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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> May, R v [2001] EWCA Crim 2788 (7th December, 2001) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2001/2788.html Cite as: [2001] EWCA Crim 2788

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May, R. [2001] EWCA Crim 2788 (7th December, 2001)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		7th December 2001

LORD JUSTICE KENNEDY :

Introduction

1. On 5th May 1993 in the Crown Court at Manchester this appellant was convicted of murder and was sentenced to life imprisonment. She appealed against her conviction and on 14th February 1997 that appeal was dismissed by a differently constituted division of this court. Her case was then investigated by the Criminal Cases Review Commission, and on 24th November 1999 that Commission, in the exercise of its powers under section 9 of the Criminal Appeal Act 1995, referred the case to this court. The effect of that reference is that we are required by section 9(2) of the 1995 Act to treat this matter for all purposes as an appeal by Susan May under section 1 of the Criminal Appeal Act 1968 against her conviction. That means that we started our hearing of the appeal from the position that the only material before us was that which was before this court in 1997, together with the fresh grounds of appeal and the new skeleton arguments. For the purposes of the present appeal certain additional matters were agreed, and we heard evidence from eight witnesses de bene esse reserving to this judgment the decision whether to receive the additional oral evidence pursuant to section 23(1) of the 1968 Act. It necessarily follows that in this judgment we will not touch upon every point raised by the Commission in its Statement of Reasons, nor will we necessarily confine ourselves to those points. As required by statute we address ourselves instead to the grounds of appeal now raised in relation to the evidence and other material now properly available to us.

Background

2. In March 1992 Hilda Marchbank was an 89 year old widow living alone at 24 Tandle Hill Road, Royton, Greater Manchester. It was a neat well kept semi-detached house in a residential road, as can be seen from the photographs which were before the jury and from the short video film which we were invited to view. Mrs Marchbank was the aunt of the appellant who was then 48 years of age, and who lived with her mother at 42 Dogford Road, Royton, not far away. The appellant was the principal carer for both of the elderly women, and she visited her aunt several times each day. She also received many telephone calls each day from her aunt, whose sight was impaired, and who often sought guidance as to what she should do next. The appellant provided all of her aunt’s food, either preparing it at her own home and taking it to her aunt’s house by car, or buying it pre-prepared. The aunt also had the help of a cleaner, Mrs Brady, who visited once a week for two hours on a Wednesday. Mrs Brady visited as usual on Wednesday 11th March 1992. That evening at about 9 pm, according to the appellant, she went to her aunt’s house because her aunt had telephoned expressing anxiety as to the whereabouts of the front door keys. The keys were not in fact mislaid, and the appellant says that she was able to leave again after a brief visit, leaving her aunt to lock up.
3. On the following morning, Thursday 12th March 1992, the appellant did not receive any telephone call from her aunt but set off to visit her. She bought a sandwich for her on the way, and arrived at about 9.40 am. The aunt slept downstairs in a former living room which opened off the kitchen. The curtains were still drawn. The appellant went into the kitchen, and when she got as far as the door from the kitchen into the bedroom she could see her aunt lying on the bed in disarray, with her night-dress up. The appellant says that she entered a little into the room and was able to see blood on her aunt’s face and blood on the pillow. The appellant then ran out of the house and managed to find a neighbour, Mrs Oakley with whose support she was able to telephone for an ambulance. It was clear to the ambulance crew that the aunt was dead, and subsequent examination by a pathologist Dr Lawler revealed that she had died as a result of asphyxia due to suffocation, possibly with the blood-stained pillow on which her head was subsequently found to be resting. There were also bruises on the neck indicative of the neck having been grasped and compressed quite forcibly. There were facial bruises, probably caused by slapping or punching, and three facial scratches, probably caused by fingernails but which could not have been self-inflicted because the nails of the deceased were bitten short.
4. Once it was clear that the aunt was dead the police became involved, and Detective Superintendent Kerr took charge of the investigation. He arrived at 24 Tandle Hill Road at about 10.30 am with a fingerprint officer and a photographer Mr Naylor. Later in the day another photographer, Mr Fitton, attended for about half an hour to make a video film. Many other police officers attended, and so did Mr Davie and his assistant Miss McCabe (now Mrs Ashworth) of the Forensic Science Service.
5. Initial investigations showed signs of disturbance within the house suggestive of searching by a burglar, but no property appeared to be missing and there was no sign of forcible entry.
6. At some stage on that first day it was noticed that there were three sets of marks on the wall which ran parallel to and a short distance away from the bed on which the deceased lay. Anyone entering the bedroom from the kitchen would have that wall on their right, and there was a light switch on the wall near to the entrance. The wall ended before it reached the bedhead, leaving a gap giving access to the living area, and when facing the wall the left mark, made by a right hand, was thirteen inches from that corner of the wall nearest to the bedhead. That mark was labelled JH1. All three marks were made at a height of about 4’6” above floor level. Moving toward the kitchen, the middle set of marks JH2 was eighteen inches away from the left hand set of marks, and that middle set of marks was make by a left hand. A further 26” along towards the kitchen was a smear MSN14. It was quite close to the light switch. We will have more to say later in this judgment about those marks, and the evidence in relation to them. It ultimately became the prosecution case that those were marks made by the appellant at the time when she murdered her aunt during the evening of Wednesday 11th March, the substance left on the wall being the blood of the deceased. When the ambulance crew arrived on the morning of 12th March all of the blood on the surface of the body and the bedding was dry, and at the trial Mr Davie was able to report that as a result of experiments he had carried out he could not envisage blood being transferred more than six hours after it was deposited. The pathologist’s opinion was that death had probably occurred between 9 pm and midnight on 11th March, so it would seem that unless the body was disturbed there would have been no liquid blood available to transfer at any time after about 6 am on Wednesday 12th March, long before the appellant made her first visit to her aunt’s home on that day.
7. In fact the body was disturbed when it was examined by Dr Lawler in situ at about 3.45 pm on 12th March, and then removed from the bed. After its removal photographs of the pillow show a little fresh blood, and at trial Dr Lawler suggested that the fresh blood could have leaked from the facial blood blister at some stage during the movement of the body by him, by the forensic scientists, or whilst it was being taken away. We will return later to the further evidence which we have heard in relation to this aspect of the case.

