Neutral Citation Number: [2013] EWCA Crim 712
Case No: 201200669 C5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
The Hon. Mr Justice Treacy
T20117239
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 15/05/2013
Before :

LORD JUSTICE LEVESON
MR JUSTICE FOSKETT
and
MR JUSTICE HICKINBOTTOM
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Between :

	DAVID ALLAN NORRIS	Appellant	
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	THE QUEEN	Respondent	

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Tim Owen Q.C. and Aaron Watkins  (instructed by G. T. Stewart, London) for the Applicant
Mark Ellison Q.C. and Alison Morgan (instructed by Crown Prosecution Service) for the Crown

Hearing date : 10 May 2013
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Judgment
Lord Justice Leveson : 
1.	Just over 20 years ago, an 18 year old young man, Stephen Lawrence, was murdered in circumstances which have become seared in the minds of the public.  Five youths were arrested; two were charged but proceedings were abandoned by the Crown Prosecution Service on the grounds of insufficiency of evidence; a police review led to no further action.  A private prosecution was then commenced against the five who had originally been arrested.  In relation to two (including this applicant), the prosecution was abandoned at committal.  At the trial in the Central Criminal Court of the other three (including Gary Dobson), acquittals followed a ruling by Curtis J to the effect that the identification evidence was unreliable. 
2.	Following an inquest in February 1997, the Daily Mail publicly accused the five youths of murder and invited civil proceedings: none was instituted.  In the following July, a public inquiry was established, chaired by a retired High Court Judge, Sir William Macpherson of Cluny. In February 1999, the inquiry concluded that the Metropolitan Police was institutionally racist and was highly critical of the original investigation.  It was recommended that the rule against double jeopardy (preventing a second trial for the same offence) should be abrogated: this change was effected by s. 76 of the Criminal Justice Act 2003.
3.	In 2006, advances in forensic science led to a review of the forensic evidence in the case.   Following the results of that investigation, on 23 October 2010, the Director of Public Prosecutions applied to the Court of Appeal to quash the acquittal of Gary Dobson on the grounds that there was new and compelling evidence; that step was not necessary in relation to the applicant against whom the private prosecution had been abandoned before he was placed in jeopardy of conviction.  On 18 May 2011, Dobson’s acquittal was quashed (see R v Dobson [2011] EWCA Crim 1256, [2011] 2 Cr App R 8) and the path was clear for his prosecution alongside that of the applicant.  
4.	That short history provides the background circumstances to the commencement of these proceedings so many years after Stephen Lawrence’s death.  It underlines the remarkable determination with which Neville and Doreen Lawrence have pursued justice for their son, and is important background in the context of the case, not just because of the issues relating to policing and criminal justice that it has exposed over the years but also because it explains the delay.  
5.	Although an appropriate way to start this judgment, however, these facts must now be put entirely to one side.  David Alan Norris, the applicant, was entitled to a trial in accordance with the law, based on the presumption of his innocence.  He is equally fully entitled to challenge the way in which that trial was conducted: this application for leave to appeal has proceeded entirely on that basis.
6.	As for the trial, on 14 November 2011, the applicant (by then 35 years of age), and Gary Dobson appeared at the Central Criminal Court before Treacy J and a jury.  On 3 January 2012, both were unanimously convicted of murder. Having regard to their age at the time of the offence (that is to say, under the age of 18 years), both were sentenced to detention at Her Majesty’s pleasure, an indeterminate sentence which is the juvenile equivalent (and of similar effect) to imprisonment for life in the case of an adult.  The applicant was ordered to serve a minimum term of 14 years 3 months.  Both men applied for leave to appeal against conviction; having been refused leave by the single judge, both renewed their applications although Dobson has since abandoned his attempt to appeal.  
7.	In these circumstances, the court considered the conviction of the applicant only.  Having refused to grant an application to adjourn the hearing (and authorise funding for the applicant to obtain further fresh expert evidence), at the conclusion of the hearing, we announced that the application would be refused.  Having regard to the public interest in the case, we decided to put our reasons into writing.   These we now provide.
The Facts
8.	It was just after 10.35 pm on 22 April 1993 that Stephen Lawrence was waiting at a bus stop on Well Hall Road, Eltham with a friend, Duwayne Brooks. No buses arrived and the two walked south towards the Well Hall roundabout to see if any were coming. As they reached the area just beyond the junction of Dickson Road with Well Hall Road they turned around and started back towards the bus stop. By the time they reached the area of the zebra crossing, there was a group of about five white youths crossing over Well Hall Road from the north east corner of the roundabout coming toward them.  As heard by Brooks, one of the group said, “What, what nigger”. Brooks turned to Lawrence and told him to run. 
9.	The group caught them in the junction of Dickson Road. Brooks managed to run off north up Well Hall Road. Lawrence did not and the group quickly surrounded him. He was stabbed twice to the upper torso: the first wound tracked vertically downwards from about the middle of the right collar bone and severed an artery; the second wound went into the left shoulder tracking slightly upwards from horizontal and also severed an artery. An eye witness saw him go to the ground, roll onto his side and pick himself up before running after Brooks up Well Hall Road. Other witnesses saw the group depart up Dickson Road. Lawrence managed to run just over 200m before collapsing on the pavement opposite the junction with Downman Road. At 10.43 pm, Brooks called the emergency services; the police arrived seven minutes later. Lawrence was taken to hospital where, tragically, he died shortly after. In the opinion of Dr Richard Shepherd, the pathologist, who carried out the post mortem examination, death was caused by the loss of blood occasioned by the cutting of major blood vessels caused by the stab wounds.
