Untitled Document

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."

CRIMINAL APPEAL ACT 1995

STATEMENT OF REASONS

for a decision of the
CRIMINAL CASES REVIEW COMMISSION

CRCC REF: 00198/97/May

To: The Court of Appeal
Royal Courts of Justice
Strand
LONDON
WC2SA 2LL

Director of Public Prosecutions
Crown Prosecution Service
Attn: Richard Pierce
Departmental Records Officer
CPS Headquarters
DX300850 Ludgate Hill

Applicant: Susan Hilda May (RE0252)
H Wing
HMP Durham
Durham
DHl 3HU

Applicant's Representative:

Campbell Malone
Stephensons Solicitors
230 Chapel Street
Salford
M3 5LE

	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. *A summary of the Commission's powers to review convictions and sentences is set out in the annex to this statement of reasons.

DETAILS OF CONVICTION

Date of Conviction:
Court:
Charge:
Sentence:

5th May 1993
Manchester Crown Court
Murder
Life

SUMMARY OF PROSECUTION AND DEFENCE CASE

Introduction

2.1

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.

2.2

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.

2.3

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.

2.4

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.

2.5

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.

2.6

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.

2.7

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.

2.8

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.

2.9

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.

2.10

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

2.11

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.

2.12

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

2.13

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.

2.14

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.

2.15

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.

2.16

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.

2.17

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

2.18

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.

2.19

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.

2.20

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.

2.21

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

2.22

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

2.23

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

2.24

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

2.25

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

2.26

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.

2.27

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

2.28

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

2.29

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.

Evidence of Delryse Oakley and WPC Roberts

2.30

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.

Summing Up

2.31

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.

2.32

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).

2.33

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)

2.34

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)

2.35

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)

2.36

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)

2.37

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.

DETAILS OF APPEAL

Leave to appeal was granted and a full hearing was held on 14th February 1997.

SUMMARY OF ISSUES RAISED AT APPEAL

4.1

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.

4.2

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.

4.3

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.

4.4

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.

4.5

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.

4.6

The combined effects of the above is to allow for the possibility that the applicant:

(a) touched the body upon its discovery
(b) contaminated her hand(s) with blood/fluid
(c) transferred some or all of this substance onto the bedroom wall
(d) could not fully remember touching the body of the deceased, and,
(e) someone else may have committed the murder

SUMMARY OF OUTCOME OF APPEAL

5.1

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.

5.2

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.

5.3

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.

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.

SUMMARY OF ISSUES RAISED IN APPLICATION TO THE CCRC

7.1

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

7.2

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;
(b) Non-disclosure of information relevant to disputed evidence of a remark made by Mrs May to Det Sgt Rimmer about scratch marks;
(c) Breaches of Code C of the Police and Criminal Evidence Act 1984.

SUMMARY OF CCRC INVESTIGATION

8.1

The Commission has had access to the following files and documents:

· Original police enquiry file
· Original Enquiry Holmes Database
· CPS Case file
· Solicitor's file
· Full Court Transcripts
· Forensic Science Service Files

8.2

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.

MATERIAL CONSIDERATIONS

9.1

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.

9.2

At appeal, key areas of evidence were highlighted as the main planks of the Crown's case against Mrs May:

(1) Opportunity
(2) Marks found on the wall next to where the body had been found, which appeared to be in blood, and one of which contained a finger and partial palm print identified as that of Susan May
(3) The appearance of a burglary that had been faked
(4) The comment made to Sgt Rimmer regarding scratches
(5) Lies told by Mrs May regarding her relationship with Christopher Ross and thehandling of her aunt's finances

9.3

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

9.4

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.

9.5

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.

9.6

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.

9.7

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.

9.8

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."

9.48

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.

9.49

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.

9.50

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.

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.

9.52

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.

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."

9.54

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

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."

9.56

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.

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."

9.58

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.

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.

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.

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."

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."

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:

(i) The blood in the crime stain IS that of Hilda Marchbank, but the STR result is generated from contaminating DNA from another source. The result would then be a false exclusion.

(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 if the contaminating DNA had come from Hilda Marchbank.

9.66

The PCR technique used in Germany was not pushed beyond the 28 amplification cycles used by the FSS. The Commission has been informed therefore that the FSS scientist involved in the tests was happy that the results on all samples were accurate, representing the appropriate bodily fluid stain and unlikely to have arisen from any underlying DNA.

9.67

Therefore, the outcome of the testing at appeal stage was that JH1 could not be shown to be blood, and JH2, whilst giving a positive reaction to a presumptive test, showing that it could be blood, produced no reportable DNA profile.

Evidence as to the Age of the Marks

9.68

The Crown's case was that the marks on the wall represented a distinct sequence of three depositions of blood on the wall that occurred at the time of the killing. Evidence was adduced that there were no other blood marks found anywhere else on the wall. Mavis Brady, a woman who was employed as a cleaner gave evidence that she cleaned Mrs Marchbank's house once a week, for two hours on a Wednesday. In evidence she said that she would clean marks of walls if she saw them, and that she could not remember seeing any on Wednesday 11th March. The Commission considers that in summing up her evidence to the jury, the judge may have inadvertently lent more weight to her evidence in this regard than he should have. In summing up her evidence he said: "She noticed no marks on the wall although she entered this room on that day. She thought that if there had been any such marks she would have seen them and had a go at getting them all off, which she had previously done with other marks or of tea stains." Mrs Brady did not in fact say that if there had been any mark she would have seen them, she said "If I had seen any, I would have had a go at trying to get them off."

9.69

At appeal, the respondent's skeleton argument, prepared by an experienced QC, contained a reference to Mrs Brady's evidence which strengthened it even further "Mrs Brady, ... said that she had cleaned the wall on the afternoon of the 11th March and had then found no marks there and that any marks which might have been present would have been cleaned off by her." The Commission considers that if the trial judge and a QC could so have misinterpreted Mrs Brady's evidence, then so too could have the jury, especially in the light of the judge's misrepresentation of her evidence in his summing up, thus unfairly impacting on their assessment of the possibility that the marks on the wall could have been old marks.

9.70

In his statement, Mr Davie referred to another bloodstain that he discovered on the kitchen wall, a few feet along from the other marks. The Kitchen wall was in effect an extension of the bedroom wall on which the handprints and the smear had been found. This mark was not noticed until a third visit he made to the crime scene on 26th March 1992. In his statement, he refers to the bloodstain, behind the radiator, as not being linked to the crime, because there were towels lying across the top of the radiator which had been there at the time of the murder, and so the stain could not have been deposited then. It was accepted therefore that this bloodstain pre-dated the murder.

9.71

This mark gave a positive chemical reaction for the presence of blood, but owing to its degraded state, could not be tested further and so it was not known whether it was human or animal blood. This exhibit was listed on the unused exhibit list as "Paint scraping wall in kitchen". The presence of this additional bloodstain was not made known to the jury. From the information on the unused exhibits list, it was not identifiable to the defence as a bloodstain. It was however referred to in Mr Davie's statement, but not as MJD28. It was also referred to in the statement of Wilf Basley, another forensic scientist who carried out tests on MJD28 in an attempt to establish whether it was human or animal blood. He was unable to do so. The existence of this additional bloodstain was not explored before the jury. Mr Davie did not refer to it in his evidence. The only reference to it was during Mr Basley's evidence when it was referred to briefly as a "swabbing" from the kitchen.

9.72

The Commission considers that this additional bloodstain is evidence that blood had somehow been deposited on a wall at 24 Tandlehill Road at some other time, prior to the murder. This evidence, had it been explored before the jury, could have lent weight to the defence case that the marks on the bedroom wall could be old marks. Knowledge of this further stain could also have undermined further the evidence of Mavis Brady, the cleaner. Information regarding a fourth bloodstain, accepted by all as unconnected to the murder, could also have undermined the prosecution's argument that the marks on the bedroom wall obviously represented one sequence of depositions.

