No: 9802835/Y2

IN THE COURT OF APPEAL
CRIMINAL DIVISION
 
                               Royal Courts of Justice
                               The Strand
                               London WC2
 
                               Friday 30th April 1999
 
                    B E F O R E :

                THE VICE PRESIDENT
              (LORD JUSTICE ROSE)

 
                 MR JUSTICE McKINNON

                         and
 
                 MR JUSTICE COLLINS
 
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                     R E G I N A
 
                       ‑ v ‑
 
                 ROBERT JOHN BUCKLEY
 
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   Computer Aided Transcript of the Stenograph Notes of
           Smith Bernal Reporting Limited
          180 Fleet Street, London EC4A 2HD
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        (Official Shorthand Writers to the Court)
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MR A CONRAD appeared on behalf of the Appellant
MR P DOCKERY appeared on behalf of the Crown
 
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                      JUDGMENT
             (As Approved by the Court)
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                   Crown Copyright
  
                               Friday 30th April 1999
THE VICE PRESIDENT:  On 30th March 1998, at Manchester Crown Court, following a trial before Holland J, this appellant was convicted of aggravated burglary on the first count in the indictment, and sentenced to 5 years' imprisonment.
      He appeals by leave of the Single Judge against his conviction, in relation to a ground which challenges the judge's decision to admit certain fingerprint evidence.
      The facts can be quite briefly rehearsed.  On 1st March 1997, a 75 year old lady called Mrs Griffiths was at home, at about 10.15 pm, when she was confronted by a white male, approximately 5 foot 9 inches tall, of slim build, masked, wearing a navy blue jacket, black woollen hat, gloves and two Balaclavas across his face.  She subsequently described him as being between 25 and 30. She referred to him having mid‑brown eyebrows.  He was armed with a knife.  He pushed her down and stole various items of her property, which included a pension and building society book.
      A woman called Elizabeth Docherty, who lived not far away, gave evidence that, at about 10.30 pm on the same evening, she was at home when the appellant, whom she had known for several years, knocked on her living  room window, wanting to be let in. He was, as she described him, "in a bit of a state".  He looked as if he had been running and appeared worried.  She let him in, eventually. He went upstairs to the bathroom and emptied the contents of two carrier bags on the floor: these included a social security book and a bank book. He was excited and talked about going on holiday.  He gave her £20 for letting him in and £15 for looking after one of the bags, which contained the pension and building society books.  He left after about 20 or 30 minutes.
      Inside the bag, she said, she found a knife and a woollen hat as well as the books.  She said she hid the bag behind a dustbin in a nearby alleyway.  She agreed, in cross‑examination, there had been somebody else in her house that night, whom she would not name.  She said he had left between 8.30 and 9.00 pm. She agreed she had been addicted to heroin and the appellant would share his drugs with her.  But she had now stopped taking drugs, albeit she was on methadone on prescription.  She agreed she had previous convictions for dishonesty, and she denied that she was, in effect, blaming the appellant to cover up for another man who had been at her house earlier that night.
      Two days later, the alleyway was searched by the  police and the bag containing the pension book was found.  The book was sent for fingerprint analysis and, in due course, it was found that there were nine ridge characteristics which matched a print from the appellant.
      The appellant was arrested on 22nd March. He denied the offence in interview.  When he was asked if he had ever handled any of the items, including the pension book, he said "Not that I know of".
      His blue coat was taken for analysis from his house. One of the two glass fragments which were found upon it resembled, in chemical composition and unusual refractive index, the glass which had been broken at Mrs Griffiths' house by the burglar.  The glass from both sources was apparently old and rare.
      There was evidence from the taxi company that two taxis had been called to Elizabeth Docherty's house, one just after 10.00 pm and the other just after 10.30. She admitted calling the later one but could not explain the earlier one.
