Bowman, R v

Lord Carlile was a witness called by the court. He together with junior counsel, Mr Parry-Jones, represented the appellant at trial. In 1998 he had defended the appellant at his trial in Liverpool Crown Court on charges sexual abuse against his step-daughter, Kelly.

He said that he was concerned about expert evidence throughout his dealings with the murder trial. He recalled attending a pre-trial consultation with Professor Whitwell and Dr Hunt in Sheffield. After that consultation Lord Carlile was under the impression that Professor Whitwell and Dr Hunt were of the opinion that there were no fractures of the thyroid cartilage and if there were, the fractures were probably artefactual and may have resulted from the first post-mortem. It was only at the trial that Professor Whitwell and Dr Hunt accepted for the first time Dr Armour’s view that there were fractures. This represented a considerable change of position.

Professor Whitwell had not been available to attend the first day of Dr Armour’s evidence and so it was arranged that Dr Hunt should be at court for this part of the evidence. On 8 July 2002 Lord Carlile held an early morning consultation with Dr Hunt. In anticipation of this consultation, he had written in his notebook, “Where do we now disagree with Dr Armour?” By then he realised that the confident written opinions of his expert pathologists were not going to be borne out in the witness box.

Lord Carlile noted the major conclusion reached at this consultation in these terms:

“Bilateral fractures to the thyroid cartilage are consistent with compression of the neck as in manual or ligature strangulation, but it does not necessarily mean that there was a fatal outcome. It would be very unwise to assume this was the case, bearing in mind the lack of physical signs. It was odd that the larynx was excised and preserved in formalin after the post-mortem if there was no suspicion as to the cause of death and no expectation of a second post-mortem.”

Lord Carlile regarded this view as deeply unhelpful to the appellant’s case since it involved: i) an acceptance that there were or may well have been fractures; ii) the implication that the appellant may have strangled his wife manually and briefly but not necessarily fatally, which was an unattractive proposition at best, and in any event totally at odds with the appellant’s instructions; and iii) the recognition that at the original post-mortem conducted by Dr Gordon there may have been some incipient suspicion sufficient to lead to preservation of the relevant neck structures in formalin.

Lord Carlile described Dr Armour as giving evidence with a significant degree of certainty as he had anticipated she would. Following her evidence the urgent question was which (if any) of the defence experts was willing to contradict Dr Armour’s evidence in relation to the fractures, their possible cause, and the cause of death.

Lord Carlile held an end of day consultation with Dr Hunt on 8 July 2002. He also spoke to Professor Whitwell on the telephone. There was another consultation on the morning of 9 July 2002 with Dr Hunt and a toxicology expert. In his professional opinion his pathology experts were so “flakey” that it would have been positively dangerous to call any of them other than Professor Whitwell. If Dr Hunt were called he would accept that there had been a violent grasp of the neck which of itself or in combination with other factors caused death by strangulation, and this was contrary to the appellant’s instructions.

Lord Carlile was asked in cross-examination why he did not put to Dr Armour Dr Hunt’s opinion that she was being far too dogmatic. Lord Carlile said that he based his cross-examination on what medical evidence the defence could present. In his view it would have been outrageous if he had put something based on a report which he did not believe was going to be sustained if the author were called to give evidence.

Lord Carlile said that he had suggested that his instructing solicitor seek another opinion from Professor Vanezis because he was so troubled by the pathology evidence that he had. He confirmed that he did not have a consultation with Professor Vanezis. He did not follow up with Professor Vanezis his statement that he had seen cases of death involving people who had the same level of alcohol as Mary Bowman where no other substances were involved because the professor said in his report he was not a forensic toxicologist. Moreover, the view of Professor Vanezis that the injuries to Mary Bowman noted by Dr Gordon were consistent with two falls and could also have occurred in a struggle was inconsistent with the appellant’s case. In Lord Carlile’s view to have called the professor would have been disastrous because he would have been left in an impossible situation so far as addressing the jury was concerned.

Lord Carlile said that he did not contact Dr Lawler after Dr Armour had given evidence. In his view Dr Lawler’s report was entirely inconsistent with the appellant’s instructions. He said that one had to remember that the expert evidence fell to be considered against the background of overwhelming other evidence of abusive behaviour by the appellant of his family.

Lord Carlile was asked about his decision not to call Dr Boakes. He said that in cross-examination of Diane he had elicited sufficient to enable him to construct an argument that her claimed recollection of what had occurred at the time of her mother’s death was “recovered memory”. Until this cross-examination there was no evidence to justify labelling Diane’s evidence in this way. He said that although the suggestion that Diane’s evidence was recovered memory was available he had real doubts that this was so. The reality was more probably that the counselling she had undergone had reawakened horrible memories in a mechanism very different from recovered memory techniques. Nevertheless, as soon as the issue arose, he advised that Dr Janet Boakes should be consulted as a matter of urgency. She produced a report that was served on the prosecution. The prosecution in turn served a report from Professor Brewin that expressed the view that Diane’s recollection was not recovered memory and stated that Diane’s memory processes were acceptable and explicable in conventional terms.

In the event it was decided not to call Dr Boakes because it was thought that she would be liable to successful cross-examination by the prosecution in which event her views could not be used in the closing speech. Lord Carlile was also concerned that if he called Dr Boakes, the way would be open to the prosecution to adduce the appellant’s conviction in 1998 for rape of Kelly.

Dr Lawler has been a Home Office Pathologist since 1984. Dr Lawler was retained by the officer in the case, DC Farrell, to advise the prosecution, but was not called to give evidence at trial.

In his report dated 3 March 2002, served on the defence before the trial, Dr Lawler said: -

When giving evidence before this court Dr Lawler maintained the opinion that given all the evidence available to him the most likely explanation for Mrs Bowman’s death was that she died from manual neck compression. Strangulation was a serious possibility, but he did not think that all of the pathology evidence he had read allowed that conclusion to be drawn beyond reasonable doubt. The presence of bruising or evisceration at the sites of the fractures was indicative of an injury in life. Dr Lawler would not have expected as much blood to have accumulated at the sites of the fractures, if those fractures had been caused at the post-mortem examination more than 48 hours after death. The toxicology (alcohol and valium) by itself was not likely to be the explanation for Mrs Bowman’s death. If there had been a fall against a surface such as the edge of a grate or fireplace, he would not have expected the pattern of the injuries that Mrs Bowman suffered. The use of facial diagrams struck Dr Lawler as extremely unusual in a routine autopsy. He said it was fair to criticise Dr Gordon for having “ticked” the larynx as examined without having opened it.

Dr Hunt was a consultant pathologist at Plymouth hospitals between 1971 and 1991. From 1991 he practised as an independent forensic pathologist. In 1997 he was appointed as Chief Pathologist for the International Criminal Tribunal for the former Yugoslavia. His CV showed that he was a very experienced and distinguished pathologist.