Emergence of Prosecution Case against Appellant

8. Although it was clear from the outset that the appellant had the opportunity to commit the murder on the evening of Wednesday 11th March, and although it was well known that murders in the home are often found to have been committed by persons known to their victims, the appellant was not initially regarded as a suspect, even though Detective Superintendent Kerr was, he says, not wholly convinced that a burglary had occurred. A woman police officer, Detective Sergeant Rimmer, was assigned to act as liaison officer between the appellant and her family and the investigating team, and it is clear from Detective Sergeant Rimmer’s notes and from a typed report R17 dated 13th March 1992 which we have seen, that Detective Sergeant Rimmer gathered from the appellant a consdierable amount of information about the deceased and about the last day of the deceased’s life. As to what happened on the morning of 12th March Detective Sergeant Rimmer recorded in her report –

“As she got near her ‘aunty’ she could see blood on her face, blood on the pillows and thought she had something around her neck. May states that she did not go any nearer nor did she touch anything.”

9. One of many lines of enquiry recorded in the police policy file for this investigation on 13th March 1992 was –

“To enquire into the family background of the deceased re possible motives for a domestic murder.”

10. Gradually, but not at this early stage of the enquiry, it did emerge that the appellant had been spending a lot of money. She had been having a secret affair with a younger man, Christopher Ross, and by the spring of 1992 £200,000 which had been in the accounts of the deceased, the appellant’s mother and the appellant’s two children a few years earlier and to which the appellant had access had gone. By 11th March the appellant had debts of over £7000, and had no easily available means of discharging them. The accounts were almost empty. The deceased had some shares worth just over £11000, and some jewellery worth about £5000 which had not been sold, and she also had her home. If she died the appellant and her sister would have shared her estate. The appellant’s mother also had three houses, one of which was about to be sold at the time of the trial. At the trial the appellant said that she had taken nothing to which she was not entitled, and the judge, having warned the jury in strong terms not to be prejudiced against the appellant by the evidence as her use of the money, invited the jury to assume in her favour that her assertions as to financial matters were broadly correct. In other words she was entitled to have all of the money which she had spent. Even on that basis it remained undeniable that in March 1992 the appellant did need money.
11. On 18th March 1992, as a routine part of the enquiry, Detective Sergeant Rimmer took the fingerprints of the appellant, and she noticed that whereas previously the fingernails on both hands had been manicured now those on the right hand were thick and dark. As the judge indicated, not much might be thought to turn on that, but after the fingerprints had been taken Detective Sergeant Rimmer and Detective Constable Ogden escorted the appellant and her daughter Katy from the building. According to Detective Sergeant Rimmer, when they reached the exit Katy went to the car 30 to 40 yards away and in the course of a general conversation about fingerprints the appellant said to the officer –

“Do you know the scratches on my aunt’s face, can they get stuff from down your finger nails at forensic?”

12. At the trial detective Sergeant Rimmer said that she was astounded and shocked, or at least taken aback, by that question, and in reply said that she did not know. After the appellant had gone off with her daughter she and Detective Constable Ogden, who had been nearby, reported to Detective Superintendent Kerr what, according to them, had been said. Detective Sergeant Rimmer recorded the conversation in her pocket book, and her fellow officer confirmed her record, but no record was made on the Holmes Computer, nor did the police choose formally to regard the appellant, who had no criminal convictions of any kind, as a suspect from that moment on. The remark allegedly made by the appellant to Detective Sergeant Rimmer was incriminating if, as the police believed, the appellant had no innocent means of knowing of the facial scratches. They had not been visible when the body was identified but, as Detective Superintendent Kerr explained to us, it was necessary after 18th March to check that the scratches had not been reported in the media. Whilst that enquiry was being made the police continued to treat the appellant as a potential witness, and uncontentious witness statements were obtained from her on 19th March and 20th March dealing with background matters. It may also be of significance that at that stage the police had already arrested a man named Barry Bolton, who they had reason to suspect of having committed this murder.
13. It seems that on Friday 20th March Detective Superintendent Kerr learnt that the left hand mark on the wall (JH1) had been made by the apellant’s hand, and it was already known that all three marks on the wall had the appearance of blood, but the appellant continued to be treated as a potential witness, and on Monday 23rd March she made her third witness statement. In that statement she confirmed on two occasions that when she discovered the body on 12th March she did not touch her aunt in any way. In the light of that statement it was decided to treat her as a suspect, and a policy book entry for 24th March reads –

“There is significant evidence to suspect that Susan May has murdered her aunty. The SIO instructs that she be arrested and interviewed on Thursday 26th March 1992.”