10.	A police investigation started.  Stephen Lawrence’s heavily bloodstained clothing was removed at the hospital as quickly as possible and secured in sealed red hospital sacks. His blue cardigan, a ‘Raiders’ jacket and white vest were put into one bag; his green elephant cord trousers were put into another along with his underclothes, socks and shoes.  All were handed to the police whereupon the wet items were dried and the jacket photographed.  They were then secured in a disused police station at Eltham Police Station, being transferred on 28 April 1993 to the Police Forensic Science Laboratory in Lambeth where they were kept pending examination by forensic scientists.
11.	The focus of the police quickly turned to a number of young men including this applicant, then 16 years 7 months.  On 7 May 1993, the police went to the home of his parents in Chiselhurst.  He was not there but a search led to the recovery of a pair of blue jeans, found on the floor of his bedroom; and a blue sweatshirt, found in his bedroom wardrobe. The exhibits were placed in bags which were then sealed and taken initially to Bromley Police Station before being moved to Eltham Police Station and placed (either in boxes or in plastic bags) in the same disused cell as the Lawrence exhibits.  On 10 May, the applicant was arrested after voluntarily attending the police station; when interviewed, he declined to answer questions.  Thereafter, on 15 May and 8 June 1993 respectively, these bagged exhibits recovered from his home were also taken to the laboratory in Lambeth. 
12.	The first scientific examinations (at various times between 1993 and 1995) concerned a search for fibres which might have been transferred from the applicant’s clothing to Lawrence’s clothing and not the other way round.  In order to do so, the scientists made contingency tapings by systematically placing pieces of a type of sellotape onto the clothing in order to remove fibres.  The strips of tape were then attached to acetate whereupon the acetate sheets were heat sealed into a polythene bag.  At that stage, the tapings were subjected to examination with the use of a microscope. In addition, the applicant’s clothing was screened using standard procedure for blood.
13.	On 17 May 1993, Yvonne Turner, a Forensic Scientist, took fibre tapings from the applicant’s jeans and, on 11 June 1993, did the same in relation to the sweatshirt. On 28 July 1993, she took fibre tapings from Stephen Lawrence’s ‘Raiders’ jacket and green trousers. 
14.	In 1995, the ambit of the examinations so far undertaken was slightly broadened when another forensic scientist, Dr Angela Gallop, instructed by Mr and Mrs Lawrence, reviewed the scientific examinations. The blood screening was extended to further areas of the suspects’ clothing (including those of the co-accused, Gary Dobson). Some limited examinations were also carried out to look for possible fibres transferred from Stephen Lawrence’s clothing to that of the suspects. In short, however, there was no relevant scientific evidence found in relation to the jeans and sweatshirt.  Consequently, unlike his co-accused, the applicant was never charged with any offence relating to this incident. 
15.	After the disaster of the first investigations and trial, there was a renewed determination to solve this murder and, starting in 2006, a re-investigation of the exhibits was commissioned by the police using a new team of scientists from LGC Forensics, a laboratory that, since the late 1990s, had begun to develop an expertise in “cold-case” reviews.  This consisted of a fresh consideration of the sellotape lifts or tapings which had been made by the Forensic Science Service of Stephen Lawrence’s outer clothing. In particular, they decided to examine these tapings from Stephen Lawrence’s outer clothing to see if there was any evidence of paint which could have been transferred from a scaffold pole recovered from near the scene. This examination exposed a series of connected findings which culminated in the discovery of new evidence. 
16.	The main findings related to the co-accused of this applicant, Gary Dobson.  But there were important findings in relation to the applicant as well.  In particular, a total of seven fibres (six matching Stephen Lawrence’s green cord trousers and one matching his red polo shirt) were found on the taping made by the Forensic Science Service in June 1993 of the sweatshirt recovered from the applicant’s bedroom.
17.	In addition, the jeans which had been taken from the same bedroom were re-examined. From within the debris collected after examination, there were two short, dark brown coloured cut hairs (1 mm and 2 mm in length). The 2 mm long cut hair was sent to the USA for mitochondrial DNA (mtDNA) testing because it was a hair without a root.  It is worth explaining that mtDNA testing focuses on the DNA within the hair cells that is passed down the maternal line. The number of profiles available for comparison in mtDNA testing is less, so are shared by more people in the population. The “match probability” within a population group of mtDNA profile is therefore generally higher than might be the case in the more commonly used DNA test. Having said that, however, the profile matched that of Stephen Lawrence and was assessed as being quite rare: the frequency was 1: 1000.  Many short cut lengths of rich dark brown densely pigmented hair were also recovered from tapings and debris from items of Stephen Lawrence’s clothing, from some of which a mtDNA profile was also recovered that matched his mtDNA. 
18.	Evidence called at the trial by the prosecution included that of a forensic scientist, Roy Green.  His evaluation of these findings was:
“… based on the colour, type and physical properties of these fibres, and their relative rarity … when taken together this combination of fibres provides at least strong support for the assertion that they came from items of clothing relating to Stephen Lawrence rather than being chance matches.”