      The defendant gave evidence denying the offence. He claimed a much more intimate relationship with Elizabeth Docherty than she was prepared to admit and said he had paid her money because she had had a baby she claimed was his.  He said that his mother had told  him that she had visited his home on Sunday 2nd March, the day after the incident, and dropped off some books, which he had looked at and they had included what he called "post office books".  She had come round the following day and suggested that she would use the books to get cash to buy drugs.  There was an argument, in the course of which he slapped her.  He told her to get out and he threw the books at her.  Presumably, the inference was that she had then put them in the bag which had found its way into the alleyway.  However, these incidents were not ones about which he told the police. He said this was because he did not want to involve his mother, who was frail.  He accepted that the print on the pension book could have been his.  He had no idea how the glass fragment to which we have referred got on his coat.
      There was evidence called for the defendant of the taxi‑driver. But his evidence not only was marred by a lack of English but an inconsistency between that which he said at the trial and that which he had said shortly after the relevant night.
      Three grounds of appeal were advanced in the grounds on the appellant's behalf.  First, the admission of the fingerprint evidence to which we shall return. Secondly, the fact that Elizabeth Docherty was allowed  to give her evidence from behind a screen, and thirdly, that there was a misdirection in the summing‑up to the effect that what Elizabeth Docherty had said in telephoning the police could amount to support for her evidence, whereas in fact it went merely to consistency.
      The Single Judge did not grant leave in relation to the second and third of those grounds; Mr Conrad rightly did not seek to pursue them before this Court. The second ground in relation to screens was plainly a matter within the judge's discretion.  The third matter could not possibly give rise, even if a misdirection were established, to any unsafety in this conviction.
      Mr Conrad, having had certain authorities drawn to his attention subsequent to the date of his drafting the grounds, and indeed subsequent to the granting of leave by the Single Judge, expressed the view, in a written advice which the Court has seen, that it would not be proper to pursue the fingerprint ground in support of this appeal.  The Court is, however, indebted to Mr Conrad for the submissions which he has made on the fingerprint aspect of this case.
      So far as this appellant is concerned, it is sufficient to say that there is nothing before this Court to suggest that, in exercising his discretion to  admit the fingerprint evidence to which we have referred, the trial judge erred.  It follows that there is, in our judgment, no ground for allowing this appellant's appeal.
      The point in relation to fingerprint evidence, however, is of considerable wider importance.  The Court has been provided, on behalf of the prosecution but with Mr Conrad's agreement, with a helpful review of the history during this century of developments in relation to fingerprint evidence.  To that history we shall shortly turn.
      It is first, however, convenient to comment that there have been a number of recent decisions, to which
Mr Conrad drew the Court's attention, which, certainly at first instance, have not spoken with one voice, in so far as it is appropriate to speak with one voice, as to the number of similar ridge characteristics required before fingerprint evidence can properly be admitted.
      In R v Holt, Mitchell J, sitting at Manchester on 5th November 1996, in the exercise of his discretion, declined to permit evidence to be adduced of ten similar ridge characteristics. It is to be pointed out that Mitchell J did not have the advantage of the material which this Court has of the history of fingerprint standards this century and the subsequent decisions of  this Court in R v Giles and R v Charles, to which later we shall come.  In Allen (unreported, a decision of His Honour Judge Gordon at the Central Criminal Court, 30th June 1995) fingerprint evidence based on 12 similar ridge characteristics was admitted in the exercise of the judge's discretion.  We are told and accept that these two decisions exemplify the different approach which is manifest in relation to this type of evidence. In Reid v DPP, (an unreported decision, on 2nd March 1996, a Divisional Court over which Leggatt LJ presided), evidence was held properly to have been admitted where there were 12 similar ridge characteristics.
      Against that background, we turn to the history of National Fingerprint Standards.  It has long been known that fingerprint patterns vary from person to person and that such patterns are unique and unchanging throughout life.  As early as 1906, in R v Castleton 3 Cr App R 74, a conviction was upheld which depended solely on identification by fingerprints.  At that time there were no set criteria or standards. But, gradually, a numerical standard involved and it became accepted that once 12 similar ridge characteristics could be identified, a match was proved beyond all doubt.