14. When arrested and interviewed she denied the offence, and vehemently denied having said anything about scratch marks to Detective Sergeant Rimmer.

The Case at Trial

15. The prosecution case which was presented in the Crown Court in 1993 started with the evidence of opportunity and motive which, as was said later in this court, opened the door to proof of murder but did not, either separately or together, amount to an important element of proof. The other matters relied upon were –

(1) the evidence in relation to the marks on the wall:

(2) the evidence of burglary which, the prosecution contended, was faked:

(3) the remark about scratches allegedly made to Detective Sergeant Rimmer:

(4) lies admittedly told in interview about financial matters, and about the appellant’s association with Christopher Ross:

(5) lies allegedly told by the appellant when giving evidence about conversations she had with Mrs Oakley and PC Roberts soon after the murder, and about her conversation on 18th March with Detective Sergeant Rimmer. PC Roberts had been instructed to take the appellant home on the morning of 12th March 1992, and, according to the officer, the appellant said she felt awful because in her final encounter with the deceased she had been cross with her. When PC Roberts gave that evidence she was challenged, and Mrs Oakley (the neighbour to whom the appellant had gone on the morning of 12th March and who happened to be in court) volunteered that the appellant had said something similar to her. In evidence the appellant maintained that both woman were mistaken, but, as the trial judge pointed out, if those remarks were made they were perhaps more indicative of innocence than guilt.

16. There were one or two other minor points relied upon by the prosecution to which it is unnecessary to refer at this stage. Clearly, as the judge said, the marks on the wall, and in particular the fingerprint on the wall was “the central plank of the prosecution case” so it is worth considering what the expert evidence was in relation to those marks. A forensic scientist, Mr Hussein, went to the deceased’s home on 19th March 1992, about one week after the murder, and saw all three marks. He applied two chemical re-agents to enhance fingerprint detail, namely an iodine spray and ninhydrin. On 24th March he returned to the scene and treated the three areas with a further re-agent, tetra-amino biphenyl (TAB) in order to assist him to express an opinion as to whether the substance on the wall was blood. All three areas demonstrated a positive reaction, and there were no atypical reactions. In other words the material behaved exactly as the scientist expected it would behave if it were blood, and his conclusion was that all three marks were made in blood, but his tests were not sufficiently specific to distinguish between human and animal blood. No realistic source of animal blood seems to have been canvassed at the trial, and the judge did raise the question of where such blood might have come from. There was unchallenged evidence from a fingerprint officer that the left hand mark (JH1) was made by the appellant’s right hand. The left hand which made the middle mark (JH2) could not be identified because the blood had run too much to permit identification of the print. The right hand mark was, as we have said, simply a smear, but another scientist, Dr Basley, was able to discover that the blood which made that mark was of human origin and could not have been animal blood. However he could not say whose blood it was. Mrs Brady (the cleaner) did not recall having seen any mark on the relevant wall on 11th March 1992, although she cleaned in that room and tended to notice that wall which did get marked with tea stains and the like. There has at times been some complaint of the way in which the trial judge summarised her evidence, but having read the transcript of what she said we are satisfied that his summary was accurate. The judge did, however, tell the jury that to make the marks would have required “a great deal of blood”. That was the effect of the evidence at that time, but before the case reached the Court of Appeal in 1997 it became clear that one or two millilitres of blood would have sufficed. The prosecution invited the jury to infer that all three marks on the wall were made in the blood of the deceased by her murderer as he or she felt his/her way along the wall towards the kitchen door after killing her, and that as the appellant’s right hand made the left hand mark JH1 she was the murderer.
17. The appellant gave evidence at her trial, and denied the offence. She specifically adopted what she had said in her three witness statements, and that of course included her assertions that at no time had she touched the body of the deceased. In cross-examination she said “I am more than sure that I didn’t touch her.” She denied the remarks attributed to her by Detective Sergeant Rimmer, Mrs Oakley and PC Roberts, and pointed out that the absence of any sign of forcible entry may be explained by her aunt having left the door unlocked, which, according to the appellant, was something that from to time she did do. On the appellant’s behalf it was suggested that the marks in blood may have been made on an occasion about two or three weeks before 11th March 1992 when the appellant cut her left hand when removing a rubber door stop. She could not think that she would have put her hands onto the wall on that occasion, but her friend Mrs Briggs recalled the incident, which was canvassed for the first time in evidence at the trial. Of course if the marks had been on the wall for two or three weeks prior to 11th March they had not been noticed by either the appellant or Mrs Brady. In his summing up the judge said –

“I suggest, ask yourselves 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 Hussein’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. Caru’s submission about the scepticism which you should show to conclude 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?”