19.	He dealt with the possible transfer mechanisms whereby fibres might have migrated from one piece of clothing to another.  These were primary or direct contact between the sweatshirt and Stephen Lawrence’s clothing, secondary transfer (that is to say from the trousers and polo shirt to another garment, X, and from that garment to the sweatshirt) or tertiary transfer (from the trousers and shirt to garment X, from garment X to garment Y and then to the sweatshirt).  He said:
“… given the nature of the attack, with its limited duration, it is likely that there would not be particularly high numbers of fibres transferred to the clothing of (the attackers).
The number of matching fibres present on the purple sweatshirt DC/7 is higher than one might expect if they were from secondary transfer and far more if due to tertiary transfer …
There are essentially two ways in which the fibres originating from Lawrence’s trousers and polo shirt might come to be on the sweatshirt: either they were all that remained of fibres transferred to the sweatshirt following primary contact with the clothing of Lawrence, or alternatively, the matching fibres were not due to primary contact with the clothing of Lawrence and were deposited via an indirect route, which did not involve them coming into contact with Lawrence’s clothing. In my opinion the presence of these fibres provides at least moderate scientific support for the assertion that they arrived as a result of primary contact with the clothing of Lawrence rather than having been deposited via an indirect route.”
20.	It was obvious that the new scientific evidence developed by LGC Forensics and, in particular, its cogency was at the heart of the prosecution case.  As the judge made clear this evidence was only fit for use if it had not been contaminated over the years.  The possibility of contamination was considered in depth by another Forensic Scientist, Rosalyn Hammond. She had looked at the history and continuity of the exhibits specifically with an eye to that risk.  From LGC, she had all their records; from the period before LGC became involved, she had police reports and documents; and she had sat in court for that part of the case when evidence was given (and tested in cross examination) by police officers, civilian staff (including laboratory staff) and the Forensic Science Service. She had assessed whether contamination had or might have given rise to the new scientific evidence produced. She had looked at each item separately tracking back from the new findings through the history of the exhibit. She relied on evidence given by individuals as to what they did or did not do in their handling of the exhibits. 
21.	Ms Hammond gave evidence, making the assumption of the worst-case scenario in relation to matters that were not the subject of clear evidence. Her overall conclusion was that she accepted there had been a number of hypothetical opportunities for cross-contamination to have occurred but on detailed examination the risk of such cross-contamination was so remote that it could safely be excluded. 
22.	In the light of this forensic evidence, in early September 2010, the applicant was re-arrested. The detail of the new scientific findings on the clothing was put to him. He made no comment.
23.	A second limb to the prosecution case concerned evidence obtained by the police following covert surveillance within a private flat in Footscray Road, Eltham occupied by the co-accused Gary Dobson and another man, Charles Martin.  It became known as the Footscray evidence and took the form of a DVD which had been made in December 1994, 20 months after the murder and involved the applicant together with friends or associates of his in behaviour, according to the prosecution, which was racist and violent.  The recording reveals that the applicant held racist views which extended to the approval of racially motivated serious violence, including the use of knives against black people, acquiescing in similarly reprehensible behaviour and conduct of others who used racist language.  
24.	The prosecution sought to introduce this evidence pursuant to the provisions of s. 101(1(d) of the Criminal Justice Act 2003 but the judge declined to rule on it until after the scientific evidence had been concluded.  At that stage, the prosecution contended that the Footscray evidence was admissible because one of the principal matters in issue was whether the applicant was one of the attack group and, if so, whether he participated in the attack in the realisation that one of his number might resort to the infliction of serious injury with intent to cause really serious injury or to kill. Evidence tending to show that (i) the applicant harboured racist views against black people; (ii) these views extended to an approval of the infliction of racially motivated serious violence (including the use of knives); and (iii) he associated together as members of a group of like-minded young men would, according to the prosecution, have substantial probative value in terms of the jury’s determination of these principal important issues.
25.	Having said that, the prosecution accepted that the evidence could be used only after the jury was, first, satisfied to the requisite standard that the blood, fibre and hair findings made in the main by LGC Forensics in 2007 and onwards were not the result of contamination after the suspects’ clothing was seized in May 1993, but rather arose out of the attack.  If, however, the jury were sure that the allegation of contamination could and should be rejected, the bad character evidence could then be used by the jury when determining further issues they had to consider.  Whilst this evidence alone could not identify participants in the attack, taken with other evidence, it was argued that was relevant and admissible as being capable of supporting the proposition that an individual defendant did participate; and was also relevant and admissible on a second important issue, namely whether a defendant participated in the attack with the requisite intention for murder. 
26.	The Judge ruled that some of the Footscray evidence was admissible. His central approach was to “focus on conduct where the one or other of the defendants was present, those being occasions where they either uttered words themselves or witnessed others speaking or acting in a particular way”.  Evidence where a particular defendant was not present would not be admitted; however where present, and present without objection to the conduct taking place, it was capable of demonstrating acquiescence in such conduct and shared attitudes.  This ruling forms the basis of the original ground of appeal.
27.	The jury viewed the DVD. The Judge directed at that stage and, on many occasions during the course of his summing up, that the evidence had been admitted for a particular purpose only. It could not be used in considering the first key question: whether contamination of relevant exhibits in the time after seizure by the police had occurred. Only if the jury was sure that there had been no contamination could this evidence be used in going on to consider other issues in the case.