Before the trial Dr Hunt had provided reports and letters to the defence dated 13 August 2001, 12 January 2002 and 13 June 2002. Since the trial Dr Hunt has provided letters, reports and statements dated 10 September 2004, 31 May 2005, 7 January 2006 and 18 January 2006.

As we have said, Dr Hunt was present at the trial for part of the time when Dr Armour gave evidence, but was not called by the defence.

In his report dated 13 August 2001 Dr Hunt referred to Professor Helen Whitwell as being “of world repute and entirely orthodox in her practice of pathology … not only as a senior forensic pathologist but also a respected neuro-pathologist of international importance.”

In his letter dated 12 January 2002 enclosing his report of the same date Dr Hunt wrote “the more I study Dr Armour’s report, the more I am worried about her dogmatic approach.” In the conclusions to that report Dr Hunt set out his opinion as to possible causes of death as follows:

However, in a letter of 13 June 2002 to the solicitors then representing the appellant Dr Hunt wrote:

“I enclose some further opinions in this case. I appreciate that my views, apart from allowing for some possibility of doubt, are not of great value to your client. Is it possible that the opinions of Dr Lawler, as a prosecution expert, might be sufficient to reduce the charge to one of manslaughter? After all, a short sharp compression of the neck might not be expected to cause death. ”

In the accompanying comments Dr Hunt wrote “all along I have said that, in my view, the most likely scenario is that the deceased’s neck was compressed with considerable but short-lived force which was not sustained long enough to cause death from classical strangulation, but in a woman that had consumed drugs and alcohol, could well have contributed to her death. However, I do consider that there is some room for doubt.”

It is hardly surprising that in the light of Dr Hunt’s letter and comments of 13 June 2002, he was not called to give evidence by the defence. The contents of the letter and comments serve to confirm the reason for not calling him given by Lord Carlile. In evidence Dr Hunt agreed that he was not surprised that he had not been called to give evidence on the appellant’s behalf at trial.

In his post trial report of 10 December 2004 Dr Hunt wrote “my view has always been that a grasp of the neck was a possible, even probable, factor in the death of Mary Bowman, but that there room for doubt. This is expressed in my original report (12 January 2002, see paragraph 3.1.4).” We do not consider that paragraph 3.1.4 was to the effect suggested. Dr Hunt’s view was however clear by June 2002.

When giving evidence before this court Dr Hunt was asked about his letter of 13 June 2002 and agreed that the appellant probably caused the death of his wife, adding “my view throughout … is that is the probability. I would not go further than that.” Dr Hunt explained that although there were alternative explanations for the bilateral fractures of the thyroid cartilages, such fractures are not common. There are occasional exceptions to the fact that fractured thyroid cartilages are due to the gripping of the neck.

Professor Vanezis is Regis Professor and Head of Department of Forensic Medicine and Science at the University of Glasgow. He provided a report to the appellant’s solicitors on 2 July 2002. He was however not called to give evidence for reasons explained by Lord Carlile.

In his report of July 2002 Professor Vanezis referred to the original post-mortem examination by Dr Gordon. He said he would be surprised if there was no suspicion attached to the death initially. Such suspicion would account for the fact that Dr Gordon took vaginal and anal swabs, an unusual step in a routine coroner’s autopsy.

In his report Professor Vanezis stated that he had carried out numerous autopsies on persons who had been strangled where the finding of petechial haemorrhages “is sometimes not an easy matter, bearing in mind that such haemorrhages may be faint and difficult to see.” This evidence (which the Professor maintained when giving evidence before this court) is of importance in that it provides support for Dr Armour’s contention that petechial haemorrhages may have been missed at the first autopsy.

In his report Professor Vanezis referred to the diagram of the injuries noted to the front of the face and head of Mrs Bowman and said that these were in keeping with the head coming into contact with a flat surface such as the ground and would be consistent with perhaps two falls as a minimum. When giving evidence before this court Professor Vanezis explained that by falls he meant impacts.

Professor Vanezis’ conclusions in his July 2002 report were as follows: -

When Professor Vanezis gave evidence in this court the appellant’s account at trial was put to him. Professor Vanezis said that apart from the injury on the inside of the scalp he would be happy with that account. We consider that the injury on the inside of the scalp is of importance in the overall context of the case.

Dr Cary is a full time consultant forensic pathologist accredited by the Home Office. In the past he practised for nearly ten years as Consultant Cardiac Pathologist at Papworth Hospital.

At the request of Merseyside Police he provided a report dated 3 May 2005. He provided a further report dated 9 February 2006.

In his report of May 2005 Dr Cary said that in 1978 there was a fairly detailed description of injuries, mainly abrasions to the facial area and a large area of bruising to the frontal area of the head. Such findings taken together with Mary Bowman’s relatively young age in retrospect would constitute the sort of evidence that should have made this case “suspicious” from the outset. There were a number of clearly stated negatives namely a lack of petechial haemorrhages to the skin, a lack of neck bruising and a lack of injury to the larynx. However the reliability of this latter observation and by inference any of the other positive or negative findings was clearly called into question by the finding of an undissected larynx at the second post mortem examination. Some post mortem-reports, particularly when made by non-forensic pathologists, may give a misleading impression as to the nature and thoroughness of the post-mortem examination itself.

In the same report Dr Cary set out the following overview and opinion. Looked at in isolation the original cause of death of alcohol and valium poisoning cannot be excluded. Manual strangulation was both possible and plausible as a cause of death. He saw no way of concluding that it must have been the cause of death. On the basis of the evidence available there is nothing to suggest that sustained compression of the neck occurred. In particular there was an absence of asphyxial changes described in the facial skin and eyes of the kind where confidence in a diagnosis of compression of the neck as a cause of death increases. In his opinion because of the incompleteness of the pathological evidence it would not be appropriate to advocate one of the several possibilities strongly. The cause of death should be recorded as unascertainable. He however said by way of conclusion “it is my opinion that on the basis of the evidence available it is likely that there was third party involvement in the circumstances in which death took place.”

When giving evidence before this court Dr Cary qualified the reference to third party involvement quoted above by adding “though not necessarily in the cause of death”. He said that his evidence added weight to the proposition that it would be unsafe to make a dogmatic statement that the cause of death was strangulation. As to the injuries to the face, Dr Cary said that there was rather more on the face than with many simple falls forwards. He agreed that petechial haemorrhages can be quite subtle and that in general terms it would be possible to miss a few.

Professor Milroy has been a Home Office pathologist since 1992. He was appointed Senior Lecturer in Forensic Pathology at the University of Sheffield in 1991, becoming Reader in 1999 and Professor in 2000.