The First Appeal.

18. In the Autumn of 1995 Professor Brinkmann, a German expert chosen by the appellant’s new legal advisers, tested all three wall marks. His investigations were carried out in the presence of Dr Clayton of the Forensic Science Service and demonstrated that the blood in the right hand mark – the smear MSN14 – was very probably that of the deceased, and it was certainly not that of the appellant. No additional information of any significance was obtained in relation to the left hand mark (JH1) but the centre mark yielded results which showed that the blood was human or that of a higher primate. So, as this court noted when the appeal was heard, the additional scientific evidence was of no assistance to the appellant. It tended, if anything, to make it easier to draw the inference as to the origin of all three marks which the prosecution had invited the jury to draw at the time of the trial.
19. In this court it was accepted on behalf of the appellant for the purposes of the first appeal that the two hand prints must have been of the same blood. The screwdriver episode explanation was relegated if not discarded, and the possibility canvassed was that, despite her denial, the appellant may have touched the body of the deceased on which there may have been wet blood on the morning of Wednesday 12th March 1992. Professor Knight expressed the view that if some pressure were applied to the blood blister on the deceased’s left cheek blood would have been released, but if that occurred would it not have been seen by the ambulance men and Detective Superintendent Kerr? The appellant’s experts did not think that inevitably it would have been observed. Dr Lawler found it difficult to envisage that application of pressure and release of sufficient blood to contaminate the appellant’s hands without more obvious overt skin slippage, which he did not see. With the assistance of Dr Bullard, Dr Joseph and Dr Oakley, the theory was advanced that the appellant may have suffered a patchy loss of memory, dissociative amnesia, which would have explained her failure to recollect touching the body and getting blood on her hands.
20. In the light of the fresh evidence this court looked again at the case as a whole including in particular what the appellant said in her written statements, in interview, in her proof of evidence, and in the witness box. The court rejected the suggestion that the appellant may have suffered from a short term loss of memory. There was also at that time a complaint of non-disclosure in relation to the information obtained by the police about Barry Bolton, but the court found no substance in the complaint. Furthermore the case against Barry Bolton in relation to this murder was demonstrated to be unfounded.

Fresh Grounds of Appeal

21. In September 2000, in the light of the investigations made by the Criminal Cases Review Commission, and with the benefit of the Commission’s Statement of Reasons, junior counsel for the appellant drafted fresh grounds of appeal which fall under 5 heads:

“(1) The marks on the wall. The principle submissions now advanced by Mr Mansfield QC on behalf of the appellant relate to the right hand mark (MSN14) which, it is suggested, could have been made on 12th March 1992 by someone other than the appellant, and after investigations began.

(2) Statutory protection. It is submitted that in accordance with the relevant parts of the Code of Practice under the Police and Criminal Evidence Act 1984 the appellant should have been treated as a suspect at an earlier stage, and that because she was not so treated some of the evidence heard by the jury should have been excluded, including in particular the evidence about what was allegedly said to Detective Sergeant Rimmer on 18th March 1992.

(3) The Police interviews dwelt too much on financial matters and were too accusatory in style.

(4) Motive played too big a part in the trial.

(5) Those originally acting for the appellant did not establish that there was material to suggest the real possibility of an unknown assailant.”

22. Only the first two grounds of appeal were developed in oral argument before us, and we do not find that surprising because, having considered the remaining grounds of appeal, we cannot find any substance in any of them. We turn therefore to review the additional evidence, other than that to which we have already referred, before examining the first two grounds of appeal in the light of the case as a whole.

