Regina v. Smith (2011)

[L.J.Steele]

Discussion of English fingerprint methods and training, ultimately quashing a conviction due to problems in the fingerprint comparison.

http://www.bailii.org/ew/cases/EWCA/Crim/2011/1296.html

[Iain McKie]

This case should set alarm bells ringing throughout the UK . Time and time again I have hinted at the fingerprint hierarchy within the UK being incapable or unwilling to learn the clear lessons arising from the SCRO debacle. This case highlights how legitimate my concerns are.

To a layperson the levels of incompetence, possible deceit and flawed procedures hinted at are staggering and really should act as a wake up call to experts everywhere.

The similarities with the SCRO debacle are substantial with changed opinions, alleged double touch, different sets of photographs, technological issues and other 'reasons' being brought into play to explain differences away. There are even hints of possible police pressure to obtain an identification.

Peter Swann’s part in this case raises major issues which require to be pursued. Why given the very serious allegations levelled against him at the Fingerprint Inquiry and elsewhere was he ever engaged to act for the defence and allowed to offer evidence at the appeal?

Time and time again procedures criticised at the Inquiry were presented as normal practice in this case. How given the publicity that the SCRO debacle has been given across the world could both the Crown Prosecution Service, police and defence allow this debacle to occur?

While I will be moving to have these matters investigated it is to be hoped that there is no question of a retrial before the Fingerprint Inquiry reports.

http://www.thisisnottingham.co.uk/news/ ... ticle.html

[Taggart]

http://www.thelawpages.com/court-cases/ ... 6884-1.law

His original conviction for the murder of a 71-year-old female victim has been quashed. The reliability of the fingerprint evidence and quality of the fingerprint evidence put before the jury used to convict him was placed in doubt. The bloody fingerprint, was said to have had 12 points of similarity to his left forefinger and no points of dissimilarity, however, it was one of more than 150 prints recovered from the scene and no notes of the experts reasons nor a 'comparison contemporaneously on a chart' to identify the points was presented to the court.

Lord Justice Thomas said: "This is one of the very few cases where fingerprint evidence has been challenged at trial since 1999 and, as far as we are aware, the first since then to come before this court on appeal where this court has had to hear fresh evidence. The quality of the reports provided by the Nottinghamshire Fingerprint Bureau for the trial reflected standards that existed in other areas of forensic science some years ago, and not the vastly improved standards expected in contemporary forensic science. The presentation of the evidence to the jury made no attempt to use modern methods of presentation."

[Big Wullie]

Mr Gore's evidence was that the new images of the appellant's prints showed the incipient detail in the furrows; they were not pores on a ridge; he had also compared the Livescan images to the inked impressions where the ink would be on the ridges and they corresponded. Mr Swann agreed with the interpretation of these images of the appellant's print.

However they remained in disagreement as to which were furrows and which were ridges on the image of the print on the door handle.

Sounds like the same old same old we heard at the McKie Enquiry

It was suggested to Mr Gore that the difference did not matter, but Mr Gore regarded it as crucial, as each was identifying something different.

(ii) The double touch Double Touch ?

Mr Gore's evidence to us was that in his examination of the print on the door handle in February 2008 he had identified the fact that the person who left the print had touched the handle twice – a double touch. There was no reference to the double touch in any of Mr Gore's statements; he told us he did not tell the police. He reported it as one print, as he considered that the second touch was not sufficiently clear to provide any identification. There was nothing on the photograph on which the 12 points of similarity were originally marked to identify for the jury that there had been a double touch. He told us he did not do so because neither Ms Tweedy nor Mr Bunter had suggested that the ridges shown were continuous.

In the second bundle he produced for the jury, he drew on the principal photograph a line and two duplicate numbers. He provided no explanation for this in writing; when his cross-examination resumed, he then explained for the first time his double touch case. He explained that there were two points with the same number (his duplicate 2 and 3) and that there were two duplicates; the line was the division between the two touches. The evidence he gave was not challenged in the way it was challenged before us.

Although the question of a double touch had no significance in the trial, it became central to Mr Gore's rebuttal of Mr Swann's evidence in the hearing before us. Mrs Wardle told us that she had not considered the double touch much at the time she made her identification, but gave evidence supporting Mr Gore's view.