Professor Milroy provided 4 reports and statements on the instruction of the appellant’s solicitors dated 29 September 2004, 30 January 2006, undated three pages and 13 February 2006. When Professor Milroy was first instructed in August 2004 the transcripts of the evidence of Dr Armour and Professor Whitwell at trial were not available. His first report (September 2004) addressed Dr Armour’s pre-trial reports and not the evidence given at trial.

Professor Milroy’s conclusions in his first report were as follows. The cause of death should be recorded as ‘unascertained’. Whilst the fracturing of the superior horns of the thyroid cartilage could be due to manual compression of the neck, the absence of other evidence associated with manual strangulation is against such a diagnosis. Fractures of the thyroid cartilage may not result in death. Cases are encountered where people clearly have sustained injuries to their laryngeal cartilages and have died of another cause. The toxicology results raise a strong possibility of an alternative cause of death.

In his undated report Professor Milroy said he had never seen a case of a fresh body, where he had diagnosed manual strangulation, where there was no neck bruising, no petechiae and no external damage to the skin, but isolated fractures.

Professor Milroy’s oral evidence before this Court included the following. He had discussed the case with Professor Whitwell before she gave evidence at trial. He did not have any specific criticisms of her evidence. When asked what he brought to the case that Professor Whitwell did not, he mentioned four matters: -

Professor Milroy accepted that in the conclusion to his first report he was indicating that Dr Armour might be right, the difference between them being one of degree or weight.

Professor Milroy accepted that Dr Gordon could not say that the larynx was in normal if he did not examine it. Further the fact Dr Gordon took swabs from the stomach and anus almost certainly indicated an elevated level of suspicion. The taking of swabs was a most unusual feature. Further the fact the neck was preserved in formalin was another indicator of an elevated level of suspicion. Professor Milroy said that if the fractures were caused in life, within probably an hour or two of her death Mrs Bowman had sustained some compressive trauma to her neck.

At the conclusion of his evidence Professor Milroy referred to two real possibilities being the original cause of death given by Dr Gordon and manual strangulation.

Professor Milroy completed his evidence on 8 February but provided a further (fourth) statement dated 13 February in answer to three questions, the first being – Can death from alcohol and valium by depression of the central nervous system by their toxic effect cause the changes found in the lungs in the case of Mary Bowman? He answered the first question by referring to literature on people dying from central nervous system depressants related to morphine/heroine deaths and in particular by referring to a paper by Grellner and others, ‘Pulmonary Histopathology and Survival Period in Morphine-Involved Deaths’ (which in turn referred to a paper by Grellner and another, ‘Pulmonary Micromorphology in fatal strangulations’). Professor Milroy was recalled on 14 February so that he could be questioned about his fourth statement. Professor Milroy accepted that there was no published paper suggesting that alcohol and valium in combination caused changes in the lungs. He further accepted that he should have referred to this in answering the questions addressed in his statement of 13 February.

The above evidence was directed towards a criticism of Dr Armour’s reliance on histology slides showing changes to the deceased’s lungs which she said in her witness statement and in evidence provided strong supporting evidence for the cause of death given by her. She relied on a paper by Brazilian doctors published in the United States of America. At trial Professor Whitwell had criticised the paper and Dr Armour’s reliance on it. Dr Armour had accepted that there was criticism of this paper but adhered to her opinion. At the hearing before us a good deal of time was taken up investigating this issue. In the end Mr Martin-Sperry did not pursue the criticism of Dr Armour’s reliance on this paper at trial although he did rely on it as a criticism of her evidence post trial.

Professor Crane is the State Pathologist for Northern Ireland, Professor of Forensic Medicine at the Queen’s University of Belfast and a consultant in pathology to the Northern Ireland Health and Social Services Boards.

Professor Crane provided a report dated 4 April 2005 at the request of the appellant’s solicitors. At the outset of his report he listed the materials he had considered, which did not include the transcripts of the evidence of Dr Armour and Professor Whitwell at trial.

Professor Crane’s opinion in his report was as follows. This would have been an extremely difficult case even for an experienced forensic pathologist. Most pathologists see only a relatively small number of cases of strangulation each year and exhumations are uncommon. Any interpretation of findings as indicative of ante-mortem injury would need to be guarded. Dr Armour was dogmatic in her diagnosis of strangulation, basing this on the laryngeal injuries and the changes in the lungs. This opinion cannot be justified on the available evidence and does not reach the standard of proof required for criminal proceedings. Professor Crane had never carried out an autopsy where strangulation was believed to have occurred without finding petechial haemorrhages. Injuries on the skin of the neck in the form of small areas of bruising or abrasions, possibly due to fingernails, are again always present in cases of manual strangulation and are often associated with bruising in the underlying soft tissues and muscles. Further the laryngeal fractures were problematical. It is entirely plausible that this occurred during or after the post-mortem examination. It is also entirely feasible for leakage of blood to occur into the neck structures at the time of autopsy during their removal. Dr Armour’s comment to the effect that the changes in the lungs were “typical of those changes seen in strangulation” was misleading and completely unjustified. Histological changes in the lungs are meaningless in the context of strangulation and should not, under any circumstances, be used to justify such a diagnosis.

When giving evidence before this Court Professor Crane agreed that his report was based on the material that was submitted to him. It did not include anything about Professor Whitwell’s evidence. It did not include anything about what Dr Armour said at trial; he had simply seen her pre-trial statements. Professor Crane added the following when giving evidence. In general people who fall do not fracture their larynx. The account which Mr Bowman gave in interview in the present case described a mechanism that was unlikely to cause the injuries found.

We accept that all the above pathologists did their best to assist the court. However, in assessing the value of their evidence we cannot help but observe that their criticisms of Dr Armour were largely based on her witness statement reports and not by reference to her evidence at trial. Further, none of them appeared to have read the evidence of Professor Whitwell given at trial; or, if they had, none referred to that evidence. In our judgment their evidence has to be viewed in the light of these deficiencies.

We shall have more to say about the preparation of expert reports at the end of this judgment.

Mr Martin-Sperry in his closing submissions made five specific criticisms of Dr Armour’s evidence and a further four criticisms of her evidence prepared post-trial for the purpose of this appeal. The specific criticisms of her evidence were that she overstated the case for the prosecution in the following ways:

that if the fractures had occurred before death they might have been caused by the momentary grasping of the deceased’s neck by the appellant at some earlier stage;

the possibility that the fractures had been occasioned by a fall;

the fractures could have been artefactual having occurred during a blind

In evidence Dr Armour failed to draw attention to the possibility that death might have been caused by the combination of drugs and alcohol; and in particular failed to consider that death might have been due to postural asphyxia and/or that the levels of alcohol and drugs had been under-recorded.

Dr Armour incorrectly stated that an agonal fall could not produce bilateral fractures of the thyroid horns.