Fresh Evidence

23. It is convenient to look at the fresh evidence in the order in which the witnesses appeared on the scene, rather than in the order in which they happened to be called before us.
24. Detective Superintendent Kerr is now retired. In 1992 he had been in post for two years, and had been a police officer for 25 years. He told us that he was not satisfied with the police log, which was not wholly accurate. That we accept. For example, not everyone shown as entering the house is recorded leaving, but we have no reason to doubt that the log is broadly correct. Detective Superintendent Kerr’s concern was triggered by the brevity of his first two recorded visits, but at this stage nothing turns on that. What is much more significant is that, according to the Superintendent, soon after his arrival at about 10.30 am he opened the curtains in the bedroom and saw the three marks on the wall, including MSN14, the smear. In cross-examination he said “I can say with certainty that I saw all three on the wall shortly after my arrival”. The curtains were later closed after the arrival of the press. He did not make any note of what he did or saw because he did not regard that as necessary, and he did not instruct the photographer Mr Naylor to photograph MSN14 because at the time his interest was in JH1 and JH2 which he thought were connected and might yield fingerprints. MSN14 did not then have any particular significance. In retrospect he clearly regretted that there was no photograph of MSN14, or of the whole wall. In 1992 video recording was used only as a briefing tool, not as a means to record evidence. Detective Superintendent Kerr accepted that he did touch the body soon after he arrived. It was partly an emotional reaction and also to get some idea of how long the deceased had been dead. He did not touch the pillow, and could see that all visible blood was dry and cold. The Superintendent thought that he was probably in the bedroom when under the supervision of Dr Lawler the body was moved out to the kitchen, and Mr Naylor was then asked to photograph the pillow, but the Superintendent does not recall at that stage noticing fresh spots of blood. From the outset he was not convinced by the evidence suggestive of a burglary, partly because there was jewellery and a chequebook which had not been removed.
25. Mr Naylor, the police photographer, arrived with Detective Superintendent Kerr. It was the first time he was assigned to the scene of a murder, and he acted very much in response to directions from the Superintendent. His recollection is of taking photographs around lunchtime and later, but he cannot recall precisely when he photographed JH1 and JH2, nor can he recall anything of MSN14. If he had seen it, or had it pointed out to him he would have taken a photograph of it. Towards the end of cross-examination he did say that he saw three marks on the wall on 12th March 1992, but that seemed difficult to reconcile with the rest of his evidence. He spoke of seeing a speck near the light switch, but if there was a speck it was not significant.
26. On 18th March 1992 Mr Naylor returned to the premises and took samples from the area of MSN14. He also on a later occasion took photographs which show the area of MSN14, but only after it had been subjected to chemical enhancement.
27. Mr Fitton, the video photographer, described his role in terms similar to those used by Detective Superintendent Kerr. For briefing purposes he filmed what he was asked to film, or thought relevant. He was free to “pan around” but had no investigative role. He was not asked to record any of the marks on the wall, nor did he do so.
28. Mrs Ashworth (née McCabe) was in 1992 a trainee reporting officer with the Forensic Science Service, having worked with the service since 1988. She went to the scene to assist Mr Davie. It was usually her job, as on this occasion, to prepare a sketch and to make notes, which were then signed and dated by the reporting officer. She accepts that, as recorded in the police log, on 12th March 1992 she and Mr Davie entered the house at about 1.10 pm and left at 2.07 pm. In that period, she says, they would have had an initial look around but would not have done more pending the arrival of the pathologist, Dr Lawler. She has a recollection of following Dr Lawler into the house but, according to the log, she and Mr Davie re-entered at 2.25 pm and Dr Lawler did not enter until 2.46 pm. Mrs Ashworth recalled that whilst Dr Lawler was examining she began her sketch plan, alongside which she wrote –

“3 areas poss finger/hand prints in blood. Not heavy staining ... left for F/P people”

She told us that there were three separate definite marks, she had a vivid memory of them. They looked like three hand marks in what appeared to be blood and, she said, the body was still on the bed when she made her note about those three marks, as it is clear from what she wrote on the plan, and below the plan about the position of the body. On that same day she carried out the KM presumptive test for blood on all three marks, and all three results were positive. A limited number of other substances such as horseradish could also give positive results.