9.73

Mrs May has suggested that there were in fact two additional marks, on the kitchen wall. This is not the case. Only one bloodstain was found on the kitchen wall, and that was MJD28. The confusion has possibly arisen from the way in which the exhibit is referred to in Mr Davie's report "A single small bloodstain was found behind the radiator in the kitchen, by the door into the bedroom area." There was no reference to it being MJD28. Wilf Basley, in his statement, refers to MJD28 as "paint scrapings from wall above radiator in kitchen." From this, a belief appears to have arisen that there were two stains, one above, and one behind the radiator. The evidence in the Commission's possession would indicate that there was in fact only one stain, behind the radiator.

Summarv Conclusions Regarding the Forensic Evidence

9.74

The Commission considers that this evidence is crucial to reviewing the safety of this conviction. The Commission considers that much of the value placed on this evidence by the Crown, relies on the assumption that all three marks were deposited on the wall at the time that the killing took place, and that all three marks were made in the victim's blood. This was inferred at trial from the evidence that all three marks were noted by scenes of crimes officers on the morning of 12th March, and was accepted at appeal by virtue of the fact that the third mark had been shown to be the blood of the victim. The Commission considers that the inference, and ultimate acceptance of this as fact, was based on the combined evidence of D.Supt Kerr and Mr Davie. The new evidence, together with a re-examination of all the evidence available at the time, leads the Commission to the conclusion that the reliability of their evidence must now be regarded as open to question.

9.75

The Commission considers that the evidence now, suggests that there is a possibility that the third mark was deposited on the wall later in the day after the body was moved, or that it was an old mark that has not been noticed previously. From this the Commission concludes that the link between the third mark and the two handprints cannot be sustained, and that therefore the inference that all three are in the same substance cannot be sustained. The possibility that the handprints, even if they were in Mrs Marchbank's blood, were old marks, or that Mrs May did touch her aunt or the pillow when she found her, still remains. The Commission considers that had the jury had the benefit of this evidence, they would not have been able to infer that the marks could only have been deposited on the wall when Mrs Marchbank was killed. Particularly as at the time of the trial, it had not been proven that any of the marks were in the victim's blood, and that only the smear by the lights switch had been shown to be human blood.

9.76

The Commission notes here also that the judge commented to the jury that he could not imagine how handprints in animal blood could have got on to the wall, and then commented that it was perhaps an irrelevant and inappropriate comment for him to make. Susan May was known to have prepared food in the house, and in fact, a paper bag, containing meat scraps and tea bags was found in the kitchen. It appears on the scene note prepared by Javaid Hussain on 24th March 1992. He notes that the bag contained meat scraps and tea bags and that it gave a positive reaction for the presence of blood. When he was interviewed by the Commission, he said that he did not carry out any further tests on the bag, but had advised the Senior Investigating Officer to consider submitting it to the laboratory for further tests. The bag, was duly submitted on a Holab3 form and was received at Chorley Laboratory on 26 March. A note on the form indicates that it was brought back from Oldham by Michael Davie. Instructions on the Holab form included "Establish whether marks on outside of bag are blood and what are contents of bag." The Commission can find no corresponding examination record to indicate that any such tests were in fact carried out on the bag. When interviewed, Mr Davie confirmed that no further tests had been carried out.

9.77

The Commission considers that this exhibit may have yielded evidence that could have assisted the defence case at trial, namely to suggest an alternative source of the blood on the wall. If the blood on the paper bag had been shown to be animal blood, as seems likely given the contents of the bag, it could have assisted the defence case that the two hand print marks on the wall could have been in animal blood. The fact that it was submitted to the laboratory would suggest that initially, it was thought to be of some possible significance to the investigation. The Commission is concerned that there is no record of what happened to this exhibit once it was received at the laboratory. There is no official record of the decision not to carry out any further tests, contrary to the instruction on the form.

9.78

The Commission is also concerned that the way in which this exhibit was recorded resulted in its possible significance being overlooked by the defence, in that it was listed on the unused exhibits list simply as "Craftsman Baker Paper Bag", with no reference to its contents or the fact that it was bloodstained.

9.79

In addition, an item of Susan May's clothing had been tested for blood and was found to have a blood stain on it, which was identified as bovine in origin. Whilst this dress was not said to have been worn by Mrs May at the time of the murder, it is evidence to show, that it is possible for blood stains to exist in the home that are not human in origin, and which, presumably, originated from the preparation of meat for the purpose of human consumption. This dress was referred to in Michael Davie's statement, and was included on the exhibit list simply as "Dress". Again, the possible significance of this exhibit appears to have been overlooked by the defence.

9.80

In addition to the lack of hard evidence regarding the presence of the third mark on the wall on the morning of 12th March, the Commission is concerned about the accuracy and integrity of the scene notes and subsequent statements in relation to this evidence. The fact that original contemporaneous notes have been amended calls into question the reliability of those original notes. In particular, it inevitably raises doubts about the certainty that the note regarding the three marks on the wall, written sideways on to the scene plan, was written whilst the body was still in the bed, or after it had been moved. The additional notes added to the scene notes by Mr Davie appeared at first to indicate that at some point, some discussion took place between Mr Davie and Mrs Ashworth, in order to confirm their records of the scene examinations. However Mrs Ashworth has told the Commission that this is not the case.

9.81

The Commission is also concerned that an important forensic examination record relating to key exhibits was completed retrospectively, some two years after the testing of those exhibits took place. The fact that these exhibits formed part of the main plank of the prosecution's case augments those concerns.

9.82

The Commission therefore concludes that the reliability of this evidence is substantially undermined, thus giving rise to serious concerns regarding the safety of this conviction, given the weight that this evidence held in terms of securing it.

The Comment made to Sergeant Rimmer

The Evidence as to the Comment Made

9.83

According to Detective Sergeant Rimmer and her colleague, Detective Constable Paul Ogden, Susan May made the following comment on 18th March 1992 as she left Oldham Police Station, where she had been having her finger prints taken for elimination purposes: "Do you know the scratches on my aunt's face, can they get stuff from down your fingernails at forensics?" According to DS Rimmer and PC Ogden, they immediately went and informed the SIO, Detective Superintendent William Kerr, who instructed Sgt Rimmer to make a note of it in her pocket book. She did make an entry in her notebook and this entry was signed by DC Ogden. The Commission has been unable to examine DS Rimmer's pocket book owing to the fact that the pocket book went missing, at or around the time of the trial. Photocopies of the relevant pages were available at the trial and as such have been examined by the Commission. No entry was made on the HOLMES database regarding this alleged comment at that time. The correct major incident room procedures regarding the reporting of this new information by DS Rimmer were not followed and in consequence, no entry was made. Neither was there any reference to this information in the policy book. Mr Kerr confirmed, when interviewed by the Commission that an entry should have been made on Holmes. (See paragraph 9.15).

9.84

At trial, the defence case was that DS Rimmer and DC Ogden had fabricated this evidence. DS Rimmer had been assigned as bereavement officer and had been instructed to obtain background information regarding Mrs Marchbank and the family in general. She and DC Ogden had a number of "informal" conversations with Susan May during, which both officers made notes. Susan May stated that she recalled that, during one of these informal conversations that she had had with Sgt Rimmer, she had asked whether or not it would be possible for any forensic evidence to be obtained from beneath her aunt's fingernails. She denied that she had asked the question as related by Sgt Rimmer or that that conversation had taken place at Oldham police station. Susan May's daughter, Katy May was called as a witness for the defence. She had been present at the time at which the comment was alleged to have been made, and gave evidence that she had not heard her mother make any such comment.

9.85

The Crown's case at trial was that this comment had been made at a time when Susan May could not possibly have known of the existence of the scratch marks on her aunt's face unless she was the murderer. Evidence was adduced in support of this in that the Crown said that Mrs May would not have been able to see the scratches in the dim light of the room at the time that she had found the body. The Crown also stated that when Mrs May had attended the mortuary to formally identify the body, it was positioned in such a way that she would not have been able to see the scratches. It was also stated that there had been no mention made about the scratches in the media coverage of the case. In answer to questions from Defence Counsel, DS Rimmer stated "I knew that we had never mentioned scratches on her aunt's face." To the following question, "Why is it such a startling thing for her to say? Her aunt's face had given many people the impression it's got lots of blood on it? " She replied "But we had never said how the blood was on the face." Again, later, she said "I know I hadn't said anything to her about the scratches on her aunt's face and that's why I went to Mr Kerr to see, in fact, if there had been anything said whatsoever through the press releases or any other way that she could have found out about the scratches on her aunt's face." DC Ogden, in his evidence stated that "The details of what she had said were not known to anybody else."