She incorrectly stated that the bilateral fractures of the thyroid bones could not be caused by the removal of neck organs from the body.

Dr Armour incorrectly stated that in carrying out his autopsy Dr Gordon must have missed the expected signs of strangulation through incompetence.

We have already referred to the evidence of Dr Armour in some detail. In considering these criticisms it is in our judgment important to look at them in the context of all the evidence given at trial including, in particular, the evidence of Professor Whitwell. The crucial issue for the jury to decide was whether or not the fractures had occurred before the death of Mary Bowman or after her death. The case for the prosecution was a simple one on this issue. It was that Dr Gordon had missed these fractures because he failed to examine the larynx. Further he had failed to see the petechial haemorrhages or injuries to the throat which would be expected to present in cases of manual strangulation because his examination was not competently carried out.

The case for the defence was that Dr Gordon, an experienced and careful pathologist although not a Home Office appointed Forensic Pathologist, recorded the absence of external signs which invariably occur in cases of strangulation. It follows that the jury could not be sure that the cause of death was manual strangulation.

This issue was to be decided, as the judge made clear, not just on the evidence of the pathologists but all the evidence in the case.

The first criticism of Dr Armour groups a number of factors together. The first two factors (1(a) and 1(b)) raised the possibility of a defence to murder but not manslaughter. The question of the force necessary to cause the fractures was the subject of evidence by both pathologists. In her witness statement of 13 March 2002 Dr Armour stated:

“The significance of ante mortem fractures to the neck means that there was some violence to this region. This would include a fall onto the neck, a momentary grasp of the neck, during the resuscitation process or due to strangulation. There was no history of Mary Bowman falling or striking her neck. It is not known if Mary Bowman was resuscitated but in my experience this is most unlikely to cause fractures at this site. This leaves strangulation or “momentary grasp” of the neck. Whatever the terminology both of these terms imply a violent attack to the neck. These are fractures. They are typical sites associated with strangulation.”

For obvious reasons Dr Armour was not cross-examined on the amount of force necessary to cause fractures in a living person. It was never the appellant’s case that he had grasped the deceased’s neck momentarily or otherwise. However, Dr Armour was asked about the force necessary to cause fractures of the thyroid bones at post-mortem. The judge summarised that evidence in summing-up as follows:

“…it is common ground that whether you can sort of call it considerable compression force or firm force was required to produce it”

It is clear from the passage in her witness statement above and the summing-up that Dr Armour did deal with the possibility of a momentary grasp of the deceased’s neck and the necessary force to cause fractures. The judge directed the jury on the possibility of a verdict of manslaughter. These criticisms are unfounded.

Next the criticism, 1(c), that Dr Armour failed to refer to the possibility that the fractures could have been caused by a fall can be coupled with criticism 3 which focuses on the possibility of an agonal fall (that is a fall occurring at the time of death).

In the passage in her third witness statement to which we have already referred Dr Armour mentioned the possibility of a fall causing the fractures. She records that there was no history of her falling or striking her head. Mr Martin-Sperry sought to persuade us that Dr Armour ought to have taken into account material contained in a witness statement dated 5 March 2001 made by the deceased’s brother, James Whelan. In that statement James Whelan said that the Coroner’s Officer had told him that Mary Bowman had fallen and banged her face thereby causing serious injuries to it. It is submitted that Dr Armour should have taken this evidence into account which, coupled with the evidence of the deceased’s consumption of alcohol and diazepam, raised the possibility of the fall causing her death. In evidence before us Dr Armour said that she had not seen that statement. We have no reason to disbelieve her evidence on that issue.

As to the possibility of an agonal fall causing death, witnesses called on behalf of the appellant relied on a recent paper by R.Bux et al entitled “Larygohyoid fractures after agonal falls: Not always a certain sign of strangulation” published in Forensic Science International in July 2005. That paper described cases in which two adults (one male and one female) suffered bilateral thyroid cartilage fractures as a result of agonal falls. The first adult fell as a result of a heart attack. The second adult suffering from a mobility handicap fell from a two metre high lifting platform and was found in a prone position with her wheelchair on top of her. Each sustained injuries to the face and the body of greater severity than those seen on Mary Bowman. Each had bilateral fractures of both thyroid cartilages but with an absence of petechial haemorrhages or external signs of injury to the neck. The pathologists called in this appeal on behalf of the appellant referred to the possibility of a fall of the nature described in this paper as a cause of the fractures to Mary Bowman.

Dr Armour said that this paper had no real application to the evidence surrounding the circumstances of Mary Bowman’s death.

In our judgment this paper does not undermine Dr Armour’s evidence. We accept her evidence that the circumstances in this case and the injuries to Mary Bowman’s face recorded by Dr Gordon are quite different to the facts recounted in the two cases the subject of the Bux paper. No such fall as occurred to the two adults in the Bux paper was described by the appellant in his evidence at trial. As we have already observed Dr Armour in her first report did consider the possibility of a fall and rejected it as a possible cause of the fractures.

We take next the criticisms at 1(d), (e), and 4. These all relate to the possibility that the fractures could have been caused artefactually by Dr Gordon when carrying out his autopsy. If he may have in some way caused the fractures during his autopsy there would, of course, have been no signs of petechial haemorrhages or external injuries to the neck. These criticisms raise in sharp form the main issue in the pathology evidence, namely whether the fractures occurred before or after death. As already noted Dr Armour’s evidence was that the finding of the red blood cells at the fracture sites indicated that the fractures occurred before death. Dr Armour in her witness statements and evidence explained that in her opinion the blood at both fracture sites could not have oozed out of the fractures if they had arisen at the autopsy carried out by Dr Gordon. She said that the time interval of 56 hours since death was too great for there to be a possibility that blood could ooze from the fractures if they had occurred at the autopsy.

Professor Whitwell disagreed. She said blood could ooze from the site of a fracture occurring after death for many hours or days. In this opinion she was supported by other pathologists including Professor Milroy and Dr Vanezis. Dr Lawler, on the other hand, made it clear that in his opinion it was very unlikely that blood could ooze from a fracture occurring 48 hours after death. Hence the opinion expressed in his witness statement of 3 March 2002:

“In this case, I am entirely satisfied that Dr Armour has identified fractures of both superior horns of the thyroid cartilage of the larynx, and, furthermore. I believe that she has also demonstrated intact red blood cells at the fracture sites. If these are, indeed, intact red blood cells, then I have considerable difficulty in accepting that the laryngeal fractures would have been caused by rough handling during the first post mortem examination which took place over 48 hours after death.”

We were told by a number of witnesses that there has been no medical research into the time after death when blood will cease to ooze from fractures occurring post mortem. Each pathologist spoke of his or her own experience on this topic. In the circumstances we see no basis for criticising Dr Armour for expressing the opinion that the presence of red blood cells in this case indicated the fractures occurred in life.

