the day, after it had been broadcast on the radio. | |||
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2.10
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Barry Bolton was arrested and was charged with another burglary of an elderly woman during which he had stolen various items of jewellery. There was no further evidence to link him to the murder of Hilda Marchbank. | |||
| Prosecution Case | ||||
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2.11
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It was the Prosecution case that Susan May committed the murder because the funds in her aunt's accounts were depleted and she needed access to further funds in order to continue her relationship with Christopher Ross. Christopher Ross was a married man sixteen years her junior, and had lived next door to Susan May with his wife and family until he left his wife, some time before the murder. Neither Susan May's family nor Julie Ross were aware that Mrs May and Mr Ross had been conducting an affair for almost eight years. The prosecution adduced evidence that Mrs May had lavished expensive gifts on Mr Ross, including a Yamaha motor cycle, and suggested that she needed more money to continue to do so, so that he would not leave her for a younger woman. In addition, her financial situation at the time of her aunt's death was described as "parlous" and that said the Prosecution, was the motive for killing her aunt. She was aware that she and her sister were the beneficiaries of her aunt's will and that number 24 Tandlehill Road was a property of some value, a source of money that she could only obtain if her aunt was dead. | |||
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2.12
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The Home Office pathologist. Dr William Lawlor, stated that Hilda Marchbank died sometime between 9.00pm on 11th March and 3am on 12th March. He gave the preferred time as between 9.00pm and 12.00 midnight. Susan May had informed the police that she had visited her aunt at approximately 9- 9.15pm on the night she was murdered. Her aunt was in the habit of telephoning her regularly throughout the day and had called her earlier that night, as she was concerned about a set of house keys. She was therefore by her own admission in the house at a time at which the murder could have occurred. | |||
| Forensic Evidence | ||||
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2.13
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On the wall next to the bed in which the victim was discovered, there were three marks, one of which contained a palm and fingerprint that were identified as Susan May's right hand. The second of the three marks also contained what appeared to be a left handprint, but it was not identifiable. The third mark in the sequence was a smear located in the vicinity of the light switch. The Prosecution case was that these marks were made with human blood and that they had all been deposited on the wall, at the same time, by Susan May as she felt her way along the wall after committing the murder. In his summing up, the Judge described this evidence as the central plank of the prosecution case. | |||
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2.14
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It was the prosecution's case that all three marks were about the same height along the wall, four feet six inches. A Forensic Scientist, Javaid Hussain conducted some tests on the marks, on the 19th and 24th March. A Scene of Crime Officer, Mark Naylor, had physically removed the third mark, the smear next to the light switch, from the wall on the 18th March. However a small section of this smear remained on the wall, and was tested together with the other two marks by Mr Hussain. | |||
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2.15
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Mr Hussain's tests on 19th March were for the purpose of enhancing the finger marks within the marks on the wall with a view to identification. All three areas were treated with a chemical reagent in order to reveal any fingerprint details that might have been present. One of the reagents used, Ninhydrin, is known to react with various blood constituents that might be present in latent fingerprints. On the 24th March, Mr Hussain again treated the marks with a further reagent, Tetra-amino biphenyl. The purpose of this second treatment was to ascertain whether or not the marks had been made in blood. Mr Hussain gave evidence that all the marks reacted to the reagents exactly how he would expect them to if blood were present, and could think of no other substance with the same appearance, that would give the same reaction to the reagents he had used. He was unable however to say whether the substance, if it were blood, was animal or human. | |||
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2.16
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There was no conclusive evidence to show whether or not the three marks had been made at the same time or at different times. Wilfred Basley, a forensic scientist had been able to show that the third mark in the sequence, the smear by the light switch, was definitely human blood. However, tests to identify the possible source of the blood had been unsuccessful. | |||
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2.17
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The Prosecution adduced evidence that Susan May had said that she had not touched the body when she found her aunt on the morning of 12th March. Evidence was also adduced that a great deal of blood would have been required to make the marks on the wall and that no-one had noticed any blood on Susan May's hands shortly after she had found the body. A forensic scientist, Michael Davie gave evidence of some tests he had carried out on the length of time it would have taken for blood from the victim to dry. The evidence adduced was to the effect that there would not have been any wet blood around at the time the body was found and so the marks could not have been made at that time. | |||
| Financial Evidence | ||||
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2.18
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The police conducted a detailed investigation into the finances of Hilda Marchbank, Susan May, her children Adam, Toby and Katy May, and her mother, Dorothy Shelton. The results of these investigations were adduced. as evidence as to motive. It was common ground that a large amount of money, which had been in Hilda Marchbanks', her mother's and her children's accounts, was no longer there. It was agreed that Susan May had been in receipt of regular supplies of money from these sources, which were now beginning to dry up. It was also common ground that Susan May was herself short of money and was in debt to a number of credit/charge card companies. | |||
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2.19
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The Judge summarised the evidence relating to the financial aspects of the case as follows. That on 1st August 1986, Hilda Marchbank had, in various accounts, more than £46,000 and Dorothy Shelton (Mrs May's mother) and more than £12,000. Susan May herself had more than £11,000. By the 1st August 1987 all of Susan May's £11.000 had gone and she was marginally "in the red." At the time of her aunt's death, Susan May owed more than £7000. Over the same period, both her aunt's and her mother's account balances steadily declined until by the time of Mrs Marchbank's death, there was virtually nothing left. | |||
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2.20
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During that period, it was essentially Susan May who controlled their finances and determined what happened to the money. She had full power of attorney of her aunt's affairs. Her aunt and mother were in the habit of giving money to Mrs May and equal amounts to her sister, Anne Mellor. However, there were only four "twinned" cheques after October 1986, and none after October 1988. Susan May said that she gave her sister cash whenever she drew money on the accounts, as opposed to writing "twinned" cheques. By the date of Mrs Marchbank's death, money in Susan May's children's accounts had also gone, a sum of approximately £8000 in each account. | |||
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2.21
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There remained some shares worth just over £11,000 and the relevant certificates were in the safe from which Susan May could have, but did not take them. In addition, there was also an amount of jewellery valued at around £5000, and Dorothy Shelton's property, which consisted of three houses. | |||
| Evidence against a Burglary Gone Wrong | ||||
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2.22
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There was some evidence to suggest that Mrs Marchbank had been the victim of a burglary gone wrong. In some of the rooms, including the room in which her body was found, cupboards and drawers had been rifled and items of clothing and jewellery were strewn about the room. However, there was no evidence of a forced entry into the house, and according to Susan May, nothing had been stolen from the house. In addition, whilst there were some outstanding footwear marks, and one unidentified finger and palm print, there were no other prints found in the house, and no evidence suggesting that someone had burgled the house whilst wearing gloves. | |||
| Evidence of Sergeant Janet Rimmer | ||||
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2.23
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Sergeant Janet Rimmer gave evidence that on 18th March 1992, as she was leaving the police station in company with Sgt Rimmer, Susan May said to her "Do you know the scratches on my aunt's face, can they get stuff from down the fingernails at forensic?" The relevance of this comment was to the effect that at that point in time, Susan May could not be aware of the existence of any scratches on the victim's face, unless she had committed the murder herself. The Prosecution adduced evidence that no mention of the scratches had been made in any of the press or television bulletins, and that when she had identified the body at the morgue, it was positioned in such a way that she could not have seen the scratches. | |||
| Evidence of Lies | ||||
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2.24
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The prosecution adduced evidence that Susan May had admittedly lied in interview about financial matters and about the nature of her association with Christopher Ross. Relying on this fact, the Prosecution contended that she lied to the jury in evidence about conversations with two witnesses, Delryse Oakley and WPC Susan Roberts and about the comment to Sgt Rimmer, which Susan May denied making. | |||
| Defence Case | ||||
| Forensic Evidence | ||||
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2.25