9.86

In his summing up, the judge said "The crucial underlying fact is that piece of the prosecution evidence is designed to prove that outside a small number of people no-one knew about the scratches and Mrs May herself told you that she certainly did not. I suppose you ought to bear in mind the possibility that perhaps she was mistaken; perhaps she did know, and had forgotten that she knew. You approach the matters on the basis that if the prosecution's evidence established that she accepts that she did not know about these scratches then if she made this remark, how come that she made it?"

9.87

The Commission has been unable to examine DS Rimmer's pocket book. However, the Commission was able to obtain DC Ogden's pocket book covering same period. His entry for the 18th March 1992 is virtually the same as DS Rimmer's but does not contain the verbatim record of what Mrs May was alleged to have said. Instead, the final entry for that date reads: "Notes as DS Rimmer. 6pm off duty." With regard to DS Rimmer's entry, the Commission has been able to examine a photocopy of the relevant pages, and makes the following comments. There is no reference in the pocketbook as to when the entry was made, and there is no mention within the entry of the fact that she had reported the comment to D.Supt Kerr.

9.88

Further examination of DC Ogden's pocketbook revealed an entry dated 16th March 1992, which reads "To 42 Dogford Road Royton speak to Anne Mellor and Susan May informed re cause of death bruising on head hand over mouth". The evidence at trial was that the detail of the injuries on Hilda Marchbank's face, and how those injuries had occurred had not been discussed with Susan May or related publicly in the press coverage. The Commission considers that the entry in DC Ogden's pocketbook, in particular, the "hand over mouth" reference, clearly indicates that some discussion had taken place with Susan May regarding the injuries to her aunt's face. It is not possible to say from the entry, how detailed that discussion was. However it is clear that some information was imparted by the police to Susan May, which indicated that the murderer's hand had been used to exert force on the victim's face. From what was said, Mrs May could have assumed that her aunt's face had been scratched, or at least believed it possible that something could be under the murderer's fingernails. The Commission also considers that, given the comment regarding the hand over the mouth. it is possible that during this discussion, some specific reference to scratches could have been made. The Commission notes also that, during her interviews, Susan May repeated a number of times that Sgt Rimmer had told her that her aunt's face was covered in blood.

9.89

The value of this evidence to the Crown's case was that it was said that Susan Mav could not possibly have known about the scratches at the time that she was alleged to have made the comment, unless she had killed her aunt. In denying that she made the comment, Susan May said that she didn't know about the scratches, however the Judge directed the jury to consider the possibility that she had heard about them but had forgotten that she had been told about them.

9.90

The Commission considers the entry in DC Ogden's pocketbook to be a clear indication of that possibility. The Commission considers also that there is a possibility that Mrs May might have said that she did not know about the scratches, in support of her denial that she had made the comment. DC Ogden's pocketbook was not disclosed to the defence. The Commission considers that had the defence been aware of this entry, it could have been of considerable assistance in rebutting the suggestion that Susan May could only have known about the scratches if she had killed her aunt.

The Significance of the Alleged Comment to the Police

9.91

D.Supt Kerr gave evidence regarding the instruction he gave to DS Rimmer to make a note of the comment in her pocketbook, and what he expected would have happened following that.

"I instructed her I think to make a notebook entry. Certainly she recorded that information on the action report. In other words, she would contemporaneously record that. I would then receive a typed copy of that action once it had been input into the Holmes system, and I would sign that action."

He said that he had instructed her to make a note in her pocketbook because he thought that it was relevant information, and added:

"Well, I am aware that Sergeant Rimmer would prepare a report for me, which we refer to as actions, which would subsequently go through a vetting procedure within the murder control room. It would eventually arrive for my perusal and signature for any other action that I wish to be taken in respect of Sergeant Rimmer's information. "

9.92

Under re-examination by Prosecution Counsel, D. Supt Kerr explained the Holmes system to the court following which, Counsel asked him what he would expect to happen in terms of Holmes, after DS Rimmer had told him about Mrs May's comment:

"I would expect the full content of Sergeant Rimmer's information to be recorded by hand by herself or possible, DC Ogden if he was present on the enquiry and then input into the Holmes system and be available in typescript if necessary."

9.93

D. Supt Kerr was requested by the defence to make enquiries regarding the Holmes record of the comment made to DS Rimmer, and was recalled to give further evidence. Further examined by Prosecuting Counsel, D.Supt Kerr stated that his enquiries had revealed that there was no record in the Holmes system in relation to the comment made to DS Rimmer, that he would not expect there to be, and that he understood why there was no record made. The Commission notes that this is in direct contradiction to what he said when he first gave evidence. Under cross-examination he was asked to confirm this and he did so. The trial Judge, Mr Justice Hutchinson asked him to explain why he would not expect there to be a record on the Holmes system. D.Supt Kerr:

"Well, in relation to, actions do exist on the Holmes system for Sgt Rimmer to interview Susan May and the larger Marchbank family and May family in relation to the antecedents of Hilda Marchbank because Mrs May was the last person to see Mrs Marchbank alive and subsequently found her body the next day. There is no specific reference on the Holmes system to the conversation Sgt Rimmer related to me in relation to the scratch marks comment made by Susan May on the 18th March. When I originally gave evidence I think I said at that time that I thought I had given Sgt Rimmer an instruction to make a pocketbook entry about that. I have since seen the pocketbook entry. I know she did make a pocket book entry, and under those circumstances I would not expect that to be on Holmes, but the information is contained on Holmes in the statement of Sgt Rimmer. As long as the information is somewhere in the system - I'm losing now sir."

Mr Justice Hutchinson:

"So for some reason you would not expect there to be any action?... On the Holmes computer. Why?"

D. Supt Kerr:

"Because subsequently or I knew that Sgt Rimmer would subsequently input that action into the Homes system by way of statement form. I knew that information would not be lost on Holmes system. It had to be recorded in Holmes and it would be recorded when Janet Rimmer's statement was subsequently typed into the Homes."

9.94

The information was not entered onto the Holmes system until DS Rimmer made her statement on 27th April 1992. The Commission raised this question with Mr Kerr and asked him whether he would have expected her to have submitted the information to the incident room using normal incident room procedures prior to this. His response was:

"Looking at it from a purist point of view I should have ensured this information was there and then recorded on Holmes. "

9.95

The Commission considers therefore, that D.Supt Kerr's evidence at trial in this regard was inaccurate, and that he may, therefore, have inadvertently misled the Court with regard to what should have happened to the information that Sgt Rimmer had given him. The Crown's case was that this evidence was a strong indicator of Mrs May's guilt. The Defence case was that Sgt Rimmer and DC Ogden had fabricated this evidence. How the information was dealt with once it came to the attention of the Senior Investigating Officer was an important factor in establishing the integrity of this evidence, and the status that it held in relation to the enquiry. The Commission considers that the admission now made by Mr Kerr that it had not been properly recorded on the Holmes system could have assisted the defence in showing that the alleged comment by Mrs May did not have the level of evidential significance that the Crown said it did. The Commission considers also that it may have lent some weight to Mrs May's assertion that an earlier comment that she had made regarding her aunt possibly having forensic evidence from her attacker on her hands had been misinterpreted. D.Supt Kerr's evidence incorrectly left the Court and the jury with the impression that it was perfectly in order that the information had not been recorded on the Holmes system, thereby undermining the defence's arguments regarding the significance and integrity of this evidence.

Breach of PACE Code C, Paragraph 11.13

9.96

In addition to the above concerns, the Commission considers that there was a clear breach of paragraph 11.13 of Code C of PACE in the way in which this evidence was dealt with once Mrs May became a suspect on 23rd March 1992. This paragraph, which is present in the 1991 version of the code in force at the time of Susan May's arrest, requires that "a written record shall be made of any comments made by a suspected person, including, unsolicited comments which are outside the context of an interview but which might be relevant to the offence. Any such record must be timed and signed by the maker. Where practicable the person shall be given the opportunity to read that record and to sign it as correct or to indicate the respects in which he considers it inaccurate. Any refusal to sign should be recorded."