As to the question of whether or not the fractures could have been caused by Dr Gordon when removing the neck organs or when they were replaced in the body cavity, Professor Whitwell was cross-examined closely on the possibility of this occurring. We have set out earlier a summary of her evidence on this topic. We note that none of the pathologists called on behalf of the appellant in this appeal dealt with evidence given by Professor Whitwell on this topic. We observe that in view of her evidence on this topic the jury would be entitled to regard it, to say the least, as a very unlikely coincidence that both thyroid horns had been broken during the course of Dr Gordon’s autopsy.

Finally on this issue Dr Cary raised an entirely new possible explanation for the red blood cells. He said that when the neck organs were returned to the body cavity after the autopsy they might have been contaminated by a pool of blood around the neck.

We have very great reservations about this theory. It did not feature as a possibility in the reports of any of the pathologists including Dr Cary. None save Dr Lawler made any comment on it. Dr Lawler said that it had never occurred to him. The possibility of it occurring might seem to be unlikely bearing in mind the fact that the neck organs were buried as a block. In our judgment this theory smacks very much of an after-thought.

In respect of these criticisms we are wholly unpersuaded that Dr Armour overstated her opinion. It was stated as an opinion and she gave the reasons for holding it. Much of her evidence and that of Professor Whitwell was devoted to this issue. They disagreed. It was left to the jury to decide the issue not just on the pathologists’ evidence but on all the evidence in the case.

Next, we deal with criticism 2 that Dr Armour failed to draw attention to the possibility that the deceased’s death might have been caused by the consumption of a combination of alcohol and drugs. In this connection she is also criticised for failing to consider that death might have been due to postural asphyxia and that the levels of alcohol and drugs found in the deceased’s blood might have been under-recorded.

We can deal with this criticism shortly. In her third witness statement Dr Armour referred to the question of other possible causes of death in the following terms:

“In my original Statement I addressed other possible causes of death ─ toxicological and blunt trauma to the head. To reiterate I am not a Toxicologist but discussed the toxicological findings at the time of the exhumation with a Forensic Scientist. As a Pathologist I would doubt that this combination of alcohol and Valium, in this case, would cause death but for a definitive and expert opinion a Toxicologist would provide an authorative view that death was due to blunt head trauma. There is no evidence to support this diagnosis.”

From that passage it is clear that Dr Armour raised the possibility of death being caused by the ingestion of alcohol and drugs. She expressed her opinion that alcohol and valium were not the cause of death but invited the views of a toxicologist. Before us, Professor Milroy said that a pathologist is entitled to express a view on whether drugs and alcohol were a cause of death. In any event at trial, as Dr Armour knew, the prosecution called both a toxicologist and a pharmacologist. Both would have been qualified to express opinions on this issue. They would also have been in a better position to deal with the question of whether or not the levels of alcohol and diazepam in this case might have been under-recorded. In our judgment this criticism is not made out.

The fifth criticism is that Dr Armour incorrectly stated that in carrying out his autopsy Dr Gordon must have missed the expected signs of strangulation through incompetence. This criticism raises the issue, much canvassed at trial and before us that Dr Gordon had carried out the autopsy carelessly and incompetently.

Mr Martin-Sperry in the course of his cross-examination and submissions submitted that there was no basis for saying Dr Gordon had acted incompetently. He submitted Dr Gordon’s findings should be taken at face value. His explanation for Dr Gordon’s failure to examine the neck organs is based on evidence given by Dr Lawler. Dr Lawler speculated that Dr Gordon might have spoken to a colleague, Dr Benstead, about the neck organs as a result of which he caused them to be put in formalin. Further, when he got the report from Dr Hales he may have concluded that there was no need for any further examination of the neck organs. Mr Martin-Sperry accepts that this is all speculation but he submits that bearing in mind these events took place in 1978 and Dr Gordon is dead, it is not unfair speculation.

In our judgment Dr Armour and the prosecution were quite entitled to maintain that Dr Gordon had acted incompetently when carrying out his autopsy. There was evidence on which it could properly be said that he approached his autopsy with what Professor Milroy described as an elevated sense of suspicion. All the experts regard his collection of the vaginal and anal swabs as unusual; some said it was very unusual. Having done so he did not record the results of the forensic tests. At trial, Professor Whitwell agreed that this was inadequate. She also accepted that his failure to record the results of the histology was not good practice. Professor Milroy accepted that Dr Gordon’s comment that there was nothing abnormal in the neck structures when he had not examined them was “sub-optimal” or less than best practice. Professor Vanezis regarded Dr Gordon’s failure to open and examine the larynx as regrettable. Without going further in our judgment Dr Armour was on this basis quite entitled to form the opinion that Dr Gordon had not carried out his autopsy in a competent manner despite the careful notes which he made.

On the question of whether or not this should have been treated as a suspicious death, Dr Armour’s evidence was that it should have been. Dr Lawler, whose experience as a pathologist in the geographical area in question stretches back for some years, said that there was a practice which involved the police asking a hospital pathologist to carry out an autopsy on a case which might be a suspicious death. He described this as a sort of half-way procedure between a full Home Office Forensic Pathologist’s autopsy and a routine coroner’s autopsy.

Our conclusion is that there were sufficient grounds for Dr Armour to put forward the proposition that this ought to have been treated as a suspicious death. The fact that the Coroner’s Officer did not regard it as a suspicious death in our opinion was no reason for Dr Armour to reach a different conclusion.

In summary, in respect of these specific criticisms we conclude that the submissions that Dr Armour had overstated her reasons for arriving at the cause of death are not made out.

As to the criticisms of Dr Armour in respect of matters arising after the trial, in our judgment they are of no relevance to this appeal. Mr Martin-Sperry as, we understand it, seeks to rely on these criticisms as bolstering his submission that they show Dr Armour as persisting in her mistaken and dogmatic opinions. We have examined these criticisms. Having done so we see nothing in them to change the views which we have already expressed in respect of the specific criticisms relating to her evidence at trial.

One important criticism remains. It relates to a passage in Dr Armour’s evidence when she gave an example from her own experience of a case of manual strangulation where there were no signs of petechial haemorrhages to the face and no signs of external injuries to the neck. Although not named in evidence there is no dispute that this example relates to an examination carried out by Dr Armour on behalf of a defendant on his deceased partner, Nicole Lewis. Dr Armour was instructed by solicitors acting for Nicole Lewis’ partner. He was the subject of a criminal charge and his solicitors informed Dr Armour in their instructions that he had confessed to strangling Nicole Lewis.

When answering questions from Mr Edis QC about this example Dr Armour said that marks on the neck were absent and that there were no petechial haemorrhages other than in the conjunctivae (the inside of the eyelids) and the underside of the lip. In cross-examination she repeated these answers with no material differences.