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The defence said that the marks on the wall were old marks, and that there was a possibility that the marks, if they were in blood, could be in Susan May's blood, following an accident in the room some weeks earlier. Evidence was adduced that she had cut herself with a screwdriver whilst removing a doorstop from the floor. It was the defence case that the prosecution had not proved that the substance on the wall was blood or, if it was, that it was human blood. Only one mark had been shown to be human blood, but had not been proven to be the blood of the victim. | |||
| Financial Evidence | ||||
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2.26
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Whilst conceding that the majority of Mrs Marchbank's money had gone, the defence held that Mrs Marchbank had full knowledge of Mrs May's use of her financial resources. The defence also held that had Mrs May wanted to, she could have sold her aunt's jewellery or various stocks, shares and properties as she had full power of attorney over Mrs Marchbank. | |||
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2.27
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The defence denied that Mrs May was using Mrs Marchbank's money to finance her relationship with a younger, married man and in an effort to prevent him from leaving her for a younger woman. | |||
| Evidence in Support of a Burglary Gone Wrong | ||||
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2.28
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Evidence was adduced that Mrs Marchbank was in the habit of leaving her backdoor unlocked, and in any case, neither of the locks on the back door worked properly, and therefore, the absence of signs of a break-in was irrelevant. Evidence was also adduced that similar burglaries had taken place in the area where nothing but cash had been taken. | |||
| Scratches Comment to Sergeant Rimmer | ||||
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2.29
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Susan May denied making this comment to
Sgt Rimmer. She said that during one of many conversations with Janet
Rimmer, she recalled discussing the possibility of her aunt having scratched
her assailant, and the likelihood of forensic evidence being present under
her aunt's nails. It was the defence case that Sgt Rimmer had misinterpreted
this comment, and was lying when she said that Mrs May had made this comment
whilst walking out of Oldham Police Station. |
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| Evidence of Delryse Oakley and WPC Roberts | ||||
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2.30
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Susan May denied that she had told Mrs Oakley and WPC Roberts that she had argued with her aunt, and slammed the telephone down on her, on the night before she died. Mrs Oakley, having heard WPC Roberts being challenged had been recalled to give evidence that Mrs May had made a similar comment to her. The defence raised the fact that she had said nothing of this in her original statement to the police. The defence also raised the fact that Mrs Oakley worked with Sgt Rimmer's mother in law; who was in fact Mrs Oakley's Practice Manager at the medical centre where Mrs Oakley worked as a receptionist. | |||
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Summing Up | |||
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2.31
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Apart from motive, in relation to the financial matters, the Judge summed up the Crown's evidence against Susan May as: 1. Opportunity, in that Susan May had access to the house, and had admitted that she had been in her aunt's house at about nine o'clock on the night that she died. The Pathologist had given evidence that Mrs Marchbank had died sometime between 9p.m. and 9a.m. and favoured the period between 9 p.m. and midnight. 2. The marks on the wall, which the prosecution asked the jury to infer was made in blood, and which contained a finger and palm print identified as Mrs May's. 3. Signs of a disturbance in the house but nothing taken, suggesting that whoever had killed Mrs Marchbank wanted it to appear as though there had been a burglary but was not in fact a burglar. 4. The comment made to Sgt Rimmer regarding the scratches on her aunt's face. 5. Susan May admitted that she lied in interview about some financial matters and her relationship with Christopher Ross. The prosecution also contended that she lied in evidence about her conversations with Mrs Oakley, WPC Roberts and DS Rimmer. |
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2.32
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In his summing up, he referred to points relating to the prosecution case, which, he said, struck him as not "being particularly potent." The first of these was the absence of any signs of a break-in. (Summing, up: 22C-23A) He said that the evidence gave rise to a distinct possibility that "whosoever came into the house came in by the simple expedient of opening the back door." Secondly, a point had been made about Mrs May's fingerprint being, found on a jewellery box that had been found on the floor of one of the bedrooms. The judge expressed his opinion that as Mrs May was in the house daily and would often handle her aunt's belongings, that it was "readily explicable that such a finger print should be there for some reason. " (Summing up: 23B-D). | |||
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2.33
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The Crown had adduced evidence that when Mrs May ran from the house having found her aunt's body, she had told her neighbour, Mrs Oakley, that her aunt was dead. The Crown suggested that she could not have known this as she had said that she had not touched her aunt, and had not put the lights on in the room when she had entered it. The suggestion was that she knew she was dead because she had killed her. The judge however stated that he did not consider this to be such a remarkable conclusion to jump to given the general state of her aunt when she had found her. He stated: "Supposing the defendant is innocent (which is the Hypothesis that we have got to put for this purpose) can we any of us predict how a person would react when discovering such an awful sight in the bedroom as says she discovered that morning? ... Would it be such a remarkable thing to jump to the conclusion that she was dead and rush out and say that? " (Summing up: 23D-24D) | |||
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2.34
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With regard to the remarks that Susan May was alleged to have made to Mrs Oakley and WPC Roberts, that she had argued with her aunt the night before she died; the judge directed the jury not to elevate the importance of the remarks and attach more weight to them than they deserved, merely because they had been so hotly disputed by Mrs May. He said that he did not think it a particularly damning remark to make. "The effect of the remarks, taking them both together, was this, was it not, that she was saying, 'I feel awful. The last thing I said to her or one of the last things I said to her, I was cross with her and I feel it is my fault'- a sort of remorseful remark." (Summing up: 24D-24G) | |||
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2.35
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The judge also commented on the way in which Mrs Oakley's evidence on this point had come about. WPC Roberts had been extensively cross-examined about the accuracy of her account; she was shown her statement dated 27th April 1992, and the jury were told that she had not made a note of the remark in her notebook at the time because she did not think that it was important - The defence had challenged the evidence suggesting that it was untrue. During this cross-examination, Mrs Oakley, who had already given her evidence, heard WPC Roberts being challenged and remembered a similar remark that Mrs May had made to her. Mrs Oakley told the police about this, made another statement, and was subsequently recalled to give further evidence. The judge had previously made a comment regarding Mrs Oakley giving evidence. He reminded the jury of this. "It must have been obvious, I think - and I said this so that you have the point out in the open - because you remember that I said something complementary at the end of her first venture to the witness box when her evidence was, I think, uncontroversial that I formed a view, of her as an impressive witness. But it is not my view that counts, it is your view." (Summing up: 24H-27A) | |||
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2.36
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The judge also commented that perhaps the jury would think that the comments if made, were "perfectly consistent with innocence." and that they did not go any way in proving the prosecution case that Susan May had murdered her aunt. However, he went on to say that if they believed that Mrs May had made the comments, they would want to "consider- whether the fact the defendant denies those remarks and denies the truth of what those witnesses say is of any significance." He suggested that she might have forgotten that she made the remarks. He added however that should the jury consider that she was lying, they should consider why she might be lying in accordance with his previous direction. (Summing up: 27F-28E) | |||
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2.37
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With regard to the financial evidence, the Judge suggested that the jury resist the temptation to examine the evidence "bearing on whether these various payments were legitimately made or not or where the money went. " He went on to suggest that "we resist all of those temptations and assume in the defendant's favour that her assertions as to the financial matters are broadly correct; that she, with her sister initially and latterly more she herself were being treated very generously by her aunt and by her mother; that so far as the children's money was concerned she had their consent to drawing it out of their trust account. " He concluded that the evidence before the court was that the money available in her aunt's accounts had dried up, but that there were other sources available to Susan May should she have chosen to use them. | |||
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3
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DETAILS OF APPEAL | |||
| Leave to appeal was granted and a full hearing was held on 14th February 1997. | ||||
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4
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SUMMARY OF ISSUES RAISED AT APPEAL | |||
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4.1
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Leave was sought to call Professor Bernard Knight concerning the estimated time of death and the circumstances in which the body of the deceased could have been touched so that blood/fluid could get on the hands of the applicant. | |||