9.97

At the time that the comment was made, on the 18th March, Susan May was not annotated as a suspect, but the fact that she had made the comment put her under suspicion and, according to Mr Kerr, is what triggered his instruction to DS Rimmer to take a witness statement from her, which she duly commenced the following day, the 19th March. The Commission considers that Susan May was clearly a suspect at the time that her witness statements were taken (see paragraphs 9.109 to 9.112). Had Mrs May been treated as a suspect, there would have been a requirement for DS Rimmer to have cautioned and then shown Mrs May the written record so that she could have denied and/or corrected it at the earliest opportunity. In any event, after her arrest on 30th March, when the comment was eventually put to her, there was a failure by the police to follow the Code of Practice and show Mrs May the pocket book entry. When the comment was eventually put to her in interview, she immediately denied it and asked whether or not it had been written down anywhere. The Commission considers that this was yet another opportunity for DS Rimmer's written record of this comment to have been shown to her.

Summary Conclusions

9.98

The Commission can find no evidence to substantiate Mrs May's claim that DS Rimmer fabricated this evidence. However, in the light of the new evidence, the Commission considers that it is possible that Mrs May's version of this conversation did take place given the indication of the topic under discussion as indicated by the entry in DC Ogden's pocketbook. The Commission further considers that the significance of this evidence, as relied on at trial by the Crown, can no longer be sustained and that therefore, it can no longer be considered as evidence in support of this conviction, so removing one of the two main planks of the Crown case against Mrs May.

Breach of PACE Code C: Failure to Caution

9.99

On the 19th, 20th and 23rd of March 1992, three witness statements were taken from Mrs May. The Commission does not take issue with the first two of these statements in that at the time that they were taken, the police had no more reason to suspect her than anyone else. The Commission notes, however, that the first statement was taken the day after the alleged comment to DS Rimmer regarding the scratches. This appears to have been the start of the build up of evidence against Susan May, and, by the time that the third statement was taken, on the 23rd March Mrs May had clearly become a key suspect (see paragraphs 109-112) and was therefore entitled to the protection afforded by the Police and Criminal Evidence Act 1984 including the right to legal advice. Code C:10.1 requires that "A Person whom there are grounds to suspect of an offence must be cautioned before any questions about it (or further questions if it is his answers to previous questions which have provided the grounds for suspicion) are put to him regarding his involvement or suspected involvement in that offence if his answers or his silence (ie failure or refusal to answer a question or to answer satisfactorily) may be given in evidence to a court in a prosecution."

9.100

The prohibition in 10.1 is clear in that the police should not have put any questions regarding the offence to her without first cautioning her. The Commission is concerned that the police, in continuing to take the third witness statement, acted in such a way as deprived Mrs May of the protections to which she was entitled and also, for the reasons set out below, may have confused her as to the implications of the questions and the context of her answers.

9.101

The Commission also considers that the taking of this third witness statement constituted an interview in line with Code C: 11.1A. This provides that "An interview is the questioning of a person regarding his involvement or suspected involvement in a criminal offence or offences which, by virtue of paragraph 10.1 of Code C, is required to be carried out under caution." The Commission's reasons for believing this are explored in paragraphs 9.110-9.122. Clearly the interview should have been carried out under the auspices of Code C which would have required her to be cautioned; the interviews to be taped; Mrs May to have had access to legal advice, and further, for her to have been able to consult a solicitor.

9.102

The Commission concludes therefore that there were substantial and significant breaches of the PACE provisions, Oliphant [1992] Crim Law Rev 40, and that if issue had been taken under s78, bearing in mind the effects of this evidence, and the way in which the evidence was obtained, the trial judge would have excluded what was said in that statement. The Commission's conclusions regarding this are explored fully in paragraphs 9.103 to 9.122.

9.103

In dismissing Mrs May's appeal, the Court of Appeal commented that she had been adamant that she had not touched her aunt's body when she found her, and that therefore the jury could only conclude that the blood had been deposited on the wall at the time that Mrs Marchbank had been killed. In reaching this conclusion, the Court referred to the various records of Mrs May having said this. Their starting point was Mrs May's witness statement dated 23rd March 1992. The Court then went on to examine what she had said during her interviews, and then in her evidence at trial.

9.104

At trial, the witness statements were said to have been derived from the contemporaneous notes taken by DS Rimmer and DC Ogden during various conversations with Susan May prior to her arrest. All three statements, were conversations read out in full, in evidence. The Commission has a number of concerns regarding this area of evidence. The Commission considers firstly that the third statement in particular does not represent an entirely accurate record of what is contained with the contemporaneous notes. The Commission is further concerned that this witness statement was taken when Mrs May was clearly a suspect and should therefore have been treated as such. The Commission's concerns regarding this are discussed in paragraphs 9.109-9.112.

9.105

DS Rimmer interviewed Susan May and took three witness statements from her 19th, 20th and 23rd March 1992 respectively. The last of these three witness statements dealt with events that occurred on 11th and 12th March 1992. Mrs Marchbank was killed some time between approximately 9-9.3Opm on the 11th, when Susan May last saw her alive, and approximately 9.40am on 12 March, when Mrs May discovered her body in the makeshift bedroom at 24 Tandlehill Road, Royton. This last witness statement therefore covered key times and events in relation to the investigation, and contained the statement, damning in the event, that she had not touched the body, which subsequently represented the main plank of the prosecution's case against her. It was also the first document to which the Court of Appeal referred during the Court's assessment of her commitment to that statement. The Commission has a number of concerns with regard to this third statement and its possible impact on the fairness, and therefore, the outcome of the trial and her appeal.

Delay

9.106

The Commission is concerned about the delay in taking a statement from this key witness. As a member of the immediate family, the person responsible for the day to day care of the victim, the last person to see the her alive, and the one who discovered the body, the Commission considers the delay of nine days before a statement covering this period was taken from her, to be of some concern. The Commission raised the issue of the delay with the officers concerned, Mr Kerr and DS Janet Rimmer.

9.107

As Senior Investigating Officer, Mr Kerr was asked to account for the delay in taking Mrs May's witness statement. His response was as follows:

"We knew from daily briefings what Susan May had to say about her activities on the relevant days. Janet Rimmer and Paul Ogden were detailed to deal with the deceased's immediate family including Susan May. Susan May was hysterical on the 12th March and it is a matter of judgement for the officers who were dealing with the members of the family to determine the best time for the taking of an objective and meaningful statement from any member of the family. Consultation would be maintained between the enquiry team, the Incident Room and the Senior Investigating Officers. There was no undue delay in taking the statement from Susan May and I certainly did not delay in taking that statement." DS Rimmer's response was: "It was a sensitive situation. We were intruding into someone's life who was grieving. As I recall I was instructed on 18th March to take a witness statement from Susan May."

9.108

Whilst the Commission acknow1edges the difficulties in taking statements from members of the victim's family, it does not consider that this in itself should have caused such a delay in taking a written statement from such a key witness. Particularly so as it does not appear to have prevented DS Rimmer and DC Ogden from talking in detail with Mrs May about her aunt and her movements at the relevant time, as evidenced by the three sets of contemporaneous notes taken during initial conversations with her, and the entry in DC Ogden's pocket book. It does not appear to the Commission that undertaking this in a more formal manner, culminating in a written statement at that earliest opportunity would have been any more traumatic for Mrs May as she was already discussing events in detail.

Susan May - Witness or Suspect?

