Court of Appeal

Published date01 February 2005
Date01 February 2005
Subject MatterCourt of Appeal
Court of Appeal
Fresh Evidence: Ordering of Retrial
R v Sion Jenkins [2004] EWCA Crim 2047
The brutal killing of Billie-Jo Jenkins and the subsequent arrest and
conviction of her foster father, Sion, hit the news headlines in the late
1990s. Billie-Jo (V) was battered to death with an 18-inch metal tent peg
whilst she was painting the patio doors at her house in Hastings, East
Sussex on 15 February 1997. The appellant, who with his then wife had
fostered V since 1992 and planned to adopt her, was charged with her
murder and was convicted by a jury at Lewes Crown Court on 2 July
1998. His conviction rested largely on forensic evidence where 158 spots
of blood were found on his clothing. The prosecution contended that the
pattern of the blood spatters was consistent with the attack, whilst the
defence argued that the blood may well have been a result of her
exhalation on being moved. The defence also advanced the argument
that the murderer was in fact a prowler. Following the guilty verdict,
sentencing the appellant to life imprisonment, the trial judge, Gage J,
stated that the evidence against Sion Jenkins had been compelling,
adding that [t]hese bare facts are sufcient to show what a horrendous
crime this was.
The appellant appealed to the Court of Appeal for the rst time in
1999, arguing that the blood spattering on his clothing could be ex-
plained as a result of exhalation through Vs nose after the attack due to
an obstruction of blood in a nasal valve being expelled under pressure.
Dismissing the appeal on 29 December 1999, the Court of Appeal stated
that the forensic evidence supported the view that the only obstruction
was in the lower airway.
Following a reference to the Court of Appeal by the Criminal Cases
Review Commission under the Criminal Appeal Act 1995, s. 9, the
appellant submitted three grounds of appeal:
1. New scientic evidence relating to the blood stains which was
argued to undermine the earlier nding that the only obstruction
was in the lower airway. The fresh evidence indicated the presence
of interstitial emphysema which led to air being forced, under
pressure, into the membranes separating the lobes of the lungs
thus suggesting a blockage in the upper airway.
2. Interviews with two of the appellants daughters by the CCRC in
2002 suggested that the defence may have been misled into not
calling them as witnesses at trial by a statement given by their
3. Evidence that a third party—‘X’—might have been the
.The Court of Appeal dealt rst with Grounds 2 and 3 as
2. Testimony of the daughters. The court was of the opinion that a deliber-
ate decision, made in the light of all factors known to the defence, had
been made not to call the girls as witnesses. Nothing new had arisen, the
reports made had been accurate and properly disclosed to the defence
and it was not the fault of the prosecution if the defence had misread the
situation. Thus, this ground of appeal was rejected.
3. Third Party X.The court was of the view that there was nothing in
this evidence to render the conviction unsafe. There was no evidence
that X had killed V and, indeed, forensic and identication evidence
indicated the opposite. The Court of Appeal held that the defence had
been aware of this evidence at trial and appeal and it was not raised due
to tactical considerations. There was, accordingly, no reason to reopen
the issue at this stage, and this ground was rejected.
The court then turned to the rst ground of appeal and accepted that
this was fresh evidence not available at trial or rst appeal and thus was
admissible under the Criminal Appeal Act 1968, s. 23. It was stated that
the source of the blood spatters on the defendants clothing was the
fundamental issue and that the jury had never had the opportunity to
consider the issue on the basis of passive exhalation of air under con-
siderable pressure from release of a blockage in her upper airways. The
evidence now suggested that, at some time after the start of the attack,
Vs upper airway was blocked/substantially blocked and behind this
blockage was a pressure of 70 mmHg or more. Following the judgment
in R v Pendleton [2002] 1 Cr App R 441, the court asked itself whether,
had the jury heard this evidence, there was a reasonable chance that the
verdict would have been different. It came to the conclusion that this
could be the case.
Having decided to allow the appeal, the discussion turned to whether
a retrial was appropriate. The appellant argued that a retrial should not
take place on the following grounds:
1. The case involved a scientic dispute between reputable experts
(relying on the argument in R v Cannings [2004] 1 All ER 725 at
2. A retrial was unfair as the disclosure of legally privileged material
for the purposes of the appeal meant that the defendants position
had been irretrievably prejudiced.
3. 75 per cent of the blood spots had disappeared, the house and its
contents had been sold and, although slides were available, Vs
lung tissue blocks were not.
4. The passage of time meant that memories would inevitably be
impaired. Additionally, the daughters, now in Tasmania, may have
been unwilling witnesses.
The Court of Appeal rejected these arguments stating as follows:
1. The arguments in this case were not conned to scientic evi-
dence. Whilst the Cannings case dealt with unexplained infant
deaths (thereby suggesting that scientic opinion was at the crux
Fresh Evidence: Ordering of Retrial

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