Mr Swann's evidence was that:

i) There were four points of similarity (A, B, C, D) which were ridge characteristics; Mr Gore was in agreement with these as ridge characteristics. Mr Ford was adamant in saying that the characteristics were not the same.

ii) He identified six points of dissimilarity (1, 2, 3, 4, 5 ) which were on the print on the handle and were not on the appellant's print and a further point (6) which was on the appellant's print but not on the door handle;

Same Old Same Old right enough.

My concerns are with their new move to non numerical systems.

If they cannot point to and prove similar characteristics and prove beyond reasonable doubt with 16 points then how do they expect to convince people with this non numerical system which could see people convicted with less than 8 points ?

53. (c) Clarity of the left side of the print
54. Mr Swann identified 10 points on the left side of the print which he said could not be seen on the appellant's print.
There is plainly a need for the points that have arisen in this case to be the subject of wider examination. We have been told that an enquiry by the Rt Hon Sir Anthony Campbell into the case of HM Advocate v McKie known as the Scottish Fingerprint Enquiry has heard extensive evidence in relation to fingerprint evidence in Scotland. It is not for us to comment more than we have done at paragraph 61 in relation to the practices that have come to our attention in this appeal. In our view, however, there is a real need for the ACPO, the Forensic Science Regulator and the recently established Fingerprint Quality Standards Specialist Group to examine as expeditiously as possible the issues we have identified, to assess the position and to ensure that there are common quality standards enforced through a robust and accountable system.

Does this mean there will be another English Enquiry ?

[Sam the man]

Is someone going to make sure that the Scottish Fingerprint Inquiry is aware of this? – surely they must be?

Is some MP going to ask questions about this to the relevant minister in the UK House of Commons?

[Big Wullie]

I wonder if Russell & Leadbetter are involved anywhere along the lines ?

You are absolutely correct Sam the Scottish Fingerprint Enquiry should know of this development.

I am left wondering just exactly how many more cases there are from these incompetents.

It is possible others are languishing in prison wrongly on their evidence.

[Taggart]

As much as I find the content of the Appeal horrifying, I am afraid I find the Integrity of the Report seriously damaged.

It cannot be forgotten it relates to a horrendous crime of murder.

I too was alarmed by the involvement of Peter Swann and this is where the Report I believe to be fatally flawed.

Let me explain. If we look at the Report closely we find the following observation:

[It is for a judge to decide whether a person is a competent expert, not the police]

If these are the findings of the Appeal, then equally this must also apply to that very Appeal and those who give evidence at it.
So at this Appeal the only person who could decide on the competence of any given Expert is the Judge.

The Report then quite unbelievably states with regard to Swann:

[He had over 50 years experience, but had received no on-going training, save for attending lectures and conferences on fingerprinting.]

No on-going traing? Straight away alarm bells had to start ringing.

Swann’s involvement started in this case in February 2009. The Appeal at which he gave his evidence were held in October and December 2010.

By this time Swann had been completely discredited over his two misidentifications in the Marion Ross case by numerous independent investigations.

By this time he had received a letter of Censure from the IAI over his two misidentifications.

By this time he had publicly admitted he was not an expert in forgery and fabrication after claiming to have been such, which I believe to be a fraudulent act.

By this time he had been publicly exposed at the Justice 1 Committee as having lied to them during his evidence.

By this time he has advertised as having been involved in ‘most of the high profile cases in the UK’. That is more than half, and is what I believe to be a complete lie.

By this time he had also made statements to allege he had personally found two misidentifications during his Independent checks, but there is not a single scrap of evidence to support his claims.

But as we learn it is for the Judge to determine who is or is not a competent expert.

In this case I believe Swann should never ever have been allowed to be anywhere near any such important Appeal given his past.
The fact he was, must mean the Judge saw him to be a ‘competent’ expert!

Based on what? I see no justification in this Report as to why they deemed Swann competent given his known past. They offered evidence to show how they checked out Catherine Tweedy but none to show how they checked out Swann.

When the Fingerprint Inquiry Report comes out and once again discredits Swan where exactly does it leave this Appeal Finding?
It may be of course that Swann deliberately withheld critical information from this Appeal Hearing.

Or it may be the Judge(s) in this Appeal did no research or do any checks on Swann. The fact they record he received no on-going training must have raised serious concern.

I believe there is more than the mere fingerprint content to be seriously concerned about in these findings.

[Iain McKie]

Sam the Man asks:

Is someone going to make sure that the Scottish Fingerprint Inquiry is aware of this? – surely they must be?