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4.2
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Leave was sought to call George Walker to give evidence as to the possible transference of blood/fluid on to the wall of the deceased's bedroom. | |||
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4.3
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Leave was sought to call Dr Henrietta Bullard to give evidence as to the possibility that the applicant could have suffered from traumatic amnesia preventing her from remembering that she had touched the body of the deceased on the morning that she discovered the body. | |||
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4.4
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Leave was sought to call Dr David Oakley to give evidence regarding the hypnosis tests he carried out on the applicant in relation to her actions when she discovered the body of the deceased. | |||
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4.5
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The prosecution failed to comply with their duty of disclosure in not disclosing the witness statement of Karen Bolton and the interviews of Barry Bolton, another possible suspect. | |||
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4.6
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The combined effects of the above is to allow for the possibility that the applicant: (a) touched the body upon its discovery |
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5
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SUMMARY OF OUTCOME OF APPEAL | |||
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5.1
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Further testing on the marks on the wall established that the third mark was not the blood of Susan May, but was very likely the blood of the victim. The appeal was dismissed. In dismissing the appeal, their Lordships did not consider that the non-disclosure of the material relating to Barry Bolton had had any impact on the conviction. In relation to the main thrust of the appeal, the marks on the wall, they held that as the third mark had been shown to be "not the blood of Mrs May, and there was a very considerable probability that it was the blood of Mrs Marchbank", it was right to infer that the other marks were also in the blood of the victim. | |||
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5.2
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The Court of Appeal concluded that there had been a misrepresentation at trial of the amount of blood required to deposit the marks, and that it was now accepted that there was a source of wet blood around when the body was found, in the form of the blood blister on the victim's face. Although they added that the pathologist, Dr Lawlor would have expected to have seen signs that this had occurred, any signs would also have been apparent to the two ambulance men and Mr D.Supt Kerr, who noted that the blood was dry. Two other expert witnesses called on behalf of the appellant, Professor Bernard Knight and George Walker, did not think that such damage would necessarily have been observed. | |||
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5.3
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However the Court of Appeal did not consider that the conviction rested on this alone. They concluded that Susan May had been adamant that she had not touched the body when she had found it. Therefore if the jury accepted these assertions, they could only conclude that the marks on the wall could not have been made on the morning of 12th March, and that therefore they must have been made by Mrs May at the time when Mrs Marchbank died. | |||
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6
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PREVIOUS APPLICATIONS TO CCRC OR HOME OFFICE | |||
| Susan May first applied to the Home Office in February 1997, following her failed appeal. Her case was transferred to the Criminal Cases Review Commission in April 1997. | ||||
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7
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SUMMARY OF ISSUES RAISED IN APPLICATION TO THE CCRC | |||
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7.1
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The following issues have been raised by the applicant: (a) The police fabricated evidence against her in that she denies making the comment to Sergeant Rimmer regarding scratch marks on her aunt's face (b) The jury did not hear all the evidence in regard to the marks on the wall (c) There was evidence not before the jury regarding unidentified footwear marks and fingerprints in the house, and also in relation to a car seen outside the victim's house with three occupants in it, at around the time her aunt was said to have been killed (d) The evidence of time of death was misleading and was not challenged by her defence (e) She was not properly represented at trial |
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7.2
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In addition to the above issues
raised by the applicant, the Commission has identified the following issues:
(a) Evidence relating to the integrity of the forensic evidence at
trial; |
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8
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SUMMARY OF CCRC INVESTIGATION | |||
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8.1
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The Commission has had access
to the following files and documents:
· Original police enquiry file |
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8.2
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The Commission has also undertaken a series of interviews with senior police officers, forensic scientists and scenes of crime officers. In addition the Commission has consulted a pathologist and has arranged for a number of original documents to be examined by document examination specialists. | |||
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9
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MATERIAL CONSIDERATIONS | |||
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9.1
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The Commission has considered all of the issues raised in paragraphs 7.1 and 7.2. In concluding that Mrs May's conviction should be referred to the Court of Appeal, the Commission relies on those issues concerning the integrity of the forensic evidence, the non-disclosure of information and breaches of the PACE Code of Practice. | |||
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9.2
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At appeal, key areas of evidence
were highlighted as the main planks of the Crown's case against Mrs May:
(1) Opportunity |
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9.3
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The Court dismissed items (1) and (5) as having no real significance and suggested that item (3) was of some significance, but stated that items (2) and (4) were the important planks in the prosecution case, in line with the trial judge's description. Item (2), the handprint, was the main topic for consideration at the appeal. | |||
| Forensic Evidence: The Marks on the Wall | ||||
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9.4
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The forensic evidence relating to marks found on the wall next to the bed on which the body was discovered was crucial to this conviction. The thrust of Mrs May's appeal was in challenging this evidence. | |||
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9.5
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At trial, the evidence was that three marks had been found on the wall next to the victim's bed and that those marks were made in blood. It was inferred that this was the victim's blood. In addition, a finger and partial palm print found in the first of the three marks had been identified as that of Susan May. Susan May had said that she had not touched her aunt, but the prosecution said that even if she had, there would not have been enough wet blood around when she had found her, to produce the marks on the wall. Fresh evidence at appeal showed that this was incorrect. | |||
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9.6
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Although it was assumed by the Crown that all three marks were in blood, only one of them, the third in the sequence had been scientifically proven to be human blood. That mark was a smear, containing no fingerprint ridges, near to the light switch. The first two marks had reacted positively to a presumptive test for blood carried out by a forensic scientist, Mr Michael Davie, and had reacted in such a way to chemical finger print enhancement tests, to lead another forensic scientist, Mr Javaid Hussain, to believe that they had been made in blood. Although he said, and continues to say, that this was not proof positive that it was blood, and it is accepted that presumptive tests can sometimes give false positives. The Commission was informed that horseradish sauce, leather and other extracts from plant material, can sometimes give the same reaction. However the Commission is also informed that the appearance of a mark is also taken into account. In effect, this meant that only one of the three marks was definitely human blood, the remaining two were probably blood, but it could not be said whether they were made in human or animal blood. At this stage, none of the marks had been identified as being made with the blood of the victim. | |||
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9.7
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It was the Crown's case that Susan May had deposited these marks when she killed her aunt on 11th March and could not have deposited them the following morning, the 12th March, when she found the body because there had not been enough wet blood around to cause the marks to be made. The defence case was that the marks could be old marks, or marks made in another substance, or even marks made in Susan May's own blood, following a minor accident that had occurred in the room involving a screwdriver. | |||
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9.8
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In dealing with this evidence
in the summing up, the judge said:
"You may think, as I have said, that the hand print is a critical plank, an important plank, in the prosecution case. Mr Carus [defence] invites you to say that really it is quite impermissible to infer that these three marks were put there at the same time. He goes further and says you should not conclude that they are all blood, despite Mr Hussain's evidence; only that near the light switch has been proved to be human blood. What do you think of that, members of the jury? Of course, you must look for strict and sensible proof but you should, I suggest, ask yourselves if whether, as a matter of sensible inference, you can or cannot conclude that really it must follow, that all three marks were put there at the same time and whether you can accept on the basis of Mr Hussain's evidence that all those marks are blood and, as a matter of overwhelming probability, human blood. Does that appeal to you or do you find more persuasive Mr Carus's submission about the scepticism which you should show to concluding that the mark with the hand print is even in blood, let alone that it was placed at the same time as the mark by the switch ? " |
|||
|
9.9
|
At appeal, Susan May pursued the defence that there was a possibility that the first two marks had been deposited at some other time and that they could even have been made in her own blood. Following lengthy discussions between Crown and Defence representatives, further DNA tests were carried out in Germany. By this time, DNA testing had been developed to a degree that enabled sequencing to be carried out on small amounts of material. The result of the testing was that the third mark, the smear near the light switch, could not have come from Susan May, but there was a very considerable probability that it was the blood of the victim, Hilda Marchbank. Testing on the other two marks, including the one with Susan May's finger print, proved inconclusive. The first mark, JHI, the one with the fingerprint, failed to give a positive reaction to a presumptive test. This was the Kastel-meyer test; when a sample gives a positive reaction, this means that the substance could be blood. As this sample gave a negative reaction, no further testing took place. The second mark, JH2, gave a positive but slow reaction to Kastel-meyer test. Further DNA testing of this sample failed to produce a reportable STR profile. It was not possible therefore to say from whom this blood had originated. | |||
|
9.10
|
In referring to these tests,
the Court said:
"They were specific only as to the blood in the smear nearest the light-switch; but all have accepted that the two hand prints must have been of the same blood. The test showed that it was not the blood of Susan May ... Thus far the case for Mrs May was worse than it had been before. It could no longer be suggested that the blood was transferred from her to the wall in the screwdriver episode, two weeks before the death. Her new legal advisers now concentrated on the theory which the judge had left to the jury of blood being transferred to the wall on the morning of 12th March when Mrs May claimed to have discovered the body." |
|||
|
9.11
|
The Commission considers that this conviction therefore rests on the assumption that the substance on the wall, which has Mrs May's fingerprint in it, is the same material as the smear next to the light switch which had been identified as the blood of the victim. There is no scientific basis for this assumption, which is based on the further assumption that all three marks were deposited on the wall at the same time, by Mrs May when she murdered her aunt. Again, there is no scientific basis for this assumption as it is not possible to say how old any of the stains are, or whether they are all of the same age. | |||
|
9.12
|
The Commission considers that this evidence is intrinsically linked to the issue of whether Mrs May touched her aunt or the pillow, and also to the issue of the scratch marks, since it is implied that Mrs May caused the scratch marks when she killed her aunt, thus contaminating her hands with her aunt's blood. This is how it was put to her in her interviews, which were read out to the jury. Given the Commission's conclusions regarding breaches of PACE in questioning Susan May, (paragraphs 9.99 to 9.138), and in the light of the new evidence regarding the scratches comment, (paragraphs 9.83 to 9.98), the Commission has re-examined the evidence relating to the three marks found on the wall. | |||
| New Evidence and Re-assessment | ||||
|
9.13
|
The Commission considers that the inference that all three marks were of the same substance and deposited on the wall at the same time was based on the stated fact that all three marks were found on the wall on the morning of 12th March. The Commission considers that that can no longer be relied on as fact, in the light of new evidence regarding the third mark, which is expanded on in paragraphs 9.15 to 9.54. Unlike the case of the two handprints, there is no reliable evidence to substantiate the Crown's assertions that this mark was present on the wall on the morning of the 12th March. Therefore, it is not possible to say with any certainty that this mark was not deposited on the wall after the body had been moved, or that it was an old mark that had not previously been noticed. Once the link between the handprints and the third mark is broken, there is no evidential basis for inferring that the substance in which all three marks were made came from the same source, and at the same time. | |||
|
9.14
|
The strength and integrity of the evidence regarding the marks on the wall is therefore crucial to this case. The marks were clearly considered to be a key piece of evidence from the start, and indeed, represented the main plank of the case against Susan May. Initially, it was believed that the handprints might produce fingerprint evidence to implicate an unknown intruder. As such, chemical enhancement was carried out in order to enhance the finger marks to enable identification to begin. The third mark, which did not contain any recognisable ridges, was removed from the wall for testing in regard to the source of the blood. That mark was removed from the scene six days after the murder, on the 18th March. Chemical enhancement of the remaining marks commenced on the 19th, and continued on the 26th March. | |||
| Photographic Evidence from the Crime Scene | ||||
|
9.15
|
Still photographs and a video
recording of the crime scene were taken on the 12th March. The "scene
log" shows that the force photographer, Peter Fitton, shot the video
footage. He arrived at 1.29pm and left, with his equipment, at 1.58pm.
The Commission has examined this video recording of the crime scene and
it does not include any footage that records the evidence of any of the
marks on the wall. Mr Fitton was interviewed by the-Commission on 13th
July 1999. He was asked whether it was usual for him to record a crime
scene in his own way, or whether he would be directed as to what aspects
should be recorded. He replied:
"Yes I would be guided by the officer in the case. I would record anything specific that I was asked to record and would zoom in for a close shot. I would also record anything that I noticed which had not been specifically pointed out to me. I would also be left to record, in a murder in a home case, the whole premises. Video recording is used as an aid to briefing and still photography is the main photography to record crime scene detail. I would be given directions by the officer in charge or by the crime scene manager." |
|||
|
9.16
|
Mr Fitton then viewed the video
that he had filmed. He was asked about the various close ups in the film,
e.g. close ups of the body, the kitchen porch lock and a fly-leaflet in
the kitchen. He was asked whether he had been asked to take these close
ups and he replied yes, in relation to the porch lock. He was then asked
whether there was anything else that he could remember that he was specifically
asked to record. He replied:
"No. Had there been anything, I would have recorded it if requested. Had something been noticed after I left, it was open to the crime scene manager to record this by still photography. I could have been called back but this is not normal and did not occur on this occasion. " |
|||
|
9.17
|
The last question put to Mr
Fitton was put to him in his capacity as an experienced force photographer
and, as he is now, a Scenes of Crime Officer:
"A significant feature of this case were marks on the wall to the right of the bed when facing the body. These marks were noted on the day the body was discovered. The marks were described as giving the appearance of blood. Is it reasonable to assume that had these marks been noticed prior to your video recording you would have been asked to record them? " Answer: "Yes." |
|||
|
9.18
|
The Commission is concerned that Mr Fitton was not directed to record the evidence of the marks on the wall. The absence of video footage of what was said to be obvious, bloody handprints on the wall raises some doubt as to whether the marks had actually been noted by anyone by the time that Mr Fitton recorded the film, particularly given the implication of Mr Fitton's own evidence to the Commission that marks of this type would in his experience be sufficiently important to record. | |||
|
9.19
|
Photographic evidence available at the trial did not assist the Commission in trying to clarify whether or not the marks were all on the wall on the morning of the 12th March. The Commission required Greater Manchester Police to produce all the negatives of the photographs taken at the scene on the day that the body was discovered. On examination, the negatives showed that whilst two photographs had been taken, in succession, of the first two marks, there was no photograph at all of the smear nearest the light switch. Neither was it possible to tell at what point in time these photographs had been taken. The third mark was the most important of the three marks in that it eventually yielded strong evidence that at least one of the marks was in the victim's blood, evidence which contributed to Susan May's failed appeal. The Commission is concerned therefore that there is no photographic evidence of its presence on the wall alongside the other marks on the morning of the 12th March. In this connection, the Commission draws attention to the photographer, Mr Naylor's, evidence at Paragraph 9.25 below. | |||
|
9.20
|
The Commission's concerns regarding this are heightened by the fact that there is no record of when, how and by whom Mrs Marchbank's body was removed from the bed and taken into the kitchen, whence it was removed, already in a body bag by the funeral company. In evidence Dr Lawler said that the body would probably have been moved by him and scientific support staff, however there is no actual record of when and how this occurred. The scene log, states that Dr Lawlor, the home office pathologist, arrived at 2.45pm. His report states that he took the body temperature at 3.45pm. The undertakers arrived at 3.36pm but did not enter the house to remove the body until 4.10pm. There is therefore a gap of 40 minutes in this log. Whilst acknowledging that a scene log records who enters and leaves a crime scene, and that it is possible that no one entered or left the scene during that 40 minute period, the Commission is concerned at the lack of information with regard to the moving of the body. The Commission is particularly concerned regarding the absence of evidence relating to the removal of the body, given the evidence at appeal that it was more than likely at that point that wet blood became available, together with the doubts now raised regarding the mark by the light switch. From the records available, it would appear that the body was removed from the bed and taken into the kitchen some time between 3.45pm and 4.10pm. There is no evidence available to show whether the body was put into the body bag in the bedroom or in the kitchen. | |||
