R v Atkins
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes |
| Judgment Date | 02 October 2009 |
| Neutral Citation | [2009] EWCA Crim 1876,[2009] EWCA Crim 899 |
| Docket Number | Case No: 200801604 D4 200801607 D4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 02 October 2009 |
[2009] EWCA Crim 1876
His Honour Judge Kramer QC
Before :lord Justice Hughes
Mrs Justice Rafferty
And
Mrs Justice Slade
Case No: 200801604 D4 200801607 D4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
Mr J Stone and Mr P Woodall (instructed by Ally Lindsy) for the Appellants
Mr J N Donne QC and Mr J Evans (instructed by Crown Prosecution Service) for the Crown
Hearing date : Thursday 30 th July 2009
Lord Justice Hughes :
The issue in these appeals relates to the permissible manner in which an expert in facial photograph comparison (often called 'facial mapping') may express his conclusions. The expert gave evidence about the similarities between the face of the offender caught on indistinct CCTV footage and the face of Dean Atkins. There is and was no suggestion by the Crown or the expert that he could positively identify Dean Atkins. There is and was no argument by the defence against the admissibility of the expert's evidence as to similarities between the face on the camera and that of Dean Atkins. What is contended is that it was impermissible for the expert to say that in his view those similarities lent something between support and strong support to the allegation that the man in the camera shot was Dean Atkins. The expert habitually used, and used on this occasion, what has been described as a sliding scale of propositions running from “lends no support” to “lends powerful support”. It is contended that such an expert should never use any of these expressions but should be confined to identifying the similarities or dissimilarities between the faces compared.
On the night of Sunday 5 th/Monday 6 th November 2006 a team of three men committed two armed robberies at the homes of targeted victims in the Uxbridge/Yiewsley area of west London. Both offences had clearly been planned. The first target was a Chinese widow in her sixties who lived alone and might be expected to have at home the takings from the family restaurant. The second was the occupier of a substantial house who might be expected to have valuables in his home. There was ample evidence that the offending team was the same for each, and that it moved more or less immediately from the first house to the second. The Chinese lady had been attacked, dragged around her house bleeding, apparently in search of a safe, and eventually bludgeoned to death. The robbers had then driven about 2 or 3 miles to the second target house. There they forced entry, terrorised the occupier and his two teenage children with an 'imitation' pistol, a knuckleduster and a knife, but were, in the end, repulsed. They left, leaving the gun behind. There were accordingly counts for murder, two aggravated burglaries, wounding the second homeowner with intent, and for a firearms offence. The appellants were convicted by the jury on all counts.
By the time of the trial it was common ground that one of the robbers was a man called Carty, who had been arrested but had killed himself whilst on remand. These two appellants, who are brothers, were agreed to have been in Carty's company not long before the offences. Dean had escaped from prison in Kent on the previous day (Saturday), and had been helped to do so by Michael and Carty. The three had been together in a local public house on the evening of the robberies. They were also found together the following morning at about 11 a.m. at the home of a girlfriend of Carty, who thought that they had slept that night in her house. There was also evidence that about ten days later the three of them had been together in the same public house when Michael Atkins produced a ring answering the description of one specially made for the Chinese family and made a joking reference to it having been made easy for him. But it was the case of both these appellants that they had had nothing to do with the robberies, which had been committed by Carty in the company of others who had never been found. By their defence statements each advanced an alibi for the night in question. Dean contended that he was at the home of his sister and went to the house of Carty's girlfriend only the next morning. He did not give or call evidence at the trial. Michael contended that he had spent the night in bed with Carty's girlfriend, and gave evidence to that effect; she and her mother both said that he had not.
At the house of the second robbery there was a CCTV camera outside, covering the front door. The three robbers wore balaclava masks, but the camera showed that at one stage one of them came to the doorway and looked out, not then wearing the mask. It was this footage which was examined by Mr Neave, an expert in facial comparison.
Mr Neave is a medical artist of over 40 years' experience in service at the University of Manchester. His speciality is in facial features and their relationship to the underlying anatomy. For about 20 years he has specialised also in facial comparison. His report, and in due course his evidence, explained his approach and techniques as follows:
i) it is well known that a number of persons may share the same proportions of face, and similar features; two people may have faces which appear indistinguishable to his examination; accordingly his comparison cannot make a positive identification, although it may make a definite exclusion because there may be irreconcilable differences in features;
ii) he uses a computer with high definition to compare images; the CCTV footage is examined stopping every second;
iii) two faces being studied are (a) compared for their horizontal and vertical proportions, (b) compared by examination and description of the shape and form of their features (this known as morphological examination), and (c) may be measured for both distances and angles between features, using a grid superimposed on the faces. The first and third exercises require comparable camera angles and perspective; the second does not, but any difference in perspective must be allowed for.
iv) if those tests do not eliminate the suspect, the photographs can also be superimposed one on the other, and part of one face can be substituted for the same part of the other, and juxtaposed with the remainder of the other, both as further checks.
Mr Neave had examined the CCTV shot, which was far from clear to the naked eye. He had compared it with photographs of both appellants, Carty, and approximately 20 other men who were known burglars in the Uxbridge area. That last collection was not of course a comprehensive range of possible culprits but no doubt provided a range of facial features. The exercise had taken two weeks, and some 16 hours had been spent concentrating on the comparison with the photograph of Dean Atkins. He had eliminated Carty and Michael Atkins by the second (morphological) stage, the first easily and the second after more subtle examination. He explained why by reference to comparison prints and to their noses, jaws, earlobes and the like. He also eliminated the other 20 men. In relation to Dean Atkins he said that he could find no difference between the photograph of Dean Atkins and the CCTV image on morphological examination and identified particular similarities in eight different areas, of which the principal were nose, mouth, upper lip and chin. The camera angles from which the photograph and the CCTV image were taken were virtually identical and thus sufficient to enable grid measurements to be made. These were also consistent with the photograph of Dean, and so was the product of the two superimposition or substitution tests.
In evidence before the jury Mr Neave identified nine different factors which could affect the reliability of his exercise. Many related to the quality of the photographs and the various things which could affect that. Another was pixilation, which is or can be image compression when a photograph is transferred to a computer. Two more of his stated risk factors were:
i) the possibility that two different people may appear indistinguishable; and
ii) the fact that there exists no database of facial characteristics.
He also dealt with the particular quality of the CCTV photograph of the offender, which was significantly limited by short duration, some element of distortion at one edge, shadow and the sudden change from dark to light when the door was opened and the person appeared with light to one side beyond him.
Having traversed the detail of consistent features and absence of any inconsistencies, and having explained his techniques, Mr Neave expressed his conclusions by reference to a range of expressions. They were set out in his written report in tabular form as follows:
Mr Neave told the jury that he used these five different forms of expression. In the present case, he said that in his opinion the similarities which he had identified gave support to the proposition that the man on the camera was Dean Atkins which he put somewhere between “the top of (3) and into (4).” This part of his evidence, as summarised by the judge, was in these terms:
“This comparison therefore offers a level of support for the allegation that Dean Atkins and the offender are one and the same person, between 'it lends support' and 'lends strong support' to that conclusion. But you should remember this, that, as Mr Neave conceded, there is no database which would enable him to give a statistical analysis and so his scale is based on his own experience and expertise and, he added, in this case on the fact that...
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