28.	We turn to deal with the defence case.  The applicant gave evidence in terms that he had nothing to do with the death of Stephen Lawrence and was not in Well Hall Road that night. He could not say where he was and could have been with family and friends. Of the clothing that had been seized from his bedroom, he did not recognise the jeans as his but could not be sure about the sweatshirt.  His views, he said, were not prejudiced; his language evidenced in the Footscray DVD some 20 months later was immature talk and all part of growing up.
29.	The applicant’s mother provided alibi evidence but, in the context of this application, the evidence given by the applicant’s brother, Clifford Norris is of particular importance.  He said that the purple sweatshirt recovered from the applicant’s bedroom was his; he said it was hard to say if the jeans were. Some of his things must have been left in the en suite bedroom which he and his brother, Ben, had occupied before the applicant. He and the applicant had swapped bedrooms some time before the police search. He had left some of his clothes in the room being used by the applicant when the search took place.  
30.	When Clifford Norris was cross examined by Mr Mark Ellison Q.C. for the prosecution, it was suggested that one explanation for the scientific evidence and the presence of hair and fibres on the sweatshirt and jeans was that the applicant had worn some other garment other than the sweatshirt at the scene of the attack and then subsequently left that clothing next to the sweatshirt thereby creating the possibility of indirect contact.  This suggestion or, as the oral argument developed, the defence reaction to it, forms the basis of a second ground of appeal, added when Stephen Batten Q.C., then acting for the applicant, advised that the applicant should feel free to question his judgment in not pursuing what he then contended was the unfairness of this ‘eleventh hour’ way of putting the prosecution case.
The Footscray Evidence
31.	Mr Tim Owen Q.C. (now acting for the applicant) argues that the admission of this evidence, in a case with such exceptional features and unique profile, risked causing substantial prejudice out of proportion with any probative value such that the judge should have excluded it either under s. 101(3) of the Criminal Justice Act 2003 or s. 78 of the Police and Criminal Evidence Act 1984.  None of this material pre-dated the killing or was proximate in time to it: it represented no more than an invitation to form a negative assessment of the applicant’s views and conduct in deciding whether the applicant was present and guilty of participating in a violent unprovoked racial attack.  The decision on which the judge relied (R v Adenusi [2006] EWCA Crim 1059) as support for the proposition that “later conduct can demonstrate a relevant character trait or propensity” (the relevant conduct being an attempt to open a bank account producing false documentation five days after a similar incident then the subject of prosecution) did not bear the weight which was placed upon it.
32.	Further, Mr Owen argues that the judge’s directions and ‘Route to Conviction’ did not adequately safeguard the applicant’s position and did not guarantee that the jury would not use the Footscray material more widely.  He went on to submit that it potentially undermined the approach to the scientific issue that the jury had to decide in respect of possible transference. 
33.	Treacy J considered the strength of the scientific and continuity evidence to be sufficient to avoid “the caveat against the use of such evidence to bolster a weak case” and, having examined the DVD in detail, concluded that the evidence from the tapes was capable of demonstrating the expression of and acquiescence in reprehensible behaviour, amounting to a “character trait of violent racism”.  As for the fact that these views were 20 months after the killing, he used Adenusi merely to demonstrate (if authority is needed for such a proposition) that later conduct can demonstrate a relevant character trait or propensity, having made clear:
“The attitudes shown, in my judgment, are reasonably capable of being seen as ones which would have been present in 1993, rather than subsequently acquired.  It is properly for the jury to say whether such a view is justified, just as in another instance it is for them to say whether an anecdote of Dobson’s is harmless or irrelevant or racist in nature.”  
34.	He considered the submissions on the issue of fairness with care and concluded that none led him to consider that the admission of the evidence would be unfair under s. 101(3) of the 2003 Act.  Given the focus on the threshold issue of contamination, he concluded that a direction prior to the calling of this evidence and detailed written directions to the jury would combine to prevent unfairness.  
35.	In our judgment, the approach of the judge and the exercise of his judgement (as explained in R v Saul McMinn [2007] EWCA Crim 3024 per Hughes LJ at [5]) cannot be faulted.  The Footscray recordings undeniably constituted evidence of “reprehensible behaviour” within sections 98 and 112(1) of the Criminal Justice Act 2003; and although it post-dated the fatal attack by some 20 months it was relevant to important matters in issue between the applicant and the prosecution identified by the judge in his ruling, namely whether or not the forensic traces had got onto clothes which on any showing was associated with the applicant, as a result of his participation in the attack; and, if he did participate, whether or not he did so with the foresight necessary to render him guilty of murder. Accordingly the evidence was admissible under section 101(1)(d) of the 2003 Act.
36.	Furthermore, as the single judge observed, the judge was entitled to conclude that the evidence of bad character would not merely bolster an otherwise weak case. He was also entitled to conclude that the probative value of the evidence exceeded its potentially prejudicial effect, and therefore not to exclude it pursuant to section 101(3) of the 2003 Act or section 78 of the Police and Criminal Evidence Act 1984. Obviously, however, it was ultimately for the jury to decide what weight to attach to the evidence, taking into account the arguments now advanced which doubtless mirrored those put before the jury.