|
9.21
|
It is accepted by the Crown that when Mrs Marchbank's body was examined, or when it was moved, her injuries were disturbed in some way so that wet blood had contaminated the area immediately surrounding where her head lay. In the absence of evidence to the contrary, the Commission considers that the possibility cannot be ruled out that the third mark was deposited on the wall after Mrs Marchbank's body had been examined or after it was removed from the bed, either directly from the body itself, or by one of the people who handled or moved the body contaminating their hands or their clothing. | |||
|
9.22
|
In a further attempt to clarify this issue, the Commission has examined the Forensic Science Service files relating to this case, and has interviewed Mr Michael Davie and Ms Joanne Ashworth (nee McCabe) who attended the scene. The Commission has also traced and interviewed Mark Naylor who was working for Greater Manchester Police at the time and who had taken the photographs at the scene. | |||
| Photographer - Mark Naylor | ||||
|
9.23
|
In 1992, Mark Naylor was employed
as a civilian scenes of crime officer by Greater Manchester Police. According
to his statement dated 15th April 1992, on arriving at 24 Tandlehill Road,
he first carried out an examination of the interior and exterior of the
property during which he took possession of a packet of handkerchiefs
from the path verge of the property. He then went back inside the property
and lifted a footwear mark from the entrance porch, using ESLA (Electro-Static
Lift Apparatus). Following that, he took a series of coloured photographs
of the interior and exterior of the premises including photographs of
Hilda Marchbank's body. According to the property register, the footwear
mark, reference no. MSN2 was taken by Mr Naylor at approximately 1200
noon. According to his statement, he began taking photographs after he
had lifted the footwear mark. In evidence he said:
"I was always present either in the house or outside it. I can't actually recall the actual time but I took some round about lunchtime under the instructions of Mr Kerr and then later in the afternoon." |
|||
|
9.24
|
In an internal police memorandum dated 24th June 1996, D. Supt Kerr confirms that there were four rolls of film taken by Mr Naylor at the scene on 12th March 1992. In this memorandum he also indicated that he had examined the scene and that at his direction, Mr Naylor had taken photographs of the deceased in situ in bed when she was partially covered by the duvet. He also stated that "During the course of that day he took a series of photographs at my direction and left the premises with me shortly after the body was removed by the undertakers." | |||
|
9.25
|
Mr Naylor was interviewed by
the Commission on 30th July 1999. He was unable to assist any further
regarding what time the photographs had been taken. However the Commission
considers that the documentary evidence that is available, indicates that
Mr Naylor began taking his photographs after midday, and was still taking
photographs during the afternoon, both before and after the body was moved.
Mr Naylor confirmed that the photographs in the Commission's possession,
and the negatives of those prints, were the same ones that he had taken
at the scene in 1992, and that there was no photograph of the third mark
as it was alleged to have appeared on 12th March. The negatives were contained
in four plastic envelopes and were labeled 2904, 2905, 2906 and 2907.
He confirmed that he had taken the photographs of the two handprints on
the wall. The next photograph on that roll was a close-up of Mrs Marchbank's
left hand. Mr Naylor was asked whether the third mark on the wall, i.e.
the smear, was visible to him on the 12th March when he took the photographs
of the two handprints. His reply is given in full below:
"On 18th March 1992 I returned to 24 Tandlehill Road and took samples marked MSN14 and MSN15. MSN14 related to a mark which appeared to be blood and which was found just to the left of the light switch on the wall and to the right of marks photographed in DMBI and DMB2. I used a scalpel to cut away a thin laver of paint and plaster containing the mark appearing to be blood. This was given the reference MSN14. I also cut away another small piece of paint and plaster as a control sample and this was given the reference MSN15. I have been asked by CCRC whether the mark MSN14 was visible to me on 12th March 1992. I am unable to recall when I first saw this mark. However, it is reasonable to assume that had I noticed this mark on 12th March 1992, or had it been pointed out to me that day, I would have photographed it in the way I had taken photographs of the two marks shown in the photographs DMBI and DMB2. Had I seen the mark MSN14 on 12th March 1992 I would have photographed it even if it had been a very faint mark." |
|||
| Photographic Evidence Available to the Jury | ||||
|
9.26
|
MSN14 was removed for testing, in order to confirm that it was blood and to establish the source of that blood. It was only after MSN14 was removed from the wall that any photographs were taken of all three areas of staining on the wall. Even then, the third area does not show the stain itself, but an area from which the plaster has been removed. All the photographs taken of all three areas of staining together are after chemical enhancement. The only photographs available to the jury were these post-enhancement photographs, together with two, separate close-up photographs of the two handprints, pre-enhancement. No photographic evidence was ever available to the jury showing all three areas of staining together as they were said to have appeared on the morning of 12th March. | |||
|
9.27
|
When witnesses were giving evidence as to the marks on the wall as they saw them on 12th March, they did so with reference to photographs of the marks after chemical enhancement. Although it would invariably be pointed out that the photographs did not represent the marks as they were seen on 12th March, the Commission considers that this could have been misleading and would have affected the jury's ability to properly assess the evidence of the marks on the wall, particularly as the two handprints were much more obvious after enhancement. Part of the Crown's case with regard to this evidence, was that the marks were deposited on the wall, in sequence, as Susan May stumbled out of the room in the darkness having murdered her aunt. The Commission notes that the Crown did not have any photographic evidence in support of that theory, to show how the marks were said to have appeared on the morning of 12th March. | |||
|
9.28
|
The jury were shown two, separate close-up photographs of the handprints in addition to the photographs of the three areas of staining after enhancement. The Commission notes, however, that these photographs did not show a representation of the third mark, as it had been removed prior to enhancement. Some small specks of the mark only, remained on the wall after it had been removed. These were visible on a close-up picture of the area that had not been available to the jury. The Commission had this picture printed from the negatives supplied by Greater Manchester Police. The Commission considers therefore that the jury was not in a position to properly assess the Crown's case that the marks represented a clear sequence of three marks, likely to have been placed on the wall as the killer stumbled out of the room. | |||
| Evidence Regarding Marks on the Wall | ||||
|
9.29
|
According to the scene log, 27 people attended the crime scene on the morning of 12th March. Of these, 17 made formal statements. Of those who made formal statements, only two referred to the marks on the wall D.Supt Kerr and Michael Davie, forensic scientist. The Home Office pathologist, Dr William Lawler, did not refer to the marks in his statement, but his contemporaneous notes do contain a reference, which reads: "? handprint on wall near bed." D.Supt Kerr's statement was dated 13th May 1992. However this statement referred to "marks" on the wall but was not specific as to how many marks. | |||
|
9.30
|
The first people to arrive at the scene were the two ambulance men, Mr Michael Smith and Mr Terence Taylor. They were followed by Detective Inspector David Taylor and PC Roy Kelly. The next person to arrive there was D.Supt. Kerr. All of the above were prosecution witnesses except for PC Kelly. Having examined transcripts of their evidence, the Commission is concerned that it is in parts contradictory, and could have been misleading. | |||
|
9.31
|
The evidence of these witnesses
was relied on by the Crown to show that:
(i) The blood on the victim's face, and on the pillow, was dry when they first arrived on the scene (ii) The room in which the body lay was too dark for Mrs May to have seen her aunt clearly when she found her, so that she could not have been able to see the injuries to her face (iii) That D.Supt Kerr first noticed the marks on the wall when he entered the room and opened the curtains. |
|||
|
9.32
|
The scene log showed that one of the ambulance men had switched on the light in the bedroom before examining the victim to establish that she was dead. It also showed that PC Kelly had switched on the light in the kitchen. The room in which the body lay was entered via the door between the kitchen and that room. Terence Taylor, one of the ambulance men, confirmed in his statement that the other ambulance man, Michael Smith, had turned the light on in the bedroom. It was clear from the statements of both ambulance men that they had entered the room, established that life was extinct, and had then left the room again before Mr Smith radioed for the police stating that there was a suspicious death. Mr Smith said in his statement that they had left the light on and the curtains closed. Mr Smith confirmed in evidence that they had left the curtains closed, but said he could not remember whether they had left the light on. | |||
|
9.33
|
When DI David Taylor gave evidence, the matter of who switched the light on and when became confused. He said that when he entered the room, the curtains were closed and the light was turned off. He then said that someone behind him turned on the light. The Commission notes that this was contradictory to the evidence of the two ambulance men, in that they said that they had gone into the room and turned on the light in order to examine the body, prior to the arrival of DI Taylor. He was Shown a photograph (Exhibit 2,Nol3) and confirmed that that was how the room appeared when he first entered it, and that the curtains were very effectively blocking out the light. | |||
| Detective Superintendant William Kerr (Senior Investigating Officer) | ||||
|
9.34
|
D.Supt Kerr's statement and his evidence
at trial implied that he was the first to notice the marks on the wall.