9.109

The Commission is also concerned that officers continued to interview Susan May as a witness when she was clearly a suspect and should therefore have been arrested and interviewed under caution in accordance with PACE Code C, paragraph 1O. 1. The evidence available to the Commission shows that, by 9.00am on Monday 23rd March 1992, D. Supt Kerr was aware of the fact that one of the marks on the wall, apparently in blood, had been identified as Susan May's finger and palm print. This was crucial evidence that convicted her and contributed to her failed appeal. By continuing to treat her as a witness, she was in effect denied the protection afforded by PACE (see paragraphs 9.99-9.102). The Senior Investigating Officer was asked by the Commission to account for this situation. Mr Kerr:

"First of all, a great deal of thought was given as to whether we should continue to record a statement from Susan May now that we knew her fingerprint in blood was on the wall next to the body. We had the situation where the remark concerning scratches had been made by May to Rimmer on 18th March. (The answer to this question is so important that I would prefer to write it down." - answer continued in separate written statement.)

"After the murder of Hilda Marchbank it was necessary to have the body identified. To achieve this Detective Sergeant Rimmer brought the deceased's two nieces, Susan MAY and her sister Anne MELLOR, to the viewing room at the Oldham Mortuary. There were four (4) of us present in the viewing room: MAY, MELLOR, RIMMER and KERR. The mortician had arranged the body so that only the right side of the face could be seen. All the scratch marks were on the left-hand side and could not be seen. Susan MAY did not come near the body in the viewing room. These scratches had not been the subject of any discussion in the various briefing's as far as I can remember. When Janet recounted to me the remarks concerning the scratches both she and I knew MAY couldn't have seen them in the viewing room but she could have heard of them through an unauthorized leak to the Press. On the 19th March I gathered all the available enquiry teams together to ask whether any of them had made any disclosures to the Press. None had. I then instructed Inspector Graham MARSHALL, the Administrative Officer to obtain from the Press Office details of all radio and television broadcasts. As I remember this took some days but I needed to know whether MAY was repeating something she had heard legitimately or whether there was a cause for suspicion.

It is probable that I then became concerned to know exactly what MAY was saying and asked Janet RIMMER to expedite her statement. Don't forget at this time I had no reason to suspect MAY other than the chance remark which may in final analysis, have been innocently made. On the 20th March I received the fingerprint identification information from Alison Simmonds. I only shared that information with Roy RAINFORD. If MAY was to explain in her statement that she had touched her aunt's body on discovery then the fingerprint would have been explained. If the "scratches" remark proved to be innocent that too would have been explained. MAY would not have been a suspect. I know now that MAY denied ever having touched the body and there was no innocent explanation for the "scratches" remark. She was annotated as a suspect on HOLMES on 23rd March. During the weekend of 21st/22nd March two other suspects were in custody suspected of involvement in the Marchbank murder because they had been arrested for similar crimes in neighbouring areas. They were eventually eliminated."

9.110

The Commission finds it difficult to accept that D. Supt Kerr did not know what Mrs May was likely to say in regard to whether she touched her aunt as, according to DS Rimmer and DC Ogden, Mrs May had already told them that she had not touched the body and they had recorded this fact in their contemporaneous notes of their conversations with her. DS Rimmer had submitted an officer's report on 13th March, which stated that Susan May had said that she had not touched anything in the room. In any event, the Commission considers that at the time that Mrs May was interviewed on 23rd March, without caution, D.Supt Kerr had ample grounds to suspect her, and, as he has himself stated, had annotated her as a suspect in the Policy Book. The Commission considers therefore that the purpose of the third statement was to elicit information with regard to an offence of which she was suspected. The Commission considers that the taking of this statement clearly represented an interview as defined within Code C: 11.1A. The fact that Mr Kerr states that the statement was taken with a view to possibly eliminating Mrs May from the enquiry, should she have said that she did touch her aunt, does not prevent the questioning from being an interview: R V Hunt [1992] Crim.L.R. 582, CA. Mrs May should, therefore, have been cautioned before any questions were put to her in line with Code C: 10.1.

9.111

From the Commission's examination of the relevant documentation, there is a clear implication that the third statement was taken at this late stage in order to ensure that Mrs May's answer to the crucial question of whether or not she touched the body, as yet not formally recorded, was recorded in writing and signed by her. Once that had happened, it would have been extremely difficult for Susan May to have altered that stance, had she wanted to. In addition, there is no record of that crucial question being put to her when she made that statement. There is no record of exactly what words were used, or the tone of the question. It could have been put to her in a perfectly acceptable manner, however, she could, for example, have been asked "You didn't touch the body did you?" in such a manner as to imply that she should not have done so, and thereby invite a negative answer from a person who might at this stage be unsure one way or another. Some of the questions put to her in interview were put to her in this manner, for example "you didn't touch her or shake her? "you wouldn't have blood on you?", "you wouldn't have any on your hands?" In the
absence of any record of the questions put to her when her witness statement was taken, it is impossible to be sure that the crucial question was put to her in a fair and objective way, without leading her. Had she been treated as a suspect, this interview would have been recorded.

9.112

The Commission considers that obtaining this crucial and damning evidence from a suspect, without the benefit of legal advice, when the police would have been fully aware of the consequences of what she was likely to say, was unfair and created a situation whereby a potential miscarriage of justice could occur. The Commission has considered whether this represented a substantial and significant breach of the PACE provisions. Having undertaken a detailed examination of how the police dealt with Mrs May up to and including her interviews under caution, the Commission concludes that this does represent a substantial and significant breach of PACE, for the following reasons.

Contemporaneous Notes and the Statements

9.113

Detective Sergeant Rimmer has told the Commission that her role in the investigation was "To provide continuity in the enquiry. To answer any actions directed at Susan May. I acted, in effect, as a bereavement officer, this role applying to the whole of Susan May's direct family. I was also a contact point for Susan May. I was an investigating officer." During the seven days prior to Susan May making her first statement, DS Rimmer and DC Ogden spent some time with her and were making notes of things that she said in relation to her aunt and what occurred on the 11th and 12th of March. In evidence, DS Rimmer stated that the notes that she had taken during her informal conversations with Mrs May were eventually reduced to the three witness statements.

9.114

The content of Mrs May's third statement was crucial to the prosecution case, and also to her own defence. This statement contained a number of references to what Mrs May did on first discovering her aunt's body. Namely, it contained a number of assertions that she did not touch her aunt, and another that she did not touch the pillow on which her aunt's head was resting. This was a crucial issue because it was accepted by the appeal stage that there was a potential source of wet blood around at the time that she discovered the body, enough to have contaminated Mrs May's hands, and which could then have been transferred to the wall next to the bed. At the time of the trial however, the Crown's case was that even if Mrs May had touched the body and had forgotten that she had done so, there was no wet blood available with which to have contaminated her hands. Given the fact that it is now accepted that there was a source of wet blood available when Mrs May found the body, the Commission considers that the evidence of whether or not she touched the body or the bedding is even more crucial. Particularly so in the light of the comments made by the Court of Appeal:

"If the conviction depended on the judge's implicit suggestions (i) that there was not a sufficient quantity of blood available to make the marks in the morning of 12th March, and (ii) if there had been it would have been noticed on the hands of Mrs May by herself or Mrs Oakley (the first person that she met), there would have been grounds for concern in the light of the fresh evidence. But in truth that was only an additional point for the jury to consider. If they accepted the repeated assertions by Mrs May that she did not touch her aunt's body, they could only conclude that the marks on the wall were not made in the morning of 12th March. They must have been made by Mrs May at the time when Mrs Marchbank died. As we have already indicated, we can see nothing in the evidence about amnesia to cast doubt upon it."

9.115

9.115 The Commission has therefore examined closely the records of what Mrs May said regarding what she did when she discovered the body. This has included subjecting the notes taken by both DS Rimmer and DC Ogden to ESDA tests, together with an analysis of the content of those notes, the content of the third witness statement, the content of Mrs May's interviews under caution and what she said in evidence at her trial.

9.116

In evidence, DS Rimmer said that the witness statements were based on the notes taken by both herself and DC Ogden. The key passages from this statement are:

"Her bedroom door was ajar, but not closed, so I pushed the door open, and I knew something was wrong. I saw my aunt was lay on the bed in disarray, her nightie was up and I could see her legs. I then walked a few steps and I could see blood on her face, and there was blood on the pillow. I also thought there was something round her neck. I didn't touch the light to turn it on. I just looked and I was horrified. It was absolute horror. I knew something was wrong. I didn't touch my aunt in any way. I went up to her as far as the table. I thought I'd seen blood on her face and I turned tail and ran out. I didn't know it was blood I just thought it was blood. It all happened in seconds. I walked into the room, my immediate reaction was horror, I thought there was blood on her face, but I didn't know it was blood because I didn't touch her in any way. I didn't switch any lights on. As I turned to come out I noticed that the drawers in her sideboard were open and I just ran out."