37.	As for the approach of the judge to the jury, again, he could not have done more.  Before the evidence was introduced, he made it clear that it could not be used to identify those involved in the attack or in considering the first key question (whether contamination had occurred of relevant exhibits in the time after their seizure by the police); it could be used only if the jury was sure that there had been no contamination when considering other issues.  
38.	In the course of his summing up, the judge provided a written route to verdict requiring the jury (at paragraph 7 of the document) first to consider in relation to each item of clothing, whether they were sure that the fibres, hair (and, in the case of Dobson, blood) came from Stephen Lawrence and that contamination of the key exhibits after seizure could be excluded (noting “Footscray evidence NOT available”).  Only if sure of these matters, in relation to each defendant, were they to consider whether they were sure that he was present and participating in an unlawful group attack on Stephen Lawrence which resulted in his death, marking this issue “Footscray evidence NOW available”: this was paragraph 8.  
39.	He also gave written directions on bad character which it is worth setting out in full. He read them to the jury and repeated the warning.  The direction was:
“You have seen and heard the Footscray tapes from 1994.  They are capable of showing these Defendants acting in a way which the law describes as reprehensible behaviour.  That is misconduct of a sort reflecting badly on the character of the person concerned.
It is vitally important that you do not use this evidence in asking yourself the questions about contamination and whether the fibres are proved to have come from Stephen Lawrence’s clothing set out at paragraph 7 of the Route to Verdict.  You must not use this evidence for that purpose.
You may, however, use the Footscray material if it means what the prosecution says it does in answering the questions at paragraphs 8 onwards in the Route to Verdict document dealing with questions of whether the Defendants were present and participating in the attack and considering their intentions or foresight at the time.
You will remember that the Route to Verdict document indicates to you the point at which you may use this evidence.
You will have to assess that evidence for yourselves and decide what it shows you.  Considering each Defendant separately, does it show violently racist characters who are not averse to the carrying or use of knives?  Or is it no more than big talk by teenage boys: unpleasant, but not actually indicating how they would behave in the real world?
Does the recording made in 1994 only reflect how they were at that time?  Or is it safe to conclude that they must have been like that eighteen months or so earlier and have not suddenly changed in the intervening period?
Does it throw light on how the individual Defendants might think and behave?  Does it throw light on how the Defendants might behave when together and with a group of associates or friends?
The Crown say you can take this evidence into account and that it provides evidence which makes it more likely that these Defendants were present and taking part in the attack upon Stephen Lawrence.  Note that, it cannot, of itself (and must not be used to) identify who was involved in the attack.  Otherwise others would be in the dock as well as these Defendants.
The Crown also say it makes it more likely that, if they were taking part in the attack, they had the necessary state of mind to make them guilty of murder, namely an intention to cause death or really serious harm with a blade; or at least the realisation that one of the others might have a blade and might use it to kill or cause serious harm intending to do so.
The defence argue that this evidence does not assist you and should be put to one side.  If you decide that the evidence does show what the prosecution allege about these Defendants, then you may use it in the way set out above.  
If you do decide it is appropriate to use this evidence, it is very important that you recognise that it is only part of the evidence in the case as a whole and you must look at the full picture.
You must not give the evidence undue weight, and in particular you must not assume that a Defendant is guilty or must have been untruthful in his evidence because of what the Footscray material shows. 
If you were to conclude that the material showed that a Defendant had a violent racist character, that by itself would not necessarily mean that this Defendant had committed the crime alleged.  It would be merely a factor for your consideration.  
I repeat that before you could use this evidence you would firstly have to have taken the view of it which the prosecution submit you should.  Then you must remember you cannot use it to answer question 7 in the Route to Verdict.  It can only be used from question 8 onwards.  And you should bear in mind that Mr Dobson has not been convicted of any offence of violence and that Mr Norris has not been convicted of causing injury to anyone, or using, or carrying a knife.
In the end it is a matter for you to judge.  But as I said to you before you heard this evidence, emotion has no part to play; and however shocking or unpleasant you may have found the Footscray tapes, you must be careful to reach verdicts on the basis of cool calm consideration.”
40.	We have set out the direction in full because of its force and clarity.  Further, at various points in this summing up, the judge reminded the jury of the limited use to which this material could be put and, in our judgment, it is simply inconceivable that the jury would not have recognised the importance of this thorough direction or that they would have failed to honour it at every stage of their deliberations.  
41.	While pursuing the argument advanced in writing, Mr Owen made it clear that this ground of appeal, on its own, would not have justified this renewed application.  We take the view that there is, in fact, no arguable basis for criticising either the ruling or the direction; this ground of appeal fails.  
The Alleged Change of Approach
42.	To analyse this ground of appeal, it is necessary to go back to the evidence available to the Crown at the start of the case and the way in which the matter was put. Mr Ellison was always aware that one of the critical issues in the case was the issue of contamination.  Assuming that the jury was sure that there was no contamination (either in relation to the hair or the fibres), however, the conclusion of the forensic scientist, Roy Green, was that the combination of (seven) matching fibres recovered from the clothing seized from the applicant’s home provided “at least strong support” for the assertion that they came from items of clothing relating to Stephen Lawrence rather than being due to chance.  As recounted above, however, his opinion as to primary as opposed to secondary transfer was less robust: it was that the presence of the fibres provided “at least moderate scientific support” for the assertion that they arrived as a result of primary contact with Stephen Lawrence’s clothing rather than having been deposited via an indirect route.  Taken in isolation, that left secondary transfer as a reasonable possibility.