Is some MP going to ask questions about this to the relevant minister in the UK House of Commons?

This is a matter I intend to take up with the Fingerprint Inquiry and a number of English authorities.

I remain disappointed but not surprised at the lack of input from English experts on a case that taints their whole system.

[Pat]

Could it be that the emergence of this case at this time is the very reason for the delay in the release of the report of the Fingerprint Inquiry?

Could it be that the Inquiry team does not want to be seen as influencing another unsettled, high profile case?

[Taggart]

When I started to read the report of the Appeal I thought the defence was going to be based on the evidence heard at the original Trial.

That is the they believed the print identified by the Nottingham experts was deemed to be insufficient and therefore any such identification was at best ‘unsafe’.
As I read the report things seemed to take a rather strange twist.

For no longer was the defence argument regarding the print being ‘insufficient’. Their case actually changes to evidence the print, earlier disputed by the initial defence expert at the tria as being insufficientl, to now containing twenty characteristics, sixteen of which are deemed not to be in agreement.
I can read this in no other way as the defence, through their expert, now claiming the print in question was actually erroneously identified.
I will try and explain my reasoning by reference to the Appeal Report.

In the Report it states:

It is clear from the summary of the evidence we heard that there was a clear conflict between the experts. We will consider the conclusion to be drawn from this in the context of our consideration of the safety of the conviction….

So let us look at the so-called clear conflict more closely.

At the original Trial the Nottingham experts testified they found 12 points in agreement on the print in question.

The Defence Experts, Catherine Tweedy and Simon Bunter offered the following conclusions.

Tweedy:

A report was produced by her dated 19 September 2008 which was disclosed to the Crown. In it she ….concluded that the print on the door did not possess 12 ridge characteristics for matching purposes.

Bunter:

Mr Bunter's evidence was that he had never seen a fingerprint officer identify a print of such poor quality…. He considered there were only two clear ridge characteristics in the area on which Mr Gore had relied.

In 2008 the opinions of the two defence experts are quite clear. The print in question does not contain 12 characteristics for comparison purposes.

Enter Peter Swann, the Doyen of the Fingerprint World. 77 years old and already totally discredited. And as reported with no-on going training.

Does he agree with the findings of the first two defence experts?

Far from it, in fact his findings totally undermine their findings.

Mr Swann's evidence was that:
i) There were four points of similarity (A, B, C, D) which were ridge characteristics; Mr Gore was in agreement with these as ridge characteristics. Mr Ford was adamant in saying that the characteristics were not the same.
ii) He identified six points of dissimilarity (1, 2, 3, 4, 5 ) which were on the print on the handle and were not on the appellant's print and a further point (6) which was on the appellant's print but not on the door handle;
…….Mr Swann identified 10 points on the left side of the print which he said could not be seen on the appellant's print.

He remarkably finds 20 characteristics in the print in question.

And during the Appeal the defence rely on yet another expert. Unbelievably his evidence then undermines Swann!

Mr Swann's evidence was that:
i) There were four points of similarity (A, B, C, D) which were ridge characteristics; Mr Gore was in agreement with these as ridge characteristics. Mr Ford was adamant in saying that the characteristics were not the same.

Ford was adamant that the four characteristics Swann found in agreement were ‘not the same’.

The defence experts are totally destroying themselves!

Ford is discrediting Swann and Swann is discrediting Tweedy and Bunter. Equally by their earlier evidence Tweedy and Bunter are in fact discrediting Swann!
The evidence of the Nottingham expert appears to be consistent with the evidence at the Trial maintaining the position of 12 points.

I am not for one minute supporting the Nottingham experts, only making some observations based on this report.

It stated:

It is clear from the summary of the evidence we heard that there was a clear conflict between the experts.

Absolutely, but the reality is most of that conflicting evidence actually came from the four defence experts!
I find it remarkable their is no reference anywhere in the report of Swann’s new evidence clearly alleging the print is no longer insufficient as had earlier been claimed, but now in fact contains 16 characteristics in disagreement!
Is there any other way to interpret his evidence? Twenty characteristics, with 16 in disagreement?
I find it startling that the Judge who took this Appeal was not fully aware of the change in the defence position and saught clarification. Why did they not call Tweedy and Bunter?
The fact they were all clearly disagreeing with each other.