Further on in the statement she returns to the issue of whether or not she touched anything in the room:

"I didn't go into my aunt at all. The ambulance arrived and went into the house. They wouldn't let me go back in. I in no way moved anything in the bedroom or touched my aunt or the pillow in any way. I was too horrified. I just wanted to get out. "

9.117

Having analysed the contents of the contemporaneous notes taken by DS Rimmer and DC Ogden, the Commission does not consider this to be an entirely accurate representation of what is contained in those notes. (The Commission notes also that whilst DS Rimmer's contemporaneous notes were disclosed to the defence, DC Ogden's notes were not disclosed.) As stated in paragraph 9.110, the Commission considers that this statement is not simply a tidier version of those notes, but represented a record of an interview with Susan May. As such, the Commission is concerned to note that there is no record of how the crucial question of whether or not Mrs May touched her aunt's body or the bedding was put to Mrs May during this interview. Both Mr Kerr and DS Rimmer have confirmed to the Commission that there is no record of this question being put to Mrs May at this time. The possibility that this question was put to her in an accusatory manner, or in such a way that would imply that she should not have done so, cannot be ruled out.

9.118

There are two versions of DS Rimmer's contemporaneous notes, one set being on lined paper headed "Greater Manchester Police" including two lined sheets headed "M.I. Report No."; the other set being on ordinary lined A4 paper. The Commission has been unable to establish the order in which these two sets of notes were written. The Commission notes that, whilst one set (on the headed paper) includes an entry "DID NOT TOUCH HER OR FACE!" the other set does not:

Excerpt from notes on lined paper:	Excerpt from Notes on Headed Paper
	covering the same area:
Morning 9.40	Went into the bedroom
Parked in drive	Went towards her
	1st impression - lied n bed nightie
Went in thro bedroom door +	pulled up
went as far as table	thought she had something round neck
	DID NOT TOUCH HER OR FACE!
1st struck. nightie up	Saw blood on pillow. Thought
blood on face	there was blood on face.
far as beginning of dining table,	+ uncovered
whether it was disarray or clothes	drawers in sideboard open,
"something round her neck"
on the pillow

Excerpt form DC Ogden's notes covering the same area:

Up to Dining table - Blood on face looks
as though something around Neck!!!
Sensed something wrong, went for man next door

9.119

The Commission notes that whilst DC Ogden's notes of the same conversation include references to blood on the face and something around her neck, they do not include any reference to Mrs May saying that she had not touched her aunt, or her aunt's face, or anything in the room. The Commission notes also that the comment "DID NOT TOUCH HER OR FACE!" is the only entry within all of DS Rimmer's notes that is written with such emphasis. The Commission has some concerns regarding this entry. According to DS Rimmer these notes were taken during the early days of the enquiry. The hand written version of her report back to the incident room is dated 13th March 1992, the day after the body was found. The content of this report has been taken from both officers' contemporaneous notes. DC Ogden has stated that DS Rimmer completed page 1-7 of this report, and he completed pages 8-19. The relevant passage from this report, in DC Ogden's handwriting, contains the following information:

"As she got near her auntv she could see blood on her face, blood on the pillow and thought she had something around her neck. May states that she did not go any nearer nor did she touch anything."

9.120

This report was signed by both officers. The Commission notes that there is no specific reference in this report to Susan May saying that she had not touched her aunt's face or the pillow. The Commission notes also that nowhere in any of the contemporaneous notes is there any note of Susan May saying that she had not touched the pillow. However a reference to the pillow does appear in the third statement but again, there is no record of how that question was put to Mrs May.

9.121

The Commission is particularly concerned about the additional comment regarding the pillow, in the light of a note of a telephone conversation between D. Supt Kerr and a forensic scientist, Michael Davie. This conversation took place at 0900hrs on Monday 23rd March 1992, a few hours before DS Rimmer took Mrs May's final statement. During this conversation, Mr D.Supt Kerr informed Mr Davie that Mrs May's fingerprint had been identified in the substance believed to be blood on the wall. He asks Mr Davie, "Would blood have been wet when niece came in (ca 0900)?" to which Mr Davie replies, "Still damp on pillow when I got to scene." The Commission notes that the only reference to whether Mrs May touched the pillow is contained in her third statement which was taken after this telephone conversation had taken place, during which the possibility of damp blood being on the pillow had been highlighted to the Senior Investigating Officer. Mr Davie was asked about this conversation when interviewed by the Commission. He replied: "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. This is the still wet blood, which I referred to in my conversation with Superintendent Kerr. The term "When I got to the scene" would more appropriately mean, " When I was at the scene." However, on 23rd March, it was clear that D.Supt Kerr was told that the pillow was damp when Mr Davie got to the scene, the implication being that it would therefore have been damp when Mrs May had arrived some three hours earlier that morning.

9.122

Given the importance of Mrs May's commitment to her statement that she had not touched her aunt, and the implications of this for her defence, the Commission considers that had submissions been made to the trial Judge, her third witness statement would have been excluded under s78 of PACE for the following reasons:

* A significant and substantial breach of PACE occurred in the failure to caution Susan May in line with paragraph 10.1 of Code C. As a result of this breach, there is no record of how the crucial question of whether or not Mrs May touched her aunt when she found her, had been put to her. Mrs May was also denied the benefit of legal advice prior to answering these questions.

* The taking of the statement constituted an interview

* The discrepancies between the three sets of contemporaneous notes from which the above statements were said to have been drawn.

* The absence of any reference to Mrs May saying that she did or did not touch the pillow in the above contemporaneous notes.

9.123

The Commission further considers that an application to have the record of her
subsequent interviews under caution excluded might also have been successful. In R v Neil [1994] Crim LR 441 the Court of Appeal held that "where there is a series of two or more interviews and the court excludes one on the grounds of unfairness, the question whether a later interview which is itself unobjectionable should also be excluded is a matter of fact and degree. This is the principle that can be deducted from the authorities (Canale, Gillard and Barratt, Y v DPP and Glaves). It is likely to depend on a consideration of whether the objections leading to the exclusion of the first interview were of a fundamental and continuing nature, and, if so, if the arrangements for the subsequent interview gave the accused a sufficient opportunity to exercise an informed and independent choice as to whether he should repeat or retract what he said in the excluded interview or say nothing. In the instant case, the judge should have exercised his discretion to exclude the evidence. N would have considered himself bound to the admissions in the first statement. The circumstances of the second interview were insufficient to provide him with a safe and confident opportunity of withdrawing the admissions."

9.124

The circumstances in Neil were that Mr Neil was charged with having an offensive weapon and impeding the arrest of another. Following the incident, Mr Neil was asked to go to a police station where he requested to speak privately with a solicitor. In the presence of that solicitor, he told officers that he had witnessed the fight, given the knife to A and helped to drive him away. An officer then took a witness statement from him, which he signed. He was then cautioned, arrested and kept in custody overnight, and was interviewed the following day. At the trial, the judge excluded the first witness statement under s78 because of numerous breaches of the Codes, but did not exclude the subsequent interview.

9.125

In any event, if the breach in taking the third witness statement is not considered to have contaminated the subsequent interviews, the Commission takes the view that it prejudiced Mrs May's ability to defend herself as the evidence had been obtained unfairly, so that she had effectively been boxed into a comer, having already given an answer to that specific question. At her subsequent interviews under caution, the Commission does not consider that either Mrs May or her solicitor was in a position to make an informed decision as to whether she should qualify, repeat, or retract the statement that she had not touched the body. Given that the interview took place a week after she had made that statement, and that that statement was not put to her at the beginning of the interview, neither Mrs May nor her solicitor would have been in a position adequately to understand the significance of the question. Evidence relating to it in the possession of the police was not put to her until after almost three hours of questioning.