43.	When interviewed about this scientific evidence, the applicant declined to answer questions and in his Defence Case Statement (provided voluntarily to assist with case management, the Criminal Procedure and Investigations Act 1996 not being in force in relation to this prosecution) there was no reference to the sweatshirt or jeans recovered from his home being owned or only worn by his brother Clifford.   Not surprisingly, the Crown anticipated that secondary transfer was likely to feature in the case (and the dangers of such transfer were inherent in all the contamination issues) and Mr Ellison was not prepared to put the case on the basis that the applicant could only be guilty if he was wearing the jeans and sweatshirt.  The written opening contended that:
“in the context of the other evidence in the case, the only reasonable conclusion to be drawn from the seven matching fibres and hair being found on these items, seized from David Norris’ bedroom, was that he had participated in the attack”.
44.	Assuming contamination could be excluded, the other evidence included the strength of the scientific case against Dobson, the surveillance evidence which demonstrated that the applicant and Dobson were close associates and (although not opened) the fact that it was the applicant (rather than any other member of his family) who was a violent racist.  
45.	After the prosecution opening, defence counsel made short addresses to the jury and Mr Batten stated, for the first time, that the jeans and sweatshirt did not belong to the applicant so that he could not have been wearing them in Well Hall Road when the attack occurred.  He did not indicate at that stage to whom they did belong.  As regards the scientific evidence he said, “We will seek to test the prosecution evidence about indirect transfer”.  It was then unclear how, if the fibres were from Stephen Lawrence’s clothing (a proposition strongly supported), they could be transferred innocently if the applicant was going to say the clothes were not his and he had never worn them, yet he was the close associate of Dobson whose clothing also was found to have blood flake emanating from Stephen Lawrence.  What is clear, therefore, is that Mr Batten was aware of the evidence available to him namely that the applicant’s brother (then 13 years old) would claim ownership.  But, at that stage, Mr Ellison and the prosecution were not.
46.	When Mr Green gave evidence, Mr Batten underlined that support for the proposition of primary transfer was moderate only.  He later put this proposition to the scientist, receiving an affirmative answer:
“Taking David Norris as an example, in deciding what could be said about primary, secondary, or whatever, what you had in mind as the sort of scenario, something you postulated to yourself as a possibility, is that he might know one of the real assailants, for example, and have gone round to that address.  Is that the kind of scenario you had in mind?”
47.	The issue of fibre and hair transfer was clearly important to both sides, not only on this topic but, more significantly, it was at the centre of the extremely detailed analysis of the possibilities of contamination (which, unless rebutted beyond reasonable doubt, would have undermined the entire prosecution).  At the end of the scientist’s evidence, it was clear that secondary transfer was possible, but would require direct contact between an attacker’s clothes and the sweatshirt; tertiary transfer was implausible.  As Mr Ellison remarked in argument, the evidence covering issues relating to the possibility of primary or secondary transfer and the risks of contamination was dealt with “ad infinitum”.  Yet, knowing what Clifford Norris was going to say, Mr Batten did not explore with Mr Green the implausibility or otherwise of secondary transfer to his clothing or the strength that this might add to the argument about contamination.
48.	When the applicant gave evidence, he did not suggest that his 13 year old brother was involved or that Dobson (or the others implicated in Stephen Lawrence’s murder) had visited his home between the date of the murder and the recovery of the clothing.  He did not advance any explanation for the presence of fibres and a hair which the jury could conclude emanated from Stephen Lawrence. In answer to a question put by Mr Ellison, he said in terms:
“I couldn’t possibly explain how anything remotely suggesting coming from Stephen Lawrence was anywhere near any item of clothes taken from my house.”
49.	He said that the Acourts, Luke Knight and Gary Dobson knew his brother through him but that his brother never stayed at their house.  As the applicant did not know who killed Stephen Lawrence, he said that he could not say if he had bumped into anyone (and so transferred fibres).  That is as far as his evidence went.
50.	We have summarised the evidence of Clifford Norris above.  He agreed that he had probably exchanged rooms with the applicant two or so weeks before the murder with the result that his clothes would still have been in what had become the applicant’s bedroom on the night of the murder.  In his skeleton argument for this appeal, without accepting this evidence, Mr Ellison contends that the questions were designed to show that in the context of there being no innocent explanation for how the hair and fibres got onto the clothing some seven miles from the murder scene, there was a plausible secondary transfer mechanism of direct contact between clothing the applicant had worn on that night and his brother’s clothes.  
51.	We turn now to the reaction of those representing the applicant.  Clifford Norris was called on Thursday 15 December and was the penultimate witness in the case (the last being the applicant’s mother). The following day, before speeches, Mr Batten ‘flagged up’ the scenario put to Clifford Norris which he said had not been put to the applicant. Mr Ellison explained that his case had always been that there was no innocent plausible explanation for the hair and fibres on the sweatshirt and jeans.