For this appeal the underlying documents in respect of the pathological evidence in that case have been disclosed. The Home Office Forensic Pathologist, Dr Johnson, in his report gave the cause of death as asphyxia. It is also clear from his final report that in his findings he described petechial haemorrhages visible on the skin around the eyelids and on the conjunctivae. He said that his findings were consistent with the defendant’s account of gripping the upper neck/lower face with one hand and excluding the external airway with the other. He said there was no evidence of forceful compression of the deep neck structures (i.e. strangulation).

Professor Milroy when asked to comment on Dr Johnson’s report said firmly that the case could not be described as one of manual strangulation.

In evidence in this appeal Dr Armour was pressed to explain how she could have put this case forward as one of strangulation; and how she could have said that there was no evidence of petechial haemorrhages to the face. It was pointed out to her that in her report on this case she had recorded petechial haemorrhages to both eyelids upper and lower and a bruise to the neck. She explained that the petechial haemorrhages were in the conjunctivae and that she herself would have described the bruise as an injury to the face. She had not seen the final report of Dr Johnson but in his first report he had described the bruise as on the neck and she had adopted this description although she did not agree with it. The bruise in fact was on the jaw line. She herself had always regarded this case as a case of manual strangulation particularly since the defendant had confessed to strangling Nicole Lewis. She said that at the trial she was giving her answers in the context of there being no recorded injuries to Mary Bowman’s neck. She wished now that she had explained that Nicole Lewis’ injuries were bruises to the angle of the jaw. In her mind they were not bruises to the neck.

Mr Martin-Sperry strongly criticised Dr Armour’s evidence on this matter at trial and before us. He submitted that in respect of it she had misled the jury on an important matter which was introduced to bolster her evidence. In his closing submissions he submitted that it was “inconceivable that any other competent and honest pathologist would have given evidence in like fashion on this topic”.

We say at once that having seen Dr Armour give evidence on this topic we are quite satisfied that she did not intend to mislead the jury. Mr Edis concedes that “it would have been better if she (Dr Armour) had mentioned bruising to the jaw line” rather than stating that there was no bruising to the neck. We agree. Dr Armour also accepted that her evidence that there were no petechial haemorrhages on the skin was inaccurate in that there were such haemorrhages on the skin of the upper eyelids although there was none on the face.

Nicole Lewis did not represent a typical case of strangulation. In our opinion if Dr Armour was going to give this case as an example of death by strangulation where there were no signs of bruising or petechial haemorrhages she should have made clear that the case was not a straightforward case of manual strangulation, in particular because there were no laryngeal fractures. She ought also to have stated that there was bruising on the jaw line and that there were petechiae on the skin of the upper eyelids.

We have to consider whether our conclusions on this topic affects our general conclusions on Dr Armour’s evidence at trial and the criticisms made of her. Having seen her give evidence before us we collectively formed the opinion so far as we could that she was a competent and careful pathologist. She was certainly a good witness. We have rejected the specific criticisms made of her and despite our conclusions on the topic of Nicole Lewis we see no reason to revise those conclusions. In the circumstances we are satisfied that this aspect of her evidence does not undermine our conclusions on the specific criticisms made of her.

We shall consider later in this judgment what effect her evidence on this topic and our conclusions on it may have on the safety of the convictions.

In this section of our judgment we deal with that part of the ground of appeal in which it is submitted that Dr Armour’s cause of death was one which no reasonable pathologist could hold. This submission is different from the specific criticisms of Dr Armour because it is submitted that whether or not Dr Armour overstated her reasons for concluding that the cause of death was manual strangulation, every pathologist whom the defence have approached disagrees with her. Therefore the verdicts are unsafe. There is, of course, a considerable overlap between this aspect of the appeal and the specific criticisms of Dr Armour.

At this point it is instructive in our judgment to see how this issue was dealt with by the judge in his summing-up. He gave a full and fair account of the evidence of Dr Armour and Professor Whitwell. He underlined Professor Whitwell’s reliance on Dr Gordon’s autopsy report in which it was stated that there were no petechial haemorrhages, such haemorrhages being a good indication of asphyxia; no neck bruising; and no mucosal lip lesions. He described these findings as “…rightly relied upon (by Professor Whitwell) as deserving great weight” adding “…this is on the assumption that they are accurate”.

Later in his summing-up he summarised the issues in the following way:

“… the issues may not be quite as complex as you might thought have appeared first…first thought. Are you sure that the damages to both horns of the thyroid cartilages are fractures? If you are sure, it is common ground that whether you can sort of call it considerable compressive force or firm force was required to produce it.

Secondly, are you sure that they were caused before death or could Dr Gordon in some clumsy fashion have used such force to cause both fractures in the moving or handling the block of organs which included the entire neck structure?

Thirdly, if you are sure that Dr Gordon didn’t cause these fractures, are you sure that the defendant did? And furthermore that these fractures were a substantial cause of death?

Dr Amour was prepared to express the conclusion that death was by strangulation. There’s no suggestion that her…Mary Bowman’s handling from the…from 16 Sudworth Road in the ambulance to the hospital or anything that happened to her in the hospital before the post-mortem would have caused these fractures that’s why I put 2 possibilities.

Professor Whitwell took the view that she could not reach a conclusion as to whether the fractures were before death. She said “I don’t know. I have serious doubts” she said. She called the cause of death as unascertainable and if you have reasonable doubts, of course so must you. Unless you are sure that these fractures were caused by the defendant, then this case in murder doesn’t even start. You must also be satisfied so that you are sure that the fractures were a substantial cause of death.

Finally, because Lord Carlile specifically mentioned the possibility that he’d put his wife’s chin up to open an airway in a proper attempt to resuscitate he might have compressed both horns of the cartilage, you have to be sure whether for murder or manslaughter that such force as was required to produce the fractures was not inflicted accidentally in an attempt to resuscitate. Do you follow.

In asking these questions in this way I am not ignoring or excluding the evidence of the toxicologists to which I shall now turn and I remind you that you ask these questions not merely based on the opinions of the experts whose evidence you are free to accept or reject but also the rest of the evidence in the case.”

As we have already said, and this passage in the summing-up makes clear, the central issue at trial on the pathology evidence was when did the fractures occur? That to a very large extent depended on the accuracy of Dr Gordon’s autopsy report. Again as we have already said this was an issue of fact for the jury to decide on all the evidence including the evidence of the pathologists.

We have set out in some detail the evidence which we have heard from all the pathologists called on behalf of the appellant whether available at trial or whether subsequently instructed to prepare reports for this appeal. In this respect we have made no distinction between the two groups.