9.126

The Commission considers that the effect of this approach was to capitalise on the initial breach, the third witness statement, and that this upset the balance of fairness in the proceedings, to the detriment of the suspect. For this reason, together with further breaches discussed below, the Commission considers that passages of Mrs May's interviews under caution that dealt with this area of evidence, might also be excluded under s78 of PACE.

Further Breaches of PACE: Susan May's Interviews under Caution

9.127

An entry in the Marchbank Enquiry Policy Book dated 20th March 1992 reads:
"There is still doubt about Susan May and DCI Rainford has been delegated to gather together all relevant items of evidential value re Susan May and her children. He is to interview her as soon as possible. It is important that this interview takes place only when all the facts are known, including forensic and fingerprint details. Matters are being expedited but it will take until later next week (wlc 23/3/92) until DCI Rainford can proceed." According to Mr Kerr, the fingerprint details were confirmed on the 20th March (see his report dated 11th May 1992 and his statement to the Commission dated 10th February 1999). Mrs May had made her first two statements by then, and the third was then taken on the 23rd of March. Mrs May was not arrested until Monday 30th March 1992.

9.128

Mrs May was interviewed over a period of three days, for a total of four and a half hours. The interviews were divided up into ten sessions ranging from 13 to 84 minutes in length. The Commission has listened to the tapes of those interviews and considers that in addition to the initial breach of Code C paragraph I0.1 (failure to caution), there were a number of breaches of PACE in the way in which the interviews were conducted.

9.129

The Code in force at the time of Mrs May's arrest was the 1991 version of Code C. However, the Court of Appeal has indicated that the Courts can have the provisions of the new codes in mind. R v Wayne Ward [1994] 98 Cr App R 227. In Ward, Morland J said: "…in our judgment the new Code, ... may well be relevant when considering whether it is fair in the proceedings under s78 that the answers of the appellant are admitted in evidence. In our judgment the court can have in mind the provisions of the new codes, as they reflect current thinking as to what is fair."

9.130

Paragraph 11.2A of the 1995 version of Code C requires that any significant statement that occurred before his or her arrival at that police station shall be put to the suspect at the beginning of the interview after cautioning the suspect. The code defines a "significant" statement as "one which appears capable of being used in evidence against the suspect ". The Commission has noted earlier that the comment Mrs May was alleged to have made to DS Rimmer about the scratches was used in evidence against her but was not put to her until a quarter of the way through the fifth session of interviewing, after a total of almost three hours of questioning. That is 12 days after she was alleged to have made the comment.

9.131

The Commission considers also that Susan May's statement that she did not touch her aunt when she found her was a "significant" statement as defined in paragraph 11.2A. and was used against her in evidence. Once again, the Commission considers that there was a breach of paragraph 11.2A in that the fact that she had said this in her statement was not put to her at the beginning of the interview. The question was not put to her until after a total of one and a half hours of questioning. The question was asked, "Did you touch your aunt?" as opposed to her being informed that she had already said in her statement that she had not touched her aunt. Had the fact that she had said this in her statement been put to her at the beginning of the interview as is required, it may have alerted her solicitor to the fact that it bore some significance in regard to the enquiry. Thus enabling him to advise Mrs May more effectively in terms of deciding whether to qualify, repeat or retract her statement that she had not touched her aunt.

9.132

No application was made to have either the witness statements or the interviews excluded. The fact that Mrs May was interviewed as a witness, as opposed to a suspect, was said by the defence to show that the scratches comment was a fabrication. The defence argued that had that evidence had the impact that the officers said it did, Mrs May would have been interviewed as a suspect. The fact that she was not, the defence said, was evidence that the comment had never been made, in that the first witness statement was taken the day after it was alleged to have been made. The defence did not appear to be aware of, or had overlooked, the significance of the date of the third interview, in that that was the date that Mrs May's fingerprints had been formally identified in the mark on the wall. The Commission appreciates that in some respects, the defence did not have the benefit of access to the volume of documents to which the Commission has had access.

9.133

The Commission has considered whether, in the absence of submissions from defence counsel, the trial Judge should have addressed his mind to the issue of fairness, and excluded Susan May's third statement, and relevant passages of her subsequent interviews of his own volition, under s78 of PACE. This question has been addressed by the Court of Appeal in R v Raphaie [1996] CLR 812. In that case the Court of Appeal held that where a defendant is represented by a competent advocate, and where a particular piece of evidence may be the subject of a tactical or strategic plan on behalf of the defence, it is no part of the judge's duty to take it on himself to exclude the evidence. However, the Court went on to say that should he feel it appropriate, the judge should make a pertinent enquiry of counsel in the jury's absence in certain circumstances.

9.134

The Commission does not consider therefore that it was incumbent on the judge to have excluded this evidence of his own volition in the absence of submission from Counsel. However, in the case cited above, the Court of Appeal went on to consider whether, in cases where the judge did not choose to exercise his discretion under s78, and was not invited to, the Court of Appeal should intervene. They referred to R v Parris [1989] 68 Cr App R 71 in which Lord Lane LCJ said that where the trial judge had never directed his mind to the questions of fairness, it was the task of the Court of Appeal to put themselves in the position of the trial judge, and decide whether the learned judge should have ruled the evidence as inadmissible. In Raphaie the Court did address the question and went on to quash the conviction.

Evidence of Whether Mrs May Touched her Aunt or Anything in the Room

9.135

The Commission considers that there is still some doubt regarding whether or not Mrs May touched her aunt when she found her. The witness statement in which she states this is, the Commission considers, unreliable because of the way in which it was obtained from her, in breach of PACE and because of the fact that there is no record of how this question was first put to her. Also, the Commission considers that there is still enough doubt about the dampness of the pillow that morning, to suggest that as a possible source of the contamination on Mrs May's hands. Mrs May stated from the beginning, and stated a number of times in interview that she could not remember clearly what she did when she first entered the room. The contemporaneous notes taken by DS Rimmer and DC Ogden contain no record of her saying that she had not touched the pillow and yet this is included in her witness statement. Again, the Commission notes its concerns that there is no record of how these questions were put to her.

9.136

The Commission notes also that the Court of Appeal was under the impression that Mrs May's assertions that she could not remember what she did in the room became stronger after the evidence of the marks on the wall had been put to her. The Commission has examined her interview records and notes that the very first time she was asked what she did when she went in there, she replied "I can't honestly remember what exactly I did." When she was later asked if the memory was now quite vivid, she replied "It's not vivid, I mean I've gone through it so many times, to begin with, I couldn't remember what I had done that morning. I don't really know. I don't remember this very well." She could not remember whether she had spoken to her aunt. The first time the question was put to her in interview, as to whether she touched her aunt, she replied "No I didn't touch her" she was then asked "Did you touch anything," and she replied "I don't think so". When asked again whether she touched anything in the room she replied "No, I don't think so, I just came out" then, "Did you touch your aunty?" "No I don't think, no I didn't touch my aunty. I wanted to pull her nightie down. I should have done that." The next question was put to her in this way "But you didn't touch her and see if she was alright?" to which she replied "No I didn't."

9.137

The Commission considers that the record of Mrs May's interview shows that in her answers, she continually expressed doubt as to whether she did or did not touch anything in the room, often adding "I don't think so" when she said "No". The Commission notes also that some of the important questions put to her were put in an accusatory manner. For example, following an explanation that the blood on her aunt came from scratches inflicted on her by her assailant, the interviewing officer then told Mrs May that DS Rimmer had told him that she had asked about the scratches on her aunt's face. It is at this point that Mrs May denies making this comment and asks whether it is written down anywhere. Then there is a long discussion about the state of Mrs May's fingernails both at the time of the interview, and at the time she found her aunt. The interviewer then tells Mrs May that she had caused the scratch marks on her aunt's face when she killed her. Mrs May denies killing her aunt and at that point she is asked again whether she touched her aunt to which she replies no. Mrs May is clearly upset and is repeatedly asked whether she touched her and replies no. She is then asked "so you wouldn't have any blood on you?" "When you found her, you wouldn't have any blood on you? " "You wouldn't have any on your hands?" "You wouldn't have any on your clothes?" Mrs May replies no to these questions ending with "I didn't touch her. I'm only surmising her face had blood on." It is only after repeatedly putting these questions to her that she is asked "Well tell me then why we've found your bloodstained fingerprints on the wall?"