52.	Mr Batten prepared a supplementary advice on this issue; it has no evidential status but, for the sake of completeness, we record what he says.  Reviewing the opening and his notes, he recognised that what the prosecution had said was not inconsistent with the case that had been advanced although he ‘wondered’ whether there was not an argument that the words had been very carefully chosen so as to allow the defence to mislead itself against a background where it was easy to assume that the prosecution would have been at pains to negate the possibility of indirect transfer via, among others, Dobson or the Acourts.   He considered that the shift of emphasis was unfair and, although not challengeable in law, meant that he would have approached the cross examination of the experts (in particular Mr Green and Ms Hammond who dealt with contamination) differently, contending that the presence of the fibres was not explicable by what he called “the new scenario”.
53.	He also considered whether to seek further advice from the expert instructed by the defence (who had not been called) with a view to asking for the recall of the two experts.  He decided not to do so first because of the timing of the trial (the jury expecting that speeches would be concluded before Christmas).  Perhaps more significantly, his judgment was that he perceived that the evidence of the ownership of the sweatshirt and jeans had been impressive and, in dealing with what he believed was ‘an obviously second string to the prosecution bow’ could suddenly take centre stage without his having had much time to think it through. In the event, he decided to restrict his complaint of unfairness to his closing speech.  He said the decision was his responsibility and that “there was little in depth discussion with either junior counsel or the client”.
54.	Mr Batten’s speech consisted of just such an attack, observing that the theory was not put to the applicant and complaining in the name of fairness.  According to the prosecution note, he described it as lamentable that the prosecution had come up with a new theory at the last minute.  This elicited an exchange between counsel in the absence of the jury to the effect that there had been no change of tack.  
55.	The judge dealt with this issue in his summing up.  Again, it is worth quoting in full.  He said:
“This brought us to a complaint that the prosecution had only relied on secondary transfer in relation to [the sweatshirt and the jeans] at a late stage.  The Crown’s principal case through Mr Green was of primary transfer involving the clothes themselves being at the scene worn by Norris.  Now, complained Mr Batten, the Crown was relying on the possibility of secondary transfer as well, involving Norris having been at the scene but returning to his bedroom and transferring hair and fibres.  Mr Batten said that this showed that the Prosecution’s original case was falling apart.  Mr Batten pointed out that the Prosecution’s point had not been put in terms to Mr Green or David Norris and, at one point, suggested that this was so unfair that you should disregard this aspect of the case completely.  
Well, as to that, you are here to try the case according to the evidence you have heard in the courtroom.  Although the particular scenario may not have been put to Mr Green for his comment, he gave general evidence about secondary transfer with which this scenario is consistent.  So the prosecution are entitled to make an argument to you based on it and you are entitled to consider that argument.  Although the prosecution, mainly through Mr Green, relied on primary transfer to Mr Norris, they have never put their case so strongly as to rule out the sort of secondary transfer scenario you are asked to consider.  So I would suggest that you would need to be very cautious before acting on Mr Batten’s suggestion that you should simply say that this is unfair and, therefore, you should discard this aspect of the evidence without giving it further consideration.  Mr Batten may well have a fair point in saying that he has been deprived of dealing with the matter more fully when questioning Mr Green and David Norris.  If you think there is some disadvantage there, you can take account of that.  Mr Batten may also legitimately argue that, if you think the Crown has changed emphasis, that could be an indication of lack of strength in their case as to primary transfer.  All of those are matters for you to consider but you may think that the correct approach is to give the matter proper consideration, rather than rejecting it out of hand on the basis that, in some way, the Crown should not have relied on this argument and that it would be unfair of them to do so.”   
56.	It was in those circumstances that a ground of appeal was formulated in these terms:
“Serious unfairness was caused by the Crown’s decision to alter the basis of its case as the defence case neared completion and after the applicant had given evidence.  The defence were thereby deprived of the opportunity to deal adequately with the new line and were seriously prejudiced thereby.” 
57.	 In his written skeleton argument, Mr Owen, taking up the point made by Mr Batten, submitted that the central requirement in the case was for the prosecution to prove that the applicant was one of the assailants who had killed Stephen Lawrence and that the evidence came solely from the material found on the clothing seized in a bedroom which he used.  He submitted that the way in which the prosecution approached this topic was not appreciated by the defence until the conclusion of the evidence and that this lack of clarity led to a lack of clarity in the approach of the defence: put simply, the defence could not meet a challenge which it did not perceive.
58.	In a further note, Mr Owen has explained that expert evidence has now been sought to address the late introduction by the prosecution of the possibility of secondary transfer.  Funding has not been available; it is suggested that a report would cost £4,000 and take six weeks although it is worth noting that it is not intended to instruct the expert who was engaged at the trial but, rather, the expert for the co-defendant (who would not, presumably, have considered the evidence so far as it related to the applicant).  Mr Owen submits that there is self-evidently an arguable unfairness at the trial based on Mr Batten’s concessions.  Initially, he submitted that leave should be granted so that the matter can be investigated; latterly he revised that submission and argued that the application for leave should be adjourned and that funding should be made available for the new report to be prepared.  
59.	In oral argument, Mr Owen has sought to move the target.  He now accepts that no criticism is to be made of Mr Ellison or the Crown and he no longer put the application on the basis of unfairness on the part of the Crown.  His criticism is entirely directed at Mr Batten who, he argues, made a significant error in not dealing with the new suggestion by seeking an adjournment, potentially seeking to recall the prosecution experts and obtain his own expert evidence on the issue.   Although taken in good faith, having weighed up the competing considerations with “little in depth discussion” junior counsel and his client (cf R v Clinton [1993] 1 WLR 1181), it was arguable that the incompetence led to identifiable errors or irregularities in the trial, which themselves rendered the process unfair or unsafe and, thus, the conviction unsafe. Whether that was so would depend on new expert evidence: it was therefore in the interests of justice both to adjourn the application and advance funding for that evidence to be obtained.