I am a little perplexed by the observation:

There is plainly a need for the points that have arisen in this case to be the subject of wider examination.

What exactly do they mean?
The one thing they had to insist on was to have the print in question independently peer reviewed.
Is this among their observations?
I don’t see it.
Based on total confusion within the four defence experts they saw fit to quash a murder conviction.
If this wasn’t so serious it would be laughable.

Paragraphs 63 to 89 not to be published until after the re-trial.

A re-trial? Is someone having a laugh?

I can see it now. Call witnesses Tweedy and Bunter. Let them discredit Swann’s ‘expert’ findings. Call Swann and let him totally discredit Tweedy and Bunter’s evidence. Add Ford into the equation and have him discredit Swann’s evidence.

What a wonderful advert for the fingerprint science.

Here is a question. What are the experts in England doing about this case?

Sitting back burying their heads?

Someone prove me wrong and tell me that collectively action is being taken, or will be taken to resolve this print. Please.

Swann has testified he must believe there was a misidentification within the Nottingham Bureau involving no less than the Manager of that Bureau.
Is anyone intending to take action to have the mark in question independently assessed?
For the sake of the science?
Or is it easier to simply turn the other way and pretend everything is rosy?
The bottom line is, as was the case in the McKie, either the print in question does or does not contain sufficient detail to individualize, and if it does either it was or was not made by the individual in question.

I genuinely fear for the Science in the UK at present.

[Les Bush]

Hi Taggart,

This will be my last year working in forensic science but I am still motivated to protect the credibility of fingerprints as an applied science. Accreditation of forensic laboratories has been one initiative that appears to be working well to produce a reliable and quality assured result. Is Nottingham Fprints laboratory accredited? If so this ruling by the judge begs the question of what standard of quality assurance is being maintained at Nottingham. To lose the conviction of a murder suspect due to poor presentation of fingerprint evidence is truly disturbing. You can probably guess my views about Swann et al and yet again he ends up causing a controversy, he is a magnet for disputes. I would like to see the fingerprint evidence as we did in the McKie case, the American expert Tweedy would have access to the material sent by defence so unless there is a caviet to prevent distribution then seeing the evidence will provide a far better understanding of what was examined. Just when you thought it was turning a corner Taggart they have pulled you back again.

Regards. Les

[Iain McKie]

Hi Les,

Always good to hear from you on the forum.

I believe that the Fingerprint Inquiry Report will deal with many of the issues raised in this latest case.

You state.

This will be my last year working in forensic science but I am still motivated to protect the credibility of fingerprints as an applied science.

While the operational end of the science will lose your talents it is encouraging to hear of your motivation which in some ways can be enhanced by the freedom that retirement often brings.

My point continues to be that across the world we have experts like you who are unafraid to speak out forcefully and consistently. Unfortunately there are few in the UK who are willing to put their heads above the parapet and those who do are quickly pulled down to join the other heads in the sand. The fact is that your profession must put its house in order or others will do the job.

You correctly make the point that faulty analysis and procedures in addition to ensnaring the innocent can allow the guilty to go free.

There is a very strong argument that so called Independent experts like Peter Swann represent a real and present danger to your profession as they continue to operate unchecked and unsupervised.

One of the issues raised by this case is that despite the years of debate in the UK there is still no satisfactory way of resolving identification issues in an adversarial system that demands expert be set against expert. At the Fingerprint Inquiry Arie Zeelenberg the Dutch expert raised the issue of centralised resolution via an independent panel from the ‘European Network of Forensic Science Institutes’ (ENFSI). This surely is the way ahead.

http://www.enfsi.eu/

Best wishes,

Iain

[David L. Grieve]

Les, I have been dealing lately with tributes to those no longer with us and the shock of such brilliant minds silenced has made my adjustment difficult. In your case, the completion of an exceptional career has no bearing on your future contributions. You are one of those rare people who can analyze any premise with remarkable skill until you own it. That gift is not dependent on who you work for but on who you are.

I agree with Iain that your willingness to share your thoughts, seek the moral highground and state your well reasoned conclusions for all to read and critique is in extremely short supply. Iain may be disappointed in the laok of response from the UK but the sad reality is that many, many others in many, many countries decline to be so open. You, my friend, are made of sterner stuff. Iain thanks you, I think you but so do a multitude of others who might be reluctant to say so. I expect to hear from you for a long time.