In evidence he said that he noted the marks after he had opened the curtains
in the bedroom. He said that he did this when he first entered the room,
the implication being that he saw the marks on the wall soon after his
arrival at the scene. D.Supt Kerr also said in evidence that he could
not remember if the light was on in the room when he opened the curtains
and examined the wall. In cross-examination, he was again asked if the
light was on when he first went into the room. He replied: "Yes,
sir. Not at that time, no, sir. Not on my initial entry to the room."
He was then asked whether he had turned it on and said, "I may
have done sir." |
|||
|
9.35
|
The Commission considers this to be a crucial part of the Crown's case and as such, is concerned that D.Supt Kerr's evidence is in direct conflict with the evidence given by DI Taylor with regard to the curtains. Mr Taylor confirmed in evidence that photograph 13, Exhibit No 2, depicted the room exactly as it was when he entered at 10.05pm. The Commission notes that this photograph was taken by Mark Naylor, and that it has already been established that he did not commence his photography until sometime after midday. The photograph therefore depicts the room at a later point in the day. The video film also shows that all the curtains were closed at the time that it was filmed, which was some time between 1.29pm and 1.58pm. If DI Taylor's evidence, that photograph No 13 showed the room as it was when he arrived, is correct, that is clear evidence that the curtains had not been disturbed by the time the photographs were taken. This is in direct contradiction to D.Supt Kerr's evidence that he opened the curtains, albeit partially when he entered the room. The Commission notes that D.Supt Kerr does not say that he closed the curtains again at some later point. | |||
|
9.36
|
In evidence. D.Supt. Kerr also said that he had touched Mrs Marchbank's injured cheek in order to check whether she was still alive. The defence challenged his reason for doing this, as he was not medically trained and suggested that if he had been looking for signs of life, then it would have been more sensible to check for a pulse. D.Supt Kerr's evidence that he had touched the body was relevant to the issue of whether or not there was any wet blood around when the body was discovered. He said that he had touched her because no medical officer had been in attendance and he considered that he had a responsibility to check whether there was anything that could be done for the victim, should she still be alive. | |||
|
9.37
|
The evidence available shows that the ambulance men had clearly established that the victim was dead; the message received by the police was a suspicious death. DI Taylor had been into the room with the ambulance men and according to his statement had informed D.Supt Kerr of the circumstances and of his own actions when D.Supt Kerr arrived at the scene. It can reasonably be suggested that D.Supt Kerr seems to have had a different view of the victim's condition to others in the room. If he did touch her face, the implications for possible contamination of the crime scene cannot be overlooked. | |||
|
9.38
|
Whilst D.Supt Kerr's statement was not specific as to how many marks he saw, when giving evidence 12 months later, he referred to three areas of faint staining. Having re-examined the physical evidence recorded at the time, the Commission concludes that there is no evidence to show with any certainty that when he did notice the marks on the wall for the first time, he noted all three areas of staining, or just the two handprints, which he then directed Mr Naylor to photograph. The Commission also considers that the evidence does not support his contention that he saw the marks when he first went into the room and opened the curtains, and that therefore it is likely that he may have been mistaken with regard to the point at which he first saw the marks. | |||
|
9.39
|
The Commission considers that the discrepancies between these prosecution witnesses as to who switched on the bedroom light and whether the curtains were opened, augments the doubts about D.Supt Kerr's recollection of events, particularly in view of the fact that he said that he saw the marks only after he opened the curtains. The Commission notes with interest that D.Supt Kerr did not at any time direct Mr Fitton to record the evidence of the marks on the wall with his video camera, and neither did he direct Mr Naylor to photograph the third mark. The Commission notes also that Mr Naylor did not commence his photography until after midday, although he entered the house with D.Supt Kerr at 10.32am. The Commission concludes therefore that there is no real evidence to show that D.Supt Kerr noted the marks on the wall earlier than midday, other than his own recollection of events as given in evidence, 12 months later. Given the photographic and video evidence, the Commission considers that the accuracy of his recollection of what he did and saw when he entered the room could now be open to question. | |||
| Michael Davie - Forensic Scientist | ||||
|
9.4
|
The Commission has examined the findings
and evidence of Mr Davie, with regard to the marks on the wall. His first
statement is dated 8th July 1992, four months after the murder. The relevant
passage reads:
"On the wall to the right as I entered the bedroom area I noted
what appeared to be three areas of blood staining in the form of thin
smears. Each of the smears gave a positive chemical reaction for
the presence of blood. On closer examination, two of the bloodstains
could be seen to have patterns typical of fingerprints. There was no
apparent detail in the third stain, this appealing to be a thin smear
of blood." |
|||
| Mr Davie's Scene Notes | ||||
|
9.41
|
In evidence, Mr Davie asked if he could refer to his notes, which he said were made at the time or shortly afterwards. The Commission notes that Mr Davie's notes of examinations at the scene were actually taken by his assistant, Joanne Ashworth. From these and other documents, the Commission has attempted to establish when exactly Mr Davie noted the marks on the wall. The scene notes state that Mr Davie and Ms Ashworth arrived at the house at 12.55pm and entered the house at 1.10pm. The scene log confirms their entry as 1.10pm. The scene log then notes Mr Davie, Ms Ashworth, D.Supt Kerr and a DC Bellini leaving the house at 2.07pm, and Mr Davie and Ms Ashworth re-entering the house at 2.25pm. D.Supt Kerr re-entered the house at 2.56pm. A note in the log timed at 4.20pm says simply "Forensic left house." The Commission assumes that this refers to Mr Davie and Ms Ashworth. There were therefore two periods of time when Mr Davie was in the house: one of 57 minutes and one of 1 hour and 55 minutes. | |||
|
9.42
|
The Commission notes here that Mr Davie was in the house during the time that Mr Fitton was filming his video footage of the scene, and Mr Naylor was taking various photographs of the bed, the body and the rest of the crime scene. It could legitimately be argued that, had Mr Davie noted the marks on the wall during that period, he would have indicated to either D.Supt Kerr, Mr Fitton or Mr Naylor that he had noted the marks, and that all three marks would have been recorded by either Mr Fitton or Mr Naylor. | |||
|
9.43
|
A section of the scene notes is headed "Bedroom/Lounge" and describes the scene around the bed in which Mrs Marchbank's body was found, including a note that a dry flake of blood was present on the pillow of the twin bed next to hers, and that Mrs Marchbank's bed had been moved some 3-4 inches. It also includes a reference to Dr Lawlor taking the body temperature. The Commission notes here that in her notes, Ms Ashworth records the body temperature as 26 degrees, whereas Dr Lawlor's notes and subsequent report notes it as 28 degrees. However, the note of body temperature in Dr Lawlor's notes appears to have been altered from 26 to 28 degrees. Dr Lawlor did not arrive until 2.45pm and, according to his report, took the body temperature at 3.45pm. (The body was moved around 4.00pm). Further, when interviewed by the Commission, Mr Davie said: "When I arrived at the scene I was shown the body, which had not, to my knowledge, been moved. I saw that there was blood on the pillow, but did not concern myself at that point with details relating to the blood-staining. I went on to examine other parts of the property. Going back to the bedroom on closer inspection of the pillow after the deceased had been moved I noted the three small wet bloodstains. I do not know whether they were there when I arrived." The Commission concludes from this that Mr Davie's detailed examination of the "Bedroom/Lounge" area took place after the arrival of Dr Lawlor. The Commission also considers this to be a strong indicator that some of his observations were noted down after the body had been moved. | |||
|
9.44
|
The scene notes for the 12th March consisted of approximately two and a half sides of notes on A4 paper, and one sheet on which was drawn a "scene plan". The only reference in the entire set of notes to the marks on the wall is a note written sideways on, at the edge of this scene plan. This note reads: "*3 areas poss finger/hand prints in blood. KM+ve. Not heavy staining - left for F/P people." The Commission notes here that the "KM+ve " had been added to the note much later by Michael Davie. This is covered in more detail in paragraphs 9.50 to 9.54 | |||
|
9.45
|