      In 1924, the standard was altered by New Scotland  Yard, but not by all other police forces, so as to require 16 similar ridge characteristics.  That alteration was made because, in 1912, a paper had been published in France by a man called Alphonse Bertillon. It was on the basis of his paper that the 16 similar ridge characteristics standard was adopted.  However, in recent times, the originals of the prints used by Bertillon have been examined and revealed conclusively to be forgeries.  It is therefore apparent that the 16 point standard was adopted on a false basis.
      Meanwhile, in 1953, there was a meeting between the then Deputy Director of Public Prosecutions, officials from the Home Office and officers from several police forces, with a view to agreeing on a common approach. As a result, the National Fingerprint Standard was created, which required 16 separate similar ridge characteristics.
      It is apparent that the committee were not seeking to identify the minimum number of ridge characteristics which would lead to a conclusive match, but what they were seeking to do was to set a standard which was so high that no one would seek to challenge the evidence and thereby, to raise fingerprint evidence to a point of unique reliability.
      At the same time, a National Conference of  Fingerprint Experts was established to monitor the application of the standard.  Shortly afterwards, there was an amendment to the standard, to provide that, where at any scene there was one set of marks from which 16 ridge characteristics could be identified, any other mark at the same scene could be matched if ten ridge characteristics were identified.  Logical or otherwise, that system operated for many years.
      During the passage of time, there have, of course, in this area, as in the realms of much other expert evidence, been developments in knowledge and expertise. Of course, in practice, many marks left at the scene of a crime are not by any means perfect; they may be only partial prints; they may be smudged or smeared or contaminated.  However, a consensus developed between experts that considerably fewer than 16 ridge characteristics would establish a match beyond any doubt.  Some experts suggested that eight would provide a complete safeguard. Others maintained that there should be no numerical standard at all.  We are told, and accept, that other countries admit identifications of 12, 10, or eight similar ridge characteristics and, in some other countries, the numerical system has been abandoned altogether.
      In 1983, there was a conference which recognised  that all fingerprint experts accepted that a fingerprint identification is certain with less than the current standard of 16 points of agreement.  It was also recognised that all experts agreed that there should be a nationally accepted standard, which should be adhered to in all but the most exceptional cases.  The Conference recognised that there would be rare occasions where an identification fell below the standard, but the print was of such crucial importance in the case that the evidence about it should be placed before the Court.  Therefore the conference advised that, in such extremely rare cases, the evidence of comparison should be given only by an expert of long experience and high standing.
      It was this approach which led to the trial judge in R v Charles (unreported, Court of Appeal (Criminal Division) transcript of 17th December 1998) admitting evidence of 12 similar ridge characteristics. That was a decision, in the exercise of his discretion, which was upheld in the face of challenge in this Court.  In the course of giving the judgment of the Court on that occasion, the Lord Chief Justice, Lord Bingham of Cornhill, said this at page 9E of the transcript, by reference to the evidence of factual match with the defendant's print: 
"It was not suggested that there were differences between the two prints being compared; nor was it suggested that the similarities on which he relied did not exist.  It was not, in other words, any part of the appellant's case that the prints did not match. Nor was any contradictory evidence of any kind adduced at the trial. The appellant did not call a fingerprint expert who disagreed with anything that Mr Powell said." 
The learned Lord Chief Justice went on to refer to the expert's opinion evidence that the relevant print was made by the defendant.  The expert:
"...relied on the comparison between them, on the similarities and absence of dissimilarities, on his professional experience during a long career, and on his expert knowledge of the experience of other experts as reported in the literature. He concluded that the possibility of the disputed print and the control prints being made by different people could in his judgment be effectively ruled out.
 
