Ear-Print Evidence

AuthorClaire Morris
Published date01 December 2008
Date01 December 2008
Subject MatterCourt of Appeal
JCL 72(6) document..Court of Appeal .. Page488 Court of Appeal
Ear-print Evidence
R v Kempster [2008] EWCA Crim 975
Ear print; Expert evidence; Jury direction on scientific evid-
ence; Developments in forensic science
The appellant (hereafter K) was convicted in 2001 of three counts of
burglary and one count of attempted burglary on the house of an elderly
lady. He was sentenced to 10 years on each count of burglary and five
years for the count of attempted burglary; all sentences to run con-
currently. At trial, expert evidence was adduced that suggested that an
ear print recovered in the proximity of a forced open window used to
gain entry to the property matched that of K. It was further claimed that
no two ears left the same print.
K’s first appeal was dismissed in 2003 ([2003] EWCA Crim 3555,
(2004) 68 JCL 201). K then applied to the Criminal Cases Review
Commission who referred the convictions and sentence back to the
Court of Appeal under s.23 of the Criminal Appeal Act 1995 on the
grounds that there was a ‘real possibility’ of success were the case
referred back.
The grounds of appeal were that:
1. Fresh evidence suggested that the ear print was not of sufficient
quality to conclude that there was a match as the gross anatomical
features did not match. This evidence therefore undermined the
expert prosecution evidence given at trial that the ear mark at the
scene matched that of K.
2. An alternative count of theft or handling stolen goods should have
been left for the jury’s consideration on one of the counts.
The second ground had been rejected on 30 November 2007. The first
ground was adjourned for consideration in the instant case with counsel
for the appellant seeking to add a further ground—if there was success
on the first ground, doubt was cast on the safety of the convictions on all
four counts.
HELD, ALLOWING THE APPEAL against conviction on the first count of
burglary and upholding the convictions and sentences on the other
three counts.
Expert evidence in comparing ear...

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