Another scene note of a second visit to the house on 17th March , written by Mr Davie and consisting of one half of A4 lined paper, contains a reference to the "blood" on the wall in the bedroom. A telephone note of the same date from Mr Davie's file reads: "suggested that stain nearest light switch is excised on piece of wallpaper and chemical enhancement on remaining stains ". This appears to be the first specific, clearly dated, reference to the smear on the wall, near the light switch. This is also the only record of an instruction to excise the stain for further testing. The Commission notes that, notwithstanding the concerns expressed by various forensic scientists regarding the treatment and/or possible degradation of samples influencing the ability to carry out effective tests, the stain was apparently left on the wall for 6 days before being excised. | |||
|
9.46
|
In an attempt to clarify this matter, the Commission has interviewed Joanne Ashworth. As her scene plan was the only sheet with any reference to the marks, she was asked whether she could remember when she had drawn the plan. She said that she was sure that the plan was drawn whilst the body was still on the bed. She said that she could say this because the notes written beneath the drawing include a detailed description of Mrs Marchbank's body in the bed. However, the Commission notes that at the bottom of this page, there is an additional annotation, which has been written by Mr Davie. This is a different annotation to the one referred to in paragraph 9.44. He could not tell the Commission when he had added this note, but the page is initialed by Mr Davie and dated 12th March (12.3). When asked specifically how she could remember that the note sideways on to the plan, which refers to the marks on the wall, was written before the body was moved, Mrs Ashworth could not point to anything specific, just that she remembered writing it on that day. She did not re-visit her notes at anytime; they were passed on to Mr Davie. She also said that she and Mr Davie did not at anytime, meet to discuss the notes. | |||
|
9.47
|
The additional annotation referred to in 9.46, reads: "NB Small stains not dry". Mr Davie confirmed that this note referred to three small areas of wet blood that he had noted on the pillow under Mrs Marchbank's head. This relates to a discrepancy in Mr Davie's first statement in July 1992, that was corrected by a further statement dated 8th October 1992, and which gives the Commission cause for concern over the accuracy of the notes taken at the scene, on which his first statement was based. In that statement, Mr Davie states "At the time of my examination (ca 1330 hrs) I noted three small bloodstains which appeared to be wet. On subsequent examination this blood appears to have been shed onto the main area of blood staining after that had dried." | |||
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9.48
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Mr Davie later conceded that he must have been mistaken, because the available photographs showed that these wet stains were not present whilst Mrs Marchbank's body was still in the bed, but were present on the photographs taken after the body had been removed. From this, Mr Davie concluded that the blood was most probably shed whilst the body was being moved, and that therefore he could not have seen them when he examined the body at 1330 hrs. This appeared to be the logical explanation, but does give rise to concerns about the accuracy of the rest of Mr Davie's statement, which was based, to some extent, on the scene notes taken by Ms Ashworth. | |||
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9.49
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In his July 1992 statement, he clearly notes the time as 1330; however as stated, the notes indicate that Mr Lawler was present when this examination took place, but he did not arrive until 2.45pm. In his statement, the note of the marks on the wall follows on from the noting of the wet stains on the pillow. If it is accepted that these notes are incorrect, in that the stains were not present on the pillow until after the body was moved, it follows that there must be some doubt as to whether he noted the marks on the wall before or after the body was moved. In addition, the annotation regarding the wet stains on the pillow is alongside the notes on the plan that describe the body in the bed. The Commission notes that Mr Davie has acknowledged that he could not have made that annotation until after the body had been moved. | |||
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9.50
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The reference to the marks written on the scene plan, as stated in paragraph 9.44, included an additional annotation of "KM+ve" in Mr Davie's hand. Examination of the volume of documents in the Commission's possession including a number of photocopies of this plan taken at different points in time, revealed that the notation "KM+ve" had been added at a later date, in fact, in June 1995. The original of this plan was not present in the Forensic Science Service file supplied to the Commission. It was later discovered in the CPS file at Sunlight House in Manchester. It had been removed at the appeal stage and had inadvertently been placed with the CPS papers. | |||
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9.51
|
The Commission considers that annotations
added to contemporaneous notes at a later date will always give rise to
concerns regarding the integrity of the record to which it was added unless
such annotations are clearly dated. In this instance, the Commission was
particularly concerned as it related to a key question, i.e. whether the
marks had been tested at the scene and what test had been applied. In
addition, the integrity of this particular page of notes is key to the
question of whether or not all three marks were noticed on the
morning of 12th March, prior to the examination of the body by
Dr Lawlor. Mr Davie was therefore asked to explain the additional annotation. |
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9.52
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Mr Davie confirmed that he had added the annotation "KM+ve" and that he thought that he had done so at or around the time that he responded to an enquiry from Bindman & Co (representing Mrs May at her appeal) about the KM test and its use at the scene. The enquiry was specifically related to the tests carried out on the marks in the house, and was contained in a letter from Bindman & Co dated 12th June 1995. This was a follow up letter to a previous request for copies of Mr Davie's case notes in April 1994. In response to this enquiry, in June 1995, Mr Davie wrote a letter explaining the test and its use at the scene. The letter is dated 23rd June 1995 and included with this letter was a photocopy of the scene plan. which, as the Commission has already noted, was the only reference to the marks in the entire set of notes. It was at this point that Mr Davie added the annotation to the original, before photocopying it for Bindman's. The Commission is concerned that Mr Davie altered the contemporaneous scene note and then referred to this alteration as part of a response to an enquiry on behalf of Mrs May's appeal. | |||
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9.53
|
Mr Davie was unable to assist the Commission as to when he had added the other two annotations to the scene plan. Copies of the notes however would suggest that these annotations had been added at or around the time that the original note had been made. One of these annotations, at the bottom of the page, reads "NB small stain not dry" and is referred to above in paragraphs 9.47 to 9.49. The other one reads: "Radiator, Towels & Tea Towels neatly folded across top." | |||
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9.54
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The Commission considers that the scene notes, which were subsequently amended in a number of respects, cannot now be regarded as reliable evidence that the note on the plan, which refers to all three marks on the wall, was written while the body was still on the bed and not after it was moved. | |||
| Evidence Relating to the "handprint" Marks JH1 and JH2 | ||||
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9.55
|
In addition to the above, the
Commission has further concerns regarding the integrity of Mr Davie's
records relating to the marks on the wall. In examining other notes contained
on Mr Davie's file, the Commission discovered a General Examination Record
form, (also referred to as a Holab5 Form) relating to the two exhibits
JH1 and JH2. JH1 and JH2 were pieces of plaster with the staining that
had been removed from the wall. JH1 was the mark in which Susan May's
fingerprint had been identified. This form contained details of tests
that had been carried out on the two exhibits. It reads:
"Each paper fold contains small amount of paint flakes stained brown. V.weak KM+ve reaction. To grouping for pptn - No result obtained. Totally insoluble - seems reasonable after chemical enhancement." |
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9.56