9.138

The interview continues and it is put to Mrs May that she had been "very, very sure that you had not touched your aunty or anything in that room.", to which she replies "I don't think I did. I don't know what I did. I've told you that as well." Having examined her interview record, the Commission considers that it is incorrect to say that Mrs May was always very sure that she had not touched anything in the room. She repeatedly expressed doubts as to what she did up to and after the revelation about the marks on the wall. The Commission therefore considers that doubt about whether she touched either her aunt or the pillow still remains.

Overall Conclusions

9.139

The Commission considers that the issues covered in paragraphs 9.4 to 9.18 are substantial issues that call into question the safety of this conviction for the following reasons:

1 . New Evidence Relating to the Scratches Comment made by Susan May

The Commission considers that failure to disclose the entry in the pocketbook of Detective Constable Ogden materially prejudiced the defence's ability to challenge the Crown case that Susan May could only have known about the scratches on her aunt's face if she had killed her. The evidence regarding this comment damaged Susan May's credibility and was also represented to the jury as evidence of how she contaminated her hands with the blood of her aunt, which was then transferred to the wall of the bedroom.

2. New Evidence Regarding the Reliability of the Forensic Evidence

(i) The Commission considers that there is now substantial reason to doubt the reliability of the forensic evidence as presented at trial. Evidence of additional notations made to contemporaneous scene notes, and examination records completed retrospectively, gives rise to concerns regarding the overall integrity of those notes.

(ii) Further, the Commission considers that new evidence in relation to the photographic records of the crime scene, throws substantial doubt on the crown case that the marks were all deposited on the wall at the same time, when Mrs Marchbank was killed and were therefore from the same source.

3. Breaches of PACE Procedures

(i) The Commission considers that the failure to caution Susan May, thus denying her the protection of PACE and the benefit of legal advice, represented a substantial and significant breach of Code C and resulted in a severe detriment to her defence. The Commission considers that it was unfair for the investigation team to put the specific question of whether she touched her aunt, or the pillow, to Mrs May without first cautioning her. The investigators were at this time in possession of evidence against Mrs May, which had resulted in her being annotated as a suspect by the Senior Investigating Officer. Despite this, she continued to be treated as a witness, and the interviewing officer was specifically instructed to obtain information from Mrs May as to whether she touched her aunt or the pillow, when the consequences to Mrs May should she say that she did not touch her, were known to the police. In addition, according to other police documents, they were fully aware that she was very likely to say that she did not touch her. The fact that there is no record of how this crucial question was put to Mrs May increases the Commission's concerns regarding this evidence.

(ii) The Commission considers that the effects of this breach were not mitigated by the subsequent interviews under caution, in which it would have been very difficult for Mrs May to retract what she had said. There were also continued breaches in that the incriminating comments that Mrs May had allegedly made prior to being cautioned were not put to her at the earliest opportunity. For these reasons, the Commission considers that Mrs May's third statement, and relevant passages from her police interviews should have been excluded, and might well have been, had an application been made to the trial judge. The Commission believes that the objections leading to the possible exclusion of the third statement were of a fundamental and continuing nature, and that her subsequent interviews did not provide Mrs May with sufficient opportunity to exercise an informed and independent choice as to whether she should repeat or retract what she had said in her third statement: R v Neil. In any event, even if the breach in taking the third witness statement is not considered to have contaminated the subsequent interviews, the Commission takes the view that it prejudiced Mrs May's ability to defend herself.

iii) The Commission considers that in the absence of submissions from the defence at trial, the Court would address its mind to the issue of fairness under s78 of PACE, with regard to the exclusion of this evidence : R v Raphaie (See paragraph 9.133)

iv) The Commission considers therefore, that in all the circumstances, there is a real possibility that the Court of Appeal would rule that Susan May's third statement should have been excluded, under s78 of PACE.

v) The Commission also considers that the Court may well then go on to rule that relevant passages from her interviews should also have been excluded.

4. Effects of the New Material

(i) In considering the effects of the new material, the Commission has borne in mind the words of Swinton Thomas, LJ in the case of McNamee, 97/0448152: 17th December 1998. "The Court's task in this appeal is to resolve the question as to whether the conviction of this Appellant is safe in the light of the fresh evidence. We test that question by asking whether the jury, if they had knowledge of the fresh evidence, would necessarily have come to the conclusion that they did."

(ii) The Commission considers that the new material would have lent more weight to the defence's case at trial, and would have substantially undermined the Crown's case against Susan May, and therefore could have affected the outcome.

(iii) The Commission notes that when Mrs May's appeal was dismissed, the marks containing the handprints had not been proven to be blood. However, in dismissing Mrs May's appeal, the Court of Appeal continued to make the assumption that all three marks were deposited at the same time, and were, therefore, of the same substance. The Commission considers that the Court did so because it appeared to be a logical conclusion from the evidence as presented at trial. In the light of the new evidence and arguments relating to evidence in support of that assumption, the Commission considers that the Court would probably not now reach the same conclusion.

(iv) The Commission notes also that the Court of Appeal was satisfied that Mrs May had been adamant that she had not touched her aunt or the pillow when she found her. The Commission considers that the evidence in relation to the contemporaneous notes shows that there is doubt as to when she first said this, and also that it is clear that she was never adamant about whether she had touched the pillow, and had continually stated that she could not remember exactly what she did when she entered the room, throughout her interviews. The Commission points out also the concerns about how this evidence was obtained, involving substantial breaches of PACE procedures as outlined above.

(v) The Commission considers therefore that the Court of Appeal may now take a different view of Mrs May's commitment to her statement that she did not touch her aunt, and may consider that there is a possibility that she did touch either her aunt or the pillow when she found her. The Commission notes here that all the witnesses, who said that the pillow was dry when they arrived, also said that they had not touched the pillow, and that their comments resulted from a visual inspection only. The Commission considers this to be an important point and notes again that Mrs May was asked a specific question regarding whether she touched the pillow when her third statement was taken on 23 March. There is no equivalent record of her saying this in either DS Rimmer's or DC Ogden's contemporaneous notes from which her statements were said to have been drawn. The Commission considers therefore that there is a possibility that the pillow could still have been damp when Susan May arrived that morning, and that she may have inadvertently touched the pillow. The Commission notes again its concerns regarding the conflicting records of Michael Davie as to the real state of the pillow when he was at the scene, and the admitted errors, contradictions and amendments contained within his records. The Commission does not consider that his evidence in regard to his tests on blood drying times as adduced at trial reduce these concerns.

Decision

10.1

The Commission can only refer a conviction if, in its opinion, there is a real possibility that it would not be upheld were the reference to be made. In this case, the Commission considers that there is such a real possibility. Accordingly the conviction of Susan May is referred under section 9 of the Criminal Appeal Act 1995 and this statement sets out the Commission's reasons in accordance with section 14(4) of the Act.

Signed: K S

Date: 24/11/1999

Commitee Members:	K Singh
	D Kyle
	E Weiss

Annex

Summary of Referral Powers of the CCRC

Under Sections 9 to 12 of the Criminal Appeal Act 1995, where a person has been convicted on indictment or by a magistrates' court in England and Wales or Northern Ireland, the Commission may at any time refer the resulting conviction, verdict, finding or sentence to the Court of Appeal, Crown Court or County Court as appropriate.

By Section 13 of the Act, a reference shall not be made unless the Commission considers that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made.

By the same Section, this consideration must be reached because of argument, evidence or, in the case of a sentence argument on a point of law or information, not raised in the proceedings which led to the conviction or on any appeal or application for leave to appeal.

A reference shall not be made unless an appeal has been determined or an application for leave to appeal has been refused.

In exceptional circumstances, the Commission may refer a case where there has been no previous appeal or application for leave to appeal.

In exceptional circumstances, the Commission may also refer a conviction, verdict or finding (but not a sentence) in the absence of any argument or evidence not previously raised.