In cross‑examination...he agreed that he was expressing a professional opinion and not a scientific conclusion." 
 
It is further to be noted that in R v Giles, (unreported, Court of Appeal (Criminal Division) transcript, dated 13th February 1988) a differently constituted division of this Court over which Otton LJ presided, refused a renewed application for leave to appeal against conviction. The trial judge's exercise of discretion, in admitting evidence of one print of which there were 14 similar characteristics and of one with only eight similar characteristics, was not regarded as being the subject of effective challenge. 
      It is pertinent against that background to refer to current developments so far as fingerprint experts are concerned.  It was recognised that, in view of the 1983 concessions to which we have referred, the 1953 standard was logically indefensible.  In 1988, the Home Office and ACPO (The Association of Chief Police Officers) commissioned a study by Drs Evett and Williams into fingerprint standards. They recommended that there was no scientific, logical or statistical basis for the retention of any numerical standard, let alone one that required as many as 16 points of similarity.
      In consequence, ACPO set up a series of committees to consider regularising the position and to ensure that, if fingerprint identifications based on less than 16 points were to be relied upon, there would be clear procedures and protocols in place to establish a Nationwide system for the training of experts to an appropriate level of competence, establishment of management procedures for the supervision, recording and monitoring of their work and the introduction of an independent and external audit to ensure the quality of the work done.  In 1994 an ACPO report produced under the chairmanship of the Deputy Chief Constable of Thames Valley Police recommended changing to a non numerical system and the Chief Constable's Council endorsed that  recommendation in 1996.  Further discussions followed between the heads of all the Fingerprint Bureau in this country and ACPO. In consequence, a Fingerprint Evidence Project Board was established with a view to studying exhaustively the systems needed before moving nationally to a non numerical system. The first report of that body was presented on 25th March 1998 and recommended that the national standard be changed entirely to a non numerical system:  a target date of April 2000 was hoped for, by which the necessary protocols and procedures would be in place.  If and when that occurs, it may be that fingerprint experts will be able to give their opinions unfettered by any arbitrary numerical thresholds.  The courts will then be able to draw such conclusions as they think fit from the evidence of fingerprint experts.
      It is to be noted that none of this excellent work by the police and by fingerprint experts can be regarded as either usurping the function of a trial judge in determining admissibility or changing the law as to the admissibility of evidence.
      That said, we turn to the legal position as it seems to us.  Fingerprint evidence, like any other evidence, is admissible as a matter of law if it tends to prove the guilt of the accused.  It may so tend, even  if there are only a few similar ridge characteristics but it may, in such a case, have little weight. It may be excluded in the exercise of judicial discretion, if its prejudicial effect outweighs its probative value. When the prosecution seek to rely on fingerprint evidence, it will usually be necessary to consider two questions:  the first, a question of fact, is whether the control print from the accused has ridge characteristics, and if so how many, similar to those of the print on the item relied on. The second, a question of expert opinion, is whether the print on the item relied on was made by the accused. This opinion will usually be based on the number of similar ridge characteristics in the context of other findings made on comparison of the two prints.
      That is as matters presently stand.  It may be that in the future, when sufficient new protocols have been established to maintain the integrity of fingerprint evidence, it will be properly receivable as a matter of discretion, without reference to any particular number of similar ridge characteristics. But, in the present state of knowledge of and expertise in relation to fingerprints, we venture to proffer the following guidance, which we hope will be of assistance to judges and to those involved in criminal  prosecutions.
If there are fewer than eight similar ridge characteristics, it is highly unlikely that a judge will exercise his discretion to admit such evidence and, save in wholly exceptional circumstances, the prosecution should not seek to adduce such evidence. If there are eight or more similar ridge characteristics, a judge may or may not exercise his or her discretion in favour of admitting the evidence.  How the discretion is exercised will depend on all the circumstances of the case, including in particular:
(i) the experience and expertise of the witness;
(ii) the number of similar ridge characteristics;
(iii) whether there are dissimilar characteristics;
(iv) the size of the print relied on, in that the same number of similar ridge characteristics may be more compelling in a fragment of print than in an entire print; and
(v) the quality and clarity of the print on the item relied on, which may involve, for example, consideration of possible injury to the person who left the print, as well as factors such as smearing or contamination.
In every case where fingerprint evidence is admitted, it will generally be necessary, as in relation to all expert evidence, for the judge to warn the jury that it  is evidence opinion only, that the expert's opinion is not conclusive and that it is for the jury to determine whether guilt is proved in the light of all the evidence.
      That said, for the reasons earlier given, this appeal against conviction is dismissed.