60.	Mr Ellison responded to the initial application by contending that (as Mr Batten had explained) an expert had been instructed at the time of the trial and that expert must have provided evidence on the issue of primary or secondary transfer which, across the entire case (but particularly in relation to contamination), was both crucial and central.  The permutations and likelihood of primary, secondary and tertiary transfer generally had been explored in great detail. 
61.	Mr Ellison continued that, rather than the Crown having ambushed the defence, by not revealing the case that the clothing was owned by the applicant’s brother in the defence case statement, by failing to explore the impact of the case which the defence knew they were to run with Mr Green and by leaving the development of the case to the very end of the trial, the defence had sought to ambush the Crown.  Mr Batten was aware not only what Clifford Norris was going to say but also how the bedrooms had changed:  the effect of his evidence, following cross examination, may only have been to accept his clothes could have been mixed with his brother’s.   If Mr Batten had wished to explore the possibilities of secondary transfer (to exclude them), it was then open to him to do so. 
62.	For the avoidance of all doubt, we do not believe that the approach of the Crown was unfair or misleading in any way.  The decisions that Mr Batten and his team had to make were always going to be there on the basis that, even if the jury accepted the evidence of Clifford Norris, there still had to be an explanation for presence of the hair and fibres.  In that regard, the forensic examination of the risks of contamination was free-standing and it is unrealistic to expect that the jury would not have had to consider the possibility the applicant (who was the friend of Dobson against whom there was more compelling forensic evidence) was responsible in some way for the fibres that were found in his bedroom.
63.	It is worth repeating the issues in the case.  Stripping the forensic argument to its essentials, the first question in relation to the applicant (paragraph 7 in the Directions and the first paragraph in the Route to Verdict) concerned the findings of LGC Forensics, namely, hair which matched the mtDNA of Stephen Lawrence with a frequency of 1:1000 found on the jeans recovered from his bedroom and the seven fibres (six matching Stephen Lawrence’s green trousers and one matching his red polo shirt) found on the sweatshirt recovered from the applicant’s bedroom.  The question was whether the jury was sure that these hair and fibres came from Stephen Lawrence and that contamination after the police seizure on 7 May 1993 could be excluded.  That involved consideration of secondary transfer in the context of contamination.  The judge’s consideration of this feature of the case exceeded 100 pages of transcript of his summing up. As Mr Ellison observed, there was no aspect of this possibility that was not explored in detail.
64.	Once the jury were sure of those propositions, the next question was presence and participation in the attack and this required consideration of many other features of the case including the relationship between the applicant and Dobson (against whom, as we have said, there was stronger forensic evidence) and the Footscray evidence.  Within this issue was the question how the hair and fibres came to be on the garments found in the applicant’s bedroom: it was nobody’s case (and entirely implausible) that the applicant’s 13 year old brother was involved.  
65.	As Mr Owen conceded during the course of debate before us, there was no alternative innocent explanation for the presence of the fibres and the hair, other than contamination during the period of storage after seizure: any innocent secondary transfer can only have occurred then. In any event, further scientific evidence on transfer could not assist with the issue of the mechanism of secondary transfer.  Mr Owen submitted that such evidence might assist, not on that question, but in showing that secondary transfer (by contamination) was more rather than less likely to have occurred.  However, that was very much an overt issue at trial, and was fully investigated.    
66.	The issue of the location of the hair and fibres (and the overall ramifications of the evidence that Clifford Norris could give) did not arise only after he gave evidence; they were there, throughout the case, and only the defence team knew what the evidence of Clifford was going to be.  Assuming that Mr Batten had never contemplated the possibility that secondary transfer might be raised as a possibility (although he had to decide whether to advance an argument of innocent contamination if the jury were to conclude that the hair and fibres had come from Stephen Lawrence), we do not accept that he was without options.  If he had wished to ask the judge for a day or so to consult his expert, the application could have been addressed on its merits.  If the judge had believed that the prosecution had behaved unfairly (which is not how we read the transcript), he would doubtless have succeeded; he might have done so in any event.
67.	Alternatively, he could decide to take the course that he did which was to use for forensic purposes what he sought to argue was a change of direction.  That was an entirely reasonable strategy and, in the circumstances, given the premise on which the argument must be based namely that the jury were sure that the hair and fibres had emanated from Stephen Lawrence (based on the exhaustive analysis of the risks of contamination in the process), probably the most effective from his perspective.  
68.	The judge then dealt with the issue fully and, in our judgment, with conspicuous fairness. He put the competing arguments to the jury and left the issue to them.  The applicant could not have asked for more.  On analysis, therefore, there does not start to be an argument that new expert analysis would lead to any identifiable error or irregularity in the trial such as would render the process unfair or the conviction unsafe.  It was for that reason that the application for an adjournment (and further funding) was refused.
Conclusion
69.	Having considered both arguments advanced in favour of leave to appeal and rejected each as unarguable, the application was refused.