McNamee, R v [1998] EWCA Crim 3524 (17 December 1998)

LORD JUSTICE SWINTON THOMAS: On 27th October, 1987, after a trial lasting 11 days, before McCowan, J, at the Central Criminal Court the Appellant was convicted of conspiracy to cause explosions likely to endanger life or cause serious injury to property. He was sentenced to serve 25 years imprisonment. On 18th January, 1991, the Court of Appeal, presided over by the Lord Chief Justice, Lord Lane, refused leave to appeal against conviction. On 2nd July, 1997, the case was referred to this Court by the Criminal Cases Review Commission pursuant to Section 9 of the Criminal Appeal Act, 1995, on the basis that since the conviction evidence has come to light which might be capable of rendering the conviction unsafe. The Appellant was released from prison recently under the provisions of the Good Friday agreement.

The Appellant, Gilbert Thomas Patrick McNamee, also known as Danny McNamee, was born on 29th September, 1960, in Crossmaglen, a village in Northern Ireland which is close to the Republic and is a British subject. He went to school in Crossmaglen and subsequently to a grammar school in Newry. He did well at school and subsequently obtained a degree in physics at the Queens University of Belfast. Between 1980 and 16th August, 1986, the date of his arrest, he worked at premises known as Kimballs in Dundalk in the Republic of Ireland, first of all part time during his vacations whilst at university, and subsequently full time. Kimballs manufactured electronic gaming machines, which incorporated electronic circuit boards for the programme. It was a part of the Crown case that the premises in Dundalk were used as a bomb making factory, and that the Appellant was one of those who made or assisted in the making of bombs. The owners of the premises were brothers called McCann who were admitted terrorists, and one at least is a convicted terrorist. It is not disputed by the Appellant that explosive devices were devised and built at the premises for terrorist purposes. However the Appellant maintained that although he worked there for a period of some seven years on circuit boards, he had no knowledge that the premises were also utilised for terrorist purposes.

(1) A right middle finger mark was found on the non-adhesive side of a length of red plastic insulating tape which was wrapped around the outside of the tin used to hold an encoder for use with a radio transmitter which had been modified for use in detonating a bomb. The tin holding the encoder was found in the cache at Pangbourne. The Appellant did not, and does not, dispute that it was his fingerprint on the encoder.

(2) A right forefinger mark was found on the adhesive side of a piece of grey insulating tape wrapped around one of the three components which had themselves been wrapped together using black insulating tape round a receiver and decoder and firing unit for a radio controlled bomb. This unit was found in a Tupperware box and was a part of the cache in Salcey Forest. The Appellant did not, and does not, dispute that the fingerprint is his.

It is not, therefore disputed that the Appellant’s fingerprints were found on a piece of insulating tape wrapped round explosive devices found on the two separate occasions at Pangbourne and Salcey. His explanation to the jury was that his fingerprints must have arrived on those two pieces of tape in the course of his work at the premises, Kimballs, Dundalk, and then been transferred on to the bomb equipment by some third party using the two separate pieces of tape. That explanation was, not surprisingly, rejected by the jury and seems to us to be implausible. The admitted fingerprints are very powerful evidence against this Appellant. There was also other important evidence relied on by the Crown to which we will have to refer in more detail.

The Court’s task in this appeal is to resolve the question as to whether the conviction of this Appellant is safe in the light of the fresh evidence. We test that question by asking whether the jury, if they had knowledge of the fresh evidence, would necessarily have come to the conclusion that they did. For reasons which we will set out we have concluded that it is not possible for us to say that the jury would necessarily have arrived at the same conclusion if they had knowledge of the fresh evidence. However it does not at all follow that this Appellant is innocent of the charge brought against him or that he has served 11 years imprisonment for a crime which it has been found that he did not commit. As we have said, the undisputed fingerprint evidence is very powerful indeed, and we consider that on the totality of the evidence of which we have knowledge, the Crown make out a strong case that the Appellant was guilty of a conspiracy to cause explosions in the United Kingdom. We have, nonetheless, concluded that the conviction is unsafe because we cannot be sure that the jury would have reached the conclusion that they were sure of guilt if they had the fresh evidence which we have heard. Furthermore the case as presented to us by both sides is very different to that presented at trial.

Between 1977 and 1979 there were thirteen relevant bomb incidents in Northern Ireland. Some of the components which were recovered can be linked by forensic evidence to components found in the caches at Pangbourne and Salcey Forest. These, in turn, can be linked with Ellis and certain others who worked with Ellis, in particular Ellis’ brother-in-law, Thomas Leonard, Thomas Hughes, and McGuire (“the Ellis connection”).

On 13th May, 1981, the homes of Ellis and Leonard in Dublin were searched. A substantial quantity of bomb making and other terrorist material was found. Ellis, Hughes, Leonard and McGuire were arrested. Ellis admitted that the material found in his home was his and he claimed responsibility for that found at the home of Leonard. A strong connection can be made between the material then found in Dublin and material found at Pangbourne, and, also, though to a lesser extent, material found at Salcey Forest. Ellis was released on bail and subsequently absconded to the U.S.A. but was made the subject of extradition proceedings there and returned to stand trial in Eire.