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Records show that JHI and JH2 were removed from the wall by DS John Hooley, now retired. He removed them from the wall on 29th April 1992. DS Hooley did not make a formal statement; instead, he noted the fact that he had removed JHI and JH2 in his pocketbook. Tests were conducted on these exhibits on the same day that they were removed from the wall. The Commission note, however, that the date on the General Examination Record in relation to these exhibits was 29th April 1994, not 29th April 1992. Mr Davie was asked to explain this and said: "I am quite sure that this is a clerical error on my part. I am quite sure that the notes relate to work done in 1992. To the best of my knowledge no work was carried out on the case by me in 1994." The Commission noted that the form used had a reference in the bottom right hand corner: FSS-CHOR-TF-093, and made enquiries of Dr Robert Bramly of the Forensic Science Service. Dr Bramley was able to establish that the form was not in use in 1992, and that it had first appeared on other Chorley files in November 1993. From this Dr Bramley concluded that for some reason the form had been completed retrospectively. | |||
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9.57
|
The Commission interviewed
Mr Davie a second time and asked him to explain why the form had been
completed retrospectively. His response was:
"I suspect that the 1994 date is in fact the correct date when the notes were made as part of a response to Bindman and Co. We copied a great deal of material for them. I would have made it by reference to the blood grouping summary sheet, which was completed at the time of the examination on 29.4.92. The purpose of making it was to complete my section of the file that related to the examination of items from the scene. I do not know whether I copied this form to Bindman's." |
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9.58
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The Commission understands from this, that at the time of his examination of JH1 and JH2, Mr Davie failed to complete a General Examination Record. The "Blood Grouping Summary Sheet" on Mr Davie's file, to which he refers, does not contain the same information as is written on the examination record. The summary sheet has the date on which the tests were undertaken, the reference JHI and JH2, a description of the items "blood flakes"; the letters NR in the column headed Ppn and a comment "completely insoluble". The General Examination Record therefore contains a great deal more information regarding the exhibits, including a precise description of how they were packaged, the colour of the stains, and the fact that the KM reaction was very weak. It also includes a comment regarding the chemical enhancement. The Commission has received copies of the records from the blood-grouping laboratory at Chorley. These are the records that record the blood-grouping tests carried out on these exhibits on 29th April 1992. A further discrepancy in the recording of these exhibits occurs on those records. On the sheet, they are clearly recorded as "Wallpaper". DS Hooley, who removed them from the wall, recorded them as "plaster". Mr Davie describes them on his examination record (referred to in paragraphs 9.72 - 9.73) as "paint flakes". This additional discrepancy augments the Commission's concerns with regard to the recording of the examination of these exhibits. | |||
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9.59
|
A note at the bottom of the Blood Grouping Summary Sheet in Mr Davie's file, states that it had been copied to the defence in September 1994 (9/94), and this is confirmed by a letter from Mr Bindman to Mr Davie dated 23rd September 1994, in which he thanks Mr Davie for his notes, and his letter dated 14th September 1994. | |||
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9.60
|
The Commission is concerned that this important document was completed retrospectively, and has difficulty in reconciling the information written on the form with the content of the form from which that information was said to have originated. As read, the form gives the impression that the items with which the form is concerned, are visible to the examiner at the time that the form has been completed. However, the Commission has established that on 29th April 1994 JHl and JH2 were stored in the secure property store at Oldham Police station and had been there since they had been returned from the Chorley laboratory on 9th July 1992. They remained there until D.Supt Kerr removed them on 6th October 1994. He then kept them in a locked filing cabinet until he passed them on to Timothy Clayton, another FSS scientist on 5th January 1995. The Commission has not been given a satisfactory explanation as to why the General Examination Record relating to these two exhibits was not completed at the time at which they were examined in April 1992 and considers that there has to be some doubt about the integrity of this record, which further undermines the overall integrity of this area of evidence. | |||
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9.61
|
The Commission is also concerned about the storage of these exhibits between 9th July 1992 and 5th January 1995 (see paragraph 9.60). After the 5th January 1995, they were in the possession of the FSS and were stored in a freezer at the FSS laboratory in Whetherby. Mr Kerr informed the Commission that a scientist had advised him that they did not need to be frozen. He did not name that scientist. However, the Commission was informed by Timothy Clayton that this would be so because the stains were dry, and that the fact that they were not frozen would not necessarily affect the reliability of test results. However the Commission notes also that the stains remained on the wall in the bedroom for almost seven weeks before DS Hooley removed them. Again, given the risk of possible contamination, the Commission is surprised that two such important exhibits were not retained at the laboratory at Chorley where they were first sent for testing by Mr Davie. | |||
|
9.62
|
When testing was carried out
on these two exhibits at the appeal stage, JH1, the one with the identifiable
fingerprint, gave a negative reaction to the presumptive test for the
presence of blood. No further testing was conducted on this exhibit. It
cannot, therefore, be shown beyond doubt to be blood. The other mark,
JH2, gave a positive, but slow, reaction to the presumptive test. DNA
testing carried out on JH2 failed to produce a reportable result and this
was the joint opinion of both the Defence and Crown scientists. However,
Professor Brinkman, for the defence, included this result in his table,
which was picked up by Crown Counsel, and referred to in the respondent's
skeleton argument. It gave a reading on one locus, (Fl3B), on the DNA
structure consistent with the blood of Mrs Marchbank. However, both scientists
agreed that this reading was not reliable and therefore not a reportable
result. In his report, Professor Brinkman said:
"A critical assessment of the results obtained in the systems FES and Fl3B leads to the conclusion that the results in these systems cannot be taken into consideration. This is so because weak, unspecific, ladder bands were observed in the PCR negative control for FES and in the extraction negative control for F13B. These results, however, are unspecific and not indicative of contamination. Therefore only the results obtained in the systems THOI and VWA can be considered with certainty." |
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9.63
|
The Crown scientist, Timothy
Clayton, Forensic Science Service in a statement dated 6th November 1995
said:
"In his summary table, he [Professor Brinkman] enters results for the FES and F13B loci. In his conclusion, he adds, however, that "only the results obtained at THOI and VWA can be considered with certainty". I concur with this statement and reiterate that in fairness to the appellant, the prosecution should not seek to rely on results at the FES and F13B loci." |
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9.64
|
Dr Chris Maguire, of the FSS has confirmed that the FSS does not use locus F13B. He has informed the Commission that the PCR negative control and the extraction negative controls should always give negative readings. If DNA is detected, the results at those loci are negated and would not be considered reliable. | |||
|
9.65
|
The Commission notes that,
prior to the testing taking place, Dr Maguire and Mr Clayton had expressed
concern regarding the possibility that the DNA amplification processes
carried out in Germany, could pick up on DNA on the wall, underlying the
mark:
"…the STR process carried out by the FSS requires that we confirm the presence of at least 1 nanogram of target DNA in the sample under test. This, coupled with the relatively low number of amplification cycles, serves to limit the sensitivity of the technique. This ensures that the STR result is obtained from the crime stain material under investigation, not any adventitious DNA which may have been present in the sample. Such contaminating DNA can be present because the environment contains low levels of DNA in the form of sweat, skin cells, dust etc. In this particular case, I understand that the samples of paint were taken from around light switches. It is feasible therefore that the background surface may contain very low levels of contaminating DNA from Hilda Marchbank or other occupants of the house. If the DNA amplification technique were to be "pushed" by increasing the number of amplification cycles, it may be postulated that the STR profile obtained could actually be generated from a low level of contaminating DNA, rather than from the intended target DNA in the crime stain. Under those circumstances it is possible for one to envisage a number of scenarios:
(ii) The blood in the crime stain IS NOT that of Hilda Marchbank but the STR result is obtained from DNA present on the paint surface from around the light switch. The result would then be a false inclusion |