[Taggart]

Les, as always a pleasure to hear from you.

I was given some further shocking news regarding yet another case involving Peter Swann in the last few months in England.

It appears he visited a Bureau to check work, and then subsequently claimed their identification was in fact erroneous!
Given his findings alone, the Crown Prosecution Service decided to drop all the Fingerprint Evidence in that case.
I also have it on good authority the print was reviewed and was indeed an identification.

The total lack of any regulation within the UK, and perhaps Worldwide regarding not only the training but indeed the actual of competence for Independent Experts is truly frightening.

I go back to Swann’s ‘false advertising’ where he currently claims to be involved in ‘most’ of the high profile cases in the UK.

The same individual who I believe fraudulently took money for services relating to his so-called expertise in forgery and fabrication.

I have a resolution for the recent case Regina v Smith.

I believe Nottingham must have a Standard operating Procedure to deal with Erroneous Identifications. Unlike the recent misidentification in the West Midlands that was investigated by the Bureau Manger, Nottingham cannot do this given the Manager is accused by Swann of erroneously identifying the print in question.
The simple solution for me is for Nottingham to force the issue by invoking their procedure for Erroneous Identifications and requesting an external independent verification of their identification.

I am also curious at what point Nottingham and the Crown Prosecution Service became aware of the change of position of the defence? Were they given access to Swann’s evidence and charts prior to the Appeal?

Out of curiosity perhaps Dave Charlton or Richard Case might be so good as to explain what the current Operating Procedures are within perhaps their own forces regarding erroneous identifications are?

With particular attention to the procedure where the Manager is personally accused.

Also are Nottingham in any way accredited, and if so does there not need to be an investigation if any error occurs?

Clearly if Nottingham, are confident of their conclusions, then they have nothing to fear and everything to gain by clearing their name.
After all this is the second case of Misidentification against their Bureau.
I would also suggest that any such independent verification of the work then is asked to look at Swann’s own Report and Charts.

[Pat]

Skegby man has Hilda Owen murder conviction overturned

A MAN who was jailed for murdering Skegby pensioner Hilda Owen has had his conviction overturned.

Judges at London's Appeal Court made the decision to overturn Peter Smith's conviction based on the poor quality of fingerprint evidence.

Lord Justice Thomas said the quality of fingerprint evidence put before the jury "reflected standards that existed in other areas of forensic science some years ago and not the vastly improved standards expected in contemporary forensic science."

Mr Smith, 46, of West Hill, Skegby, Notts, was jailed for life in 2008 after being convicted of killing his 71-year-old neighbour Hilda Owen, who was found dead at her home in March 2007.

Appeal court judges have now quashed this conviction and ordered a retrial.

The judge said the circumstantial evidence against Mr Smith included the making of a 'will' in his favour, his involvement in her affairs, his financial difficulties and his opportunity to kill her.

However, central to the prosecution case was a bloody fingerprint found on a door handle at the pensioner's house, which was one of about 200 prints recovered from the scene.

Although the print was of extremely poor quality, a highly experienced forensic expert at Mr Smith's trial said there were 12 points of similarity to his left forefinger and no points of dissimilarity.

However, after hearing fresh expert evidence on the finger print, Lord Justice Thomas said: "This is one of the very few cases where fingerprint evidence has been challenged at trial since 1999 and, as far as we are aware, the first since then to come before this court on appeal where this court has had to hear fresh evidence."

The judge added that there had been no explanation given to the Appeal Court as to why no detailed notes were kept by the Nottinghamshire Fingerprint Bureau of the examination of the bloody fingerprint, something which is now the "universal practice" in other forensic fields.

Neither the original examiner, nor those who confirmed his findings, "made any notes of their reasons and did not identify the points of comparison contemporaneously on a chart".

Mr Smith has always denied the murder of Mrs Owen, who died after being hit 29 times over the head with a claw-hammer and screwdriver and strangled at her Skegby home.

The prosecution case at trial was that civil servant Mr Smith, who worked for the Department of Work and Pensions, planned to inherit the pensioner's house and pay off his debts.

No date has yet been set for his retrial.

See: http://www.thisisnottingham.co.uk/news/ ... ticle.html

Hi Taggart

What's the story on this one? The newspaper says it was a 12-point identification, but the appeals court threw out the fingerprint evidence because the expert did not chart the identification. Is there more to it than that?