On 19th April, 1983, Ellis was convicted of possessing explosives in suspicious circumstances and was sentenced to serve 8 years imprisonment. As from that date, and for a period prior to that date, he could not have been responsible for any terrorist offence, but it is clear that others connected with him carried on his work. It is common ground that one of those was a man called Donal Moyna, and the Crown allege that the Appellant was another. Hughes and Leonard were acquitted by the Dublin Court of the charges laid against them.

On 26th October, 1983, the Pangbourne cache was found by the police. In addition to the fingerprint of the Appellant described above, a substantial number of fingerprints of Ellis were found on a number of items related to explosive devices. There were other prints, including prints from Evelyn Glenholmes (known as suspect A at the trial, Ellis being called suspect B), a man called McVeigh (suspect C), and Quigley and Kavanagh who were indicted together with the Appellant as co-conspirators. The Ellis prints are particularly important as showing, according to the Appellant, that Ellis was much more likely than him to be the bomb maker, and, according to the Crown, showing a close connection by way of fingerprints between the Appellant and Ellis.

On 2nd February, 1984, an important incident occurred which played a part in the trial, but has figured large in this appeal. On that day the Appellant was arrested together with Donal Moyna and another man called Aiden Moley. Moyna was seen by the police to hand over a packet containing 17 circuit boards to the Appellant in the cafeteria of the Imperial Hotel, Dundalk. It was alleged by the Crown that the boards were to be used as the base for electronic explosive devices. It was and is the Appellant’s case that he was instructed to collect the package by Jim McCann, and to return it to Kimballs, and that he believed that the boards were to be used for an innocent purpose, namely to stop the dishonest use of the gaming machines.

On the following day, the 3rd February, 1984, Moyna’s home and place of work in Dublin were searched, and a quantity of electronic equipment was found including circuit diagrams, negatives and masks for reproducing circuits and the necessary circuit boards. Moyna was charged with a terrorist offence and acquitted. As a result, the proceedings against the Appellant in relation to this incident were not proceeded with.

The importance of the Moyna material is that it showed a connection between Moyna and Ellis, a strong connection between Moyna and the find at Salcey Forest, a connection with another man called Harford, and consequently also with the controlled explosion at Phillimore Gardens. It is submitted with force on behalf of the Appellant that Moyna and those working with him were the successors to Ellis and were much more likely after the arrest of Ellis to be the bomb makers in relation to the Salcey Forest find, and that, if any connection can be made between Salcey Forest and the Hyde Park explosion then, equally, Moyna was much more likely to be the maker of the Hyde Park bomb than the Appellant. The Crown submits that all this evidence shows a very close connection between Moyna and the Appellant.

On 9th April, 1984, and on 13th December, 1984, a Detective Constable Titchener of the Anti Terrorist Branch of the Criminal Investigation Department at New Scotland Yard wrote two detailed and impressive reports on the finds of the explosive devices and other materials at Pangbourne, Annesley Forest and Salcey Forest, and a connection with other terrorist incidents in England and Northern Ireland, and their connection with named individuals. Much of this material on which the reports were based had earlier been sent to the Forensic Scientists at RARDE at Woolwich. In the first report, dealing with the find at Pangbourne, D.C. Titchener tied in Ellis, Hughes, and McGuire with the manufacture of a large number of the relevant circuit boards. He concluded:

“The connections between Pangbourne and Northern Ireland incidents and finds in Eire are strong but these links are tangled in complex legal and political problems. The evidence against the bomb making team of Hughes, Ellis, Leonard and McGuire is overwhelming and it is obvious that they are responsible for the design and manufacture of the complex encoder/decoder equipment required for the radio control bombs and the long delay electronic timers.”

Neither the Titchener reports nor, more important, the material contained in those reports were disclosed to the Appellant’s advisors by the Crown. The central importance of this material is two-fold. First, although it certainly does not show that this Appellant was not criminally involved with the devices on which his fingerprints were found, it does tend to show that Ellis and his team, and Moyna and his team, and not, as alleged by the Crown, the Appellant, were the prime makers of the explosive devices found at Pangbourne and Salcey Forest. Second, the evidence shows that Moyna was a much more likely candidate than the Appellant as the maker of the Hyde Park bomb.

On 28th April, 1989, Ellis was released from prison in Ireland and was immediately re-arrested. On 17th November, 1990 he was extradited to this country. He was charged with conspiracy to cause explosions in England. On 30th October, 1991, after a trial at the Central Criminal Court he was acquitted. His primary defence was that that, although he had manufactured explosive devices, these were for use in Northern Ireland and he was opposed to their use on the mainland. In the course of the trial, a number of documents, photographs, and other material were brought from Northern Ireland to England, many of which related to matters contained in the Titchener report. Also by this time a further eleven of Ellis’ prints had been found on Pangbourne items including one each on two decoders including the one with which the Appellant’s right middle finger mark was associated, bringing the Ellis total on this item to three. With considerable perspicacity, Mrs. Pierce, the Solicitor who represented both Ellis and McNamee appreciated that the material could be relevant to the McNamee case. As a result enquiries were put on foot which have lead to this appeal.

The indictment as originally laid charged the Appellant with conspiracy to cause explosions between January