29. On 26th March 1992 she returned to the house and found a small old stain just above the kitchen central heating radiator, about 6 to 8 inches from the frame of the door into the bedroom, on a section of the wall originally concealed by towels hung on the radiator. The KM test was positive for blood, and in Mrs Ashworth’s opinion that deposit could have been as recent as two or three weeks before the murder if in the interval the radiator was left on. If so it could perhaps be related to the doorstop removal episode of which evidence was given at the trial. On 26th March 1992 Mrs Ashworth collected from the police a Craftsman Baker paper bag which had been removed from the draining board in the kitchen in the deceased’s home. It was intended to be examined further to see if the marks on it were of blood and what its contents were, but those tests were never carried out.
30. Mr Davie was the reporting officer who Mrs Ashworth was assisting. He was an experienced member of the FSS, but in relation to this investigation he was not impressive, and Mr Morris QC for the Crown made it clear to us that Mr Davie was not a witness on whom he would wish to rely. Mr Davie told us that at some point on 12th March 1992 the three marks on the wall had been shown to him, and that when he saw them, the third mark being a fairly formless smear, the body was still on the bed. He confirmed Mrs Ashworth’s evidence that when those marks were KM tested the results were positive, and at a much later stage he made a note to that effect on the plan which Mrs Ashworth had drawn. He also made other notes on that plan. In his statement of 8th July 1992 he said that at the time of his examination at about 1330 hours he noted three small bloodstains which appeared to be wet. In evidence he accepted that there was no wet blood at that time, it only appeared after Dr Lawler’s examination. Dr Lawler did not arrive until 2.46 pm and his examination did not start until some time thereafter. Mr Davie claimed to have seen in the kitchen on the draining board on 12th March 1992 the Craftsman Baker paper bag which Mrs Ashworth collected on 26th March 1992 and which Mr Davie said tested KM positive for blood. But he made no note of it, and it is not mentioned in his statement. It was not until 1995 that Mr Davie completed the paper work in relation to items submitted to the laboratory in 1992 and he accepted in cross-examination that was not the way that it should have been done. Specimens collected on 12th March included some tapes from the body of the deceased, including one from the face. Mr Davie accepted that he probably collected those tapes, and said that he hoped that he would have worn gloves, but they would not, he said, be collected from any part of the skin where there was blood.
31. Dr Lawler said that when examining the body he may have briefly touched the face. He would have been wearing gloves, because that was routine by 1992, and those gloves would be rolled off, so that they ended up inside out, before he left the room. He explained how, after examination, the body would have been encased in plastic sheeting, being rolled to one side with the head supported so that a sheet could be slipped underneath, and then rolled in the opposite direction. The sheets would have been taped, and the sheeted body would then have been lowered into a body bag laid out on the floor, which after it was zipped up had two handles at each end. Dr Lawler believed that in order to sheet the body the duvet and the pillow would have been lifted out of the way, and possibly given to someone to hold. When in the body bag the body would not have been difficult to manage. The deceased only weighed 8 stones and Dr Lawler’s recollection was that he and someone else who was present carried the bag out to the kitchen where it was handed over to the undertakers. He could not envisage any way in which during that process a mark could get on to the wall at a height of 4 feet 6 inches. There would be no blood on the outside of the body bag, none on the hands of those carrying it by its handles, and it would never be lifted to a height of 4 feet 6 inches above the floor. He explained the positions of the three scratches on the face of the deceased – one on the chin and two between the nose and the upper lip. He accepted that, as suggested by the photographs of the pillow, there may have been a small discharge of blood as he examined or as the body was being sheeted up. He had no particular explanation to offer of the flakes of dried blood found on the pillow of the other bed in the room, the one not used by the deceased.
32. Mr Javaid Hussain of the FSS did not go to the home of the deceased until 19th March 1992, a week after the murder. He went to apply re-agents to the three marks, to make them more discernible for the purposes of hand and fingerprint comparison. By then Mr Naylor had taken his samples from the area of the third mark, the smear. On 24th March Mr Hussain returned to the house to test the marks for the presence of blood. Those TAB tests were positive. On that day Mr Hussain noted the Country Baker paper bag on the draining board in the kitchen. It contained teabags and meat scraps. There was a very small area on it which responded positively to the KM presumptive test, and he advised that it be submitted for examination, but as it was not his area of expertise he left it where it was. As we have already noted it was collected from the police by Mrs Ashworth two days later.
33. We also heard evidence from Dr Clayton of the FSS who was with Professor Brinkmann in 1995. His explanation of what happened at that stage we have already considered when dealing with the first appeal.

Submissions – Ground 1

34. Mr Mansfield submits that what was not really investigated at the time of trial was whether the right hand mark MSN14 was there from the time that enquiries began on 12th March 1992. It was not photographed on that day and, Mr Mansfield submits, it is no longer safe to infer that all three marks were in place before the removal of the body. In order to make that mark there had to be some blood of the deceased in a state in which it could be transferred, but that potential source of blood was created at the time of Dr Lawler’s examination or when the body was being wrapped and bagged. Someone, it is suggested, may have helped Dr Lawler without wearing gloves and left the mark, not at body level but at hand level.
35. Mr Mansfield recognised that even leaving aside Mr Davie and Mr Naylor there are two witnesses, Detective Superintendent Kerr and Mrs Ashworth, who claim to have seen all three marks before the body was moved, and the submission is that both of those witnesses may be mistaken. It is pointed out that Detective Superintendent Kerr’s early visits, according to the log, were brief so, it is suggested, he may be mistaken when he says that he saw the marks as soon as he went in. He made no written record of them prior to his witness statement of 13th May 1992 in which he speaks of seeing “what appeared to be blood stained marks” without specifying the number of such marks. Mr Mansfield submits that if the marks, and in particular the third mark, were there in the morning others would have seen those marks also.
36. Mrs Ashworth of course did say that she saw all three marks before the body was moved, and noted them. Mr Mansfield pointed out that in her first statement she was wrong in her recollection of following Dr Lawler into the house when she and Mr Davie arrived, and Mr Mansfield submits that she may also have been mistaken when she says that she saw all three marks before the body was moved.
37. Turning to one of the other marks JH1, the left hand mark made by the appellant’s right hand, Mr Mansfield submits that although the possibility of it being made in animal blood was discounted at the trial there was a potential source of such blood in the kitchen, namely the Craftsman Baker paper bag. In that room there was also the old mark above the radiator, and Mr Mansfield reminded us that a mark on a dress belonging to the deceased did test positive for bovine blood. Mr Mansfield suggested that the mark JH1 might have been made by the appellant leaning against the wall whilst talking to someone in the bed.
38. For the Crown Mr Morris submitted, and we accept, that where this court is asked to consider fresh evidence and to re-interpret evidence not previously relied upon, that must be done in the context of the material available at the trial, the instructions given by the defendant at the time of trial, and the manner in which in consequence the case for the defence was conducted at trial. Mr Morris points out that at trial MSN14 was of relatively little importance. It was human blood but it had not then been determined whose blood it was. Much more significant were the two hand prints JH1 and JH2, which were made in blood, and one of which was known to be the hand print of the appellant. Mr Morris submitted that the inference was obvious. Both marks were made by the same person on the same occasion. The jury was invited to draw the further inference that the marks were made in the blood of the deceased. The defence explanation was that they may have been made in the appellant’s own blood at the time of the doorstop removal episode two or three weeks earlier. That explanation only emerged in evidence at the trial and could only be accepted if Mrs Brady, the cleaner, failed to see the marks on more than one occasion.
39. As a result of Professor Brinkmann’s investigations the defence adjusted its position for the purposes of the appeal in the way to which we have already referred, despite the difficulty of trying to explain how any significant amount of the deceased’s blood could be transferred onto the hands of the appellant at about 9.30 am on 12th March 1992. Now, Mr Morris submits, there is a further change of position. There has been speculation as to the source of the blood in JH1 and JH2. May it have been animal blood? But the evidence was that the appellant did not cook or prepare food at the deceased’s home, and, for what it was worth, the evidence in relation to the Craftsman Baker paper bag and the mark near to the kitchen radiator was available at the time of trial. Furthermore, the tests carried out by Professor Brinkmann show that the blood in the mark JH2 is human, or that of a higher primate, so the basis for the inference that both JH1 and JH2 were made in the blood of the deceased is stronger than it was at the time of trial and, Mr Morris submits, the appellant has no innocent explanation for such marks.
40. Turning to MSN14 Mr Morris reminded us that at the time of the first appeal it was accepted that all three marks were made on the wall at the same time and, he submits, that was realistic because they were all at the same height, and probably, the Crown submits, made by the appellant feeling her way back towards the kitchen, hence the diminishing amount of blood. At trial the evidence of Detective Superintendent Kerr that he saw the three marks at 10.30 am was not challenged. Had it been challenged it is possible that at that time other officers would have been able to recall making a similar observation, so no positive point for the appellant can be made out of the fact that only one police officer now speaks of the existence of those marks at that time. Mr Morris submitted that Detective Superintendent Kerr was an officer whom we should regard as careful and honest, and we should adopt a similar approach to Mrs Ashworth, who in relation to important issues had the support of her annotated sketch. There was also positive evidence that there were no other marks on the relevant wall. In the light of Dr Lawler’s evidence it was, Mr Morris submitted, unrealistic to think of MSN14 getting onto the wall at the time when the body was moved.