There can be no doubt that although these pathologists would not have given the cause of death as manual strangulation with the certainty expressed by Dr Armour, the majority would, as did Professor Whitwell, have said that the cause of death was unascertained. However, a number expressed with varying ranges of probability the view that the cause of death was probably some forceful compression of the neck. Dr Lawler said that the most likely explanation for Mary Bowman’s death was manual neck compression. Dr Hunt said that the most likely scenario was that the deceased’s neck was compressed with considerable short-lived force. In evidence he expressed the opinion that the appellant probably caused the death of his wife. Professor Vanezis, whilst maintaining the view that the cause of death could have been as Dr Gordon described, said it was reasonable to conclude it was unascertained if one could not make up one’s mind between compression of the neck or due to alcohol and diazepam.

Dr Cary was of the opinion that manual strangulation was both possible and plausible. He pointed out there was nothing to suggest sustained compression of the neck. He did express the opinion that it was likely that there was third-party involvement in the circumstances in which death occurred although in evidence he qualified this by saying third-party involvement was not necessarily involved in the circumstances in which death took place.

Professor Milroy agreed that if the fractures were caused in life within an hour or two of her death Mary Bowman had probably sustained some compressive trauma to the neck. Professor Crane based his opinions very much on the findings of Dr Gordon as set out in his autopsy report. He maintained his view that the cause of death should be “unascertained”.

Much of the evidence in this court has been addressed to the issue of whether or not the fractures were caused before or after death. We have already discussed this topic when dealing with the specific criticisms of Dr Armour. It is in our view significant that none of the pathologists called before us commented on Professor Whitwell’s evidence at trial on this issue. None had transcripts of the evidence before writing their reports. This is not surprising since the transcripts were not available at the time their views were being sought. It is not certain which of them had transcripts of either Professor Whitwell’s evidence or Dr Armour’s evidence at any time before giving evidence before us. None save Professor Milroy referred to that evidence. The jury was directed to resolve this factual issue on all the evidence. Obviously prominent in their deliberations would be the pathology evidence and the descriptions given by Professor Whitwell as to how the fractures could have occurred at the autopsy carried out by Dr Gordon. We have already referred to her evidence on this topic. We note that she was not very happy with the explanation that Dr Gordon had caused the fractures. We also note her opinion that if he had caused the fractures at autopsy he ought to have seen them and noted them.

It is also clear that the views of the experts whom we heard in many respects were based on an acceptance of Dr Gordon’s findings. But the prosecution case was based on those findings being incomplete and the fact that Dr Gordon had missed the vital signs of petechial haemorrhages and injuries to the neck. We have already said that in our view there was undisputed evidence upon which the jury could properly conclude that his autopsy had not been carried out with proper care. In the respects referred to by her in her evidence Professor Whitwell agreed with this although like the pathologists we have heard she commented favourably on the care with which he made his notes.

Next, as Mr Edis pointed out in his final submissions, much of the evidence given by the pathologists we have heard would have assisted the prosecution.

Where a pathologist accepted the probability that the pathology evidence pointed to death being caused by compression of the neck (in the circumstances of this case) taking account of all the other evidence, it would in our judgment be folly for an advocate to call such evidence on the appellant’s behalf. Mr Martin-Sperry when asked by the court which of these witnesses he would call at any re-trial, after taking time to think about it, said that he would call all of them. He added that he would only do so after having a full conference with each before calling him. In our judgment this assertion is wholly unrealistic. We infinitely prefer the view taken by Lord Carlile. He told us that in his judgment to call any one of Dr Hunt, Dr Lawler or Professor Vanezis would have been likely severely to damage the appellant’s case. This was also the view of Dr Hunt expressed in his letter to solicitors of 13 June 2002 and his evidence in this appeal.

In addition to the above, a number of the pathologists gave other evidence which would be positively unhelpful to the appellant. Professor Vanezis spoke of the difficulty encountered by pathologists in identifying petechial haemorrhages which he said can be difficult to see. He also expressed the view that a person under the influence of alcohol and diazepam would not necessarily put up much resistance so that physical signs in the form of a struggle against a compressing hand “would not be well developed”. Further he expressed the opinion that the signs of injuries to the deceased’s face indicated more than one fall, if fall there was, something which was inconsistent with the appellant’s evidence.

Dr Lawler’s scepticism about the fractures being caused after death would clearly not have helped the appellant’s case. Nor would Dr Cary’s comments about third-party involvement. Professor Crane in evidence said that on the whole people who fall do not fracture their larynx. When asked about the account given by the appellant at interview he described it as a mechanism unlikely to have caused the injuries found.

In our judgment the best test of whether this evidence would, or might, have assisted the appellant is to be found in the views of Lord Carlile to which we have referred. He was trial counsel. He was in the best position to judge what evidence would or would not assist the defence. His decision not to call any of the three pathologists available to the defence is not challenged as unreasonable or negligent. Nor in our judgment could it have been. In our opinion precisely the same considerations apply to the three other pathologists who were instructed after trial.

We turn finally to the evidence of Professor Conway which Mr Martin-Sperry sought leave to adduce. We had been supplied with a report from Professor Conway in respect of which Mr Martin-Sperry conceded that five of the seven paragraphs were inadmissible. This evidence affects the appeal on ground 1 but more specifically is addressed to grounds 2 and 3 for which leave to appeal has not been granted. We decided that we should hear his evidence de bene esse.

Professor Conway is an expert in memory research. His written report set out general comments about the unreliability of memories of children of 5 years at a distance of 20 years remove or more. In general terms the report pointed to the difficulties of accurately recalling events occurring at age 5 when re-telling them after 20 or more years. In the summary to paragraph 2 of his report Professor Conway stated:

“2.5

Summary. The memories from below about 7 years in age were formed during the period in which the brain, the self, memory, comprehension, language, and the emotions were all undergoing rapid and intense development. Memories from this time are likely to contain errors and in some cases will be entirely wrong. This is the case for everyone, there is nothing unusual about it and it simply reflects the fact that, in humans more so than in any other animal, cognition develops after birth. It means, however, that memories from this period, when the individual was aged 5 to 7 years or less should be treated with caution. As a memory researcher I would not rely on the accuracy of such memories unless there was additional, independent, corroborating evidence. ”

The third paragraph dealt with specific statements taken from the witness statements taken from Diane for the purpose of the trial.

In his oral evidence Professor Conway was an impressively candid witness. He said that it was not impossible for a child aged 5½ to remember her mother being murdered. He added most people remember three or four “hot spots” in their early life. However he said research shows that the memory of early events is recalled out of order and with inaccuracies as to the detail of the event or events. In his opinion the only way to test the accuracy of such evidence is by looking at independent reliable evidence which supports it. He said that in his opinion it was not possible for an adult to relate accurately conversations heard under the age of seven.

Generally he was sceptical about false memory syndrome. He said it was a hypothesis for which there was no proper evidence. He was asked in cross-examination if much of what he was saying was simple common sense. He said he did not really know.

Finally towards the end of his evidence he said that childhood memories are likely to be accurate as a theme, but may be coloured by inaccuracies.

In submissions on this aspect of the appeal Mr Martin-Sperry relies upon the many inconsistencies in Diane’s witness statements and her evidence. He points to the absence of medical records which ought to have existed for both Diane and Damien which could have confirmed some parts of their evidence. Further, the medical records which do survive do not confirm either Diane’s or Damien’s evidence.

As to these submissions the inconsistencies were all evident during the course of Diane and Damien’s evidence as was the lack of documentary support. The transcript of Diane’s evidence demonstrates how Lord Carlile made considerable use of these factors in his cross-examination. He told us, and we accept, that he felt he had sufficient ammunition from his cross-examination not to call Dr Boakes. He feared much of the inroads made by him in cross-examination might have been minimised if he called Dr Boakes and Dr Brewin was called by the prosecution.

At trial he was also fearful, that if he called Dr Boakes it might risk the admission of the appellant’s previous conviction for sexual offences against his step-daughter Kelly. That decision is also not the subject of any criticism by Mr Martin-Sperry.

Whether the reason for not calling Dr Boakes was right or wrong, having heard Professor Conway’s evidence we are quite satisfied that his evidence would not have assisted the appellant if it had been given at trial. In our judgment it is on the very borderline of admissibility. Essentially the professor’s evidence of the results of research into memories goes little further than is commonsense and well within normal human experience. He accepted that a traumatic event occurring when a person is under the age of seven can be recalled by that person in adulthood. Moreover, rejecting, as he does, false memory syndrome it would not have assisted Lord Carlile’s attempts in cross-examination to sow the seeds of that hypothesis in the minds of the jury.

Generally the contradictions in Diane’s evidence and her failure to give a version of the killing which accorded with strangulation (the prosecution contended that her view of what happened at the crucial time was hidden by the appellant’s body) were all before the jury. The judge directed the jury to take great care in assessing her evidence. We are quite satisfied that if Professor Conway’s evidence had been given at the trial it would not have affected the verdicts and it affords no ground for allowing the appeal. In the circumstances we reject the application for leave to amend the grounds of appeal in the terms sought.

We have discussed at length the criticisms of Dr Armour and the effect of the fresh evidence which we have heard. But it is important to remember that the evidence of pathology was only one strand of the prosecution’s evidence adduced at trial. It must not be considered in a vacuum. The prosecution relied on the background evidence of violence by the appellant to Mary Bowman. It also relied on the eye-witness evidence of Diane and Damien of the night on which Mary Bowman died. Further there were the alleged lies of the appellant about what happened on that night. That body of evidence coupled with the evidence of the confession to a fellow prisoner provided a powerful case against the appellant. The pathology evidence must be considered in the context of the whole of the prosecution case.

We repeat, the essential issue raised by the pathology evidence was as to the time when the laryngeal fractures occurred: were they ante or post mortem? Given that the fractures required localised constrictive force the prosecution’s case that the fractures could not have occurred during Dr Gordon’s autopsy (including the placing of the neck structures in the body cavity) was a powerful one. At the time the structures were removed and then examined Dr Gordon would have been proceeding with special care. The possibility that he unconsciously fractured both thyroid horns is a remote one, as is the possibility that the horns were fractured when the larynx was placed back into the body with the other organs that had been removed. There was therefore in our view strong evidence that the fractures occurred ante-mortem. There were also cogent grounds for the view that Dr Gordon missed external signs of strangulation which can be subtle and hard to detect. These matters, together with all the other evidence in the case afford a sound basis for the jury’s verdict of murder. In our judgment nothing in the fresh evidence which we have received causes us to conclude that the verdict is unsafe.

It follows from our conclusions expressed above that save to the limited extent set out in respect of the Nicole Lewis topic we reject the criticisms made against Dr Armour. We also reject the submission that the fresh evidence of the pathologists called before us affords the appellant any ground of appeal. Notwithstanding the limited criticism we have made of Dr Armour we are quite satisfied that this criticism does not render the verdict of the jury on count 1 unsafe. We have already stated that the evidence of Professor Conway affords no ground of appeal. For the reasons expressed above we are satisfied that the verdict of the jury is quite safe and accordingly this appeal must be dismissed.

We wish to add that in our opinion this appeal is in reality an attempt to re-open all the arguments deployed at trial. We are not to be taken as saying that in all cases where fresh expert evidence is called to the same effect as was called at trial an appeal can never succeed. But in our judgment this court will be astute to ensure that in such appeals the trial process is not thereby subverted.

In R v Harris and Others [2006] 1 Cr App. R.5 this court gave guidance in respect of expert evidence given in criminal trials (see page 55). The way that the expert reports have been prepared and presented for this appeal leads us to believe that it would be helpful to give some further guidance in order to underline the necessity for expert reports to be prepared with the greatest care.

On 14 February 2006 the Attorney General, announcing the outcome of his review of Shaken Baby Syndrome cases published three papers including a booklet entitled “Disclosure: Expert’s Evidence and Unused Material- Guidance Booklet for Experts”. The instructions contained in this booklet were “designed to provide a practical guide to disclosure for expert witnesses instructed by the Prosecution Team”. The booklet sets out three key obligations arising for an expert as an investigation progresses. The relevant steps are described as to retain, to record and to reveal. No doubt any expert instructed by the prosecution will, of course, comply with these guidelines. What follows applies equally to experts instructed by the prosecution and defence.

We desire to emphasise the duties of an expert witness in a criminal trial, whether instructed by the prosecution or defence, are those set out in Harris. We emphasise that these duties are owed to the court and override any obligation to the person from whom the expert has received instructions or by whom the expert is paid. It is hardly necessary to say that experts should maintain professional objectivity and impartiality at all times.

In addition to the specific factors referred to by Cresswell J in the Ikarian Reefer [1993] 2 Lloyds Rep 68 set out in Harris we add the following as necessary inclusions in an expert report:

In this case, at times, some of the experts expressed to the court for the first time opinions which had not featured in their reports. A number of additional reports were also supplied at a late stage. Mr Martin-Sperry explained forcefully the funding constraints and difficulties faced by those representing the appellant in approaching and obtaining experts’ reports. We are mindful of these difficulties and aware of the constraints placed on the appellant’s advisers in this appeal but they do not wholly explain why some of the material placed before the court was not included in the relevant expert’s initial report. They also do not explain or excuse the failure to refer to the instructions given and material provided before the reports were written. Failure to adhere to the guidelines can cause considerable difficulties and some delay in the conduct of the proceedings. These remarks are designed to help build up a culture of good practice rather than to be seen as critical of the experts in this case. We should add that it may be that some of the difficulties experienced by the experts were caused by late supply to them of information, from whatever source.