Submissions - Ground 2

41. Mr Mansfield submitted that by 13th March 1992 Detective Sergeant Rimmer knew that the appellant was saying that she had not touched the body, and the officer regarded that as significant as she noted it in capital letters, and incorporated it into her typed report R17. Against that background if, as the officer contends, the appellant did on 18th March refer to the scratches and the possibility of getting “stuff from down your fingernails” then, from that moment if not before, the appellant should have been treated as a suspect. She should have been cautioned and asked to check and sign the record of what she had just said. Her subsequent statements should have been made under caution, and if not regarded as a suspect on 18th March she should certainly have been so regarded on and from the moment on 20th March when Detective Superintendent Kerr learnt that the left hand mark JH1 was made by her hand. If so regarded and arrested she would have a proper opportunity to take legal advice before making her statement of 23rd March. In this context we were referred to three paragraphs of the current Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers made under the Police and Criminal Evidence Act 1984. Paragraph C10.1 so far as relevant reads –

“A person whom there are grounds to suspect of an offence must be cautioned before any questions about it ... are put to him regarding his involvement or suspected involvement in that offence if his answers or his silence ... may be given in evidence to a court in a prosecution”

42. Paragraph 11.13 states –

“A written record shall also 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 a 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 shall be recorded.”

43. Mr Mansfield also invited our attention to paragraph C11.2A which reads –

“at the beginning of an interview carried out in a police station, the interviewing officer, after cautioning the suspect, shall put to him any significant statement or silence which occurred before his arrival at the police station, and shall ask him whether he confirms or denies that earlier statement or silence and whether he wishes to add anything. A ‘significant’ statement or silence is one which appears capable of being used in evidence against the suspect, in particular a direct admission of guilt, or failiure or refusal to answer a question or to answer it satisfactorily, which might give rise to an inference under Part III of the Criminal Justice and Public Order Act 1994.”

44. It is common ground that paragraph C11.2A was not in force in 1992, but Mr Mansfield submits that we can refer to it to assist us as to what would have been fair, and it is clear that at the beginning of her formal police interviews the appellant was not asked to confirm what she was alleged to have said earlier about the scratch marks. That point was nor canvassed until her 5th interview on 30th March 1992.
45. In relation to this ground of appeal Mr Morris submitted that the police were dealing with a woman who was known to be a good carer and of entirely good character. Despite her proximity to the deceased there was initially no real reason to suspect her when she spoke as she did to Detective Sergeant Rimmer on 18th March. The remark, even if surprising, was not incriminating if she could have learnt of the scratches otherwise than by committing the crime, and that possibility had to be investigated. It is true that on 20th March Detective Superintendent Kerr knew whose hand made the mark JH1, but by then he may not have known what Detective Sergeant Rimmer knew (i.e. that the appellant was saying that she had not touched the body) because he may not have seen her report R17. So, Mr Morris submits, there was no need to caution in pursuant to paragraph C10.1 prior to the taking of the third witness statement on 23rd March 1992, and in any event the whole procedure was conducted in good faith. The appellant was not prejudiced by not being cautioned earlier because from 13th March 1992 onwards it has always been her case that she did not touch the body. Far from seeking to exclude her statement of 23rd March that statement was relied upon by counsel at her trial to show her consistency, and Detective Sergeant Rimmer’s failure to caution her on 18th March immediately after she allegedly enquired about scratches was used by the defence as a means of casting doubt on whether anything about scratches was said. That, Mr Morris submits, was a perfectly understandable forensic decision which cannot be re-opened now.

Conclusions

46. Having regard to the history of this matter we consider it expedient in the interests of justice to receive the additional evidence adduced before us pursuant to section 23 of the Criminal Appeal Act 1968.
47. We found Detective Superintendent Kerr and Mrs Ashworth to be impressive witnesses and we see no reason to doubt their evidence that separately they observed all three marks on the wall at an early stage, well before the body was moved from the bed. We reject as fanciful, and in conflict with their evidence, any suggestion that the third mark may have got there as a result of transfer by Detective Superintendent Kerr, Mr Davie, Dr Lawler or whoever assisted Dr Lawler with the removal of the body. In reality there was no liquid blood available to transfer until Dr Lawler examined the body and, quite apart from the observation evidence which we accept, for the reasons explained by Dr Lawler we cannot see how the third mark could have got onto the wall thereafter. That means that the marks on the wall close to the body of the deceased constitute even more telling evidence against the appellant than they did at the time of trial. The position in relation to JH1 has not changed. It is still a handprint made by her right hand in blood. JH2 is a print made by a left hand, but it is now known to be made in human blood, or the blood of a higher primate. MSN14 is a smear of the deceased’s blood. Having regard to the evidence of Mrs Brady, and now that of Detective Superintendent Kerr and Mrs Ashworth, it is clear that all three marks appeared on the wall at about the time of the murder, and certainly before the investigating officers arrived on the morning of 12th March 1992. Plainly it was open to the jury to infer, as no doubt they did, that all three marks were made at the same time, in the deceased’s blood, at the time of her death, and consequently the identification of the appellant’s right hand in relation to JH1 constitutes damning evidence against her.
48. Turning to Ground 2, we accept that there were no grounds to suspect the appellant of having committed an offence such as to require that she be cautioned in the earlier stages of the inquiry. Her early assertions to Detective Sergeant Rimmer that she had not touched the body did not become significant until 20th March 1992 when it emerged that it was her hand print on the wall. Similarly what she allegedly said to Detective Sergeant Rimmer on 18th March, even though it surprised the officer, did not constitute grounds for suspecting the appellant of the offence until the possibility that she could have innocently learnt of the existence of the scratch marks was ruled out. If on 20th March, when Detective Superintendent Kerr was told whose hand print was on the wall he already knew that the appellant had said that she did not touch the body of the deceased, then, in our judgment, he had grounds to suspect her of an offence, but whether or not he knew at that stage is far from clear. It seems that on 23rd March, when Detective Sergeant Rimmer took the witness statement, she did not know whose hand print was on the wall, but when the statement obtained that day was considered by Detective Superintendent Kerr, together with what he already knew as to the origin of the hand print, he, on 24th March 1992, rightly gave instructions that the appellant be arrested and interviewed under caution. In that sequence of events we are unable to detect any breach of any provision of any code which was then in force, and we see no reason to treat later changes in the Code as though they were in force at the relevant time. Even if there had been a breach, the fact is that at the trial no application to exclude evidence was made for the very good reason that those acting for the appellant wanted to use most of what she is recorded as having said to the police to demonstrate her consistency. In those circumstances the judge could not possibly of his own motion have excluded the evidence, and it must still remain part of the evidence as a whole for consideration by this court. Of course we recognise that the defence did not rely upon what the appellant allegedly said to Detective Sergeant Rimmer on 18th March 1992, but in our judgment any application to exclude that evidence was bound to fail because, for the reasons we have explained, at that stage there were no grounds to suspect the appellant.
49. With the benefit of hindsight it is unfortunate that Detective Superintendent Kerr and Mrs Ashworth did not record the time at which they separately observed the three marks, and that Detective Superintendent Kerr did not cause Mr Naylor to photograph all three marks. The reason is obvious. At the time the third mark did not appear to be of great significance, and it is unrealistic to expect every step at an inquiry to be time-recorded, whatever its significance. It is also unfortunate that the evidence of the reporting officer assigned to this case by the FSS was such that counsel appearing for the Crown before us felt obliged to invite us to set it aside, and the shortcomings of that witness may explain why there seems to have been no further examination of the Craftsman Baker paper bag. But the significance of that item was overtaken by events, and, for the reasons which we have explained, we do not think that the conviction is unsafe. We must therefore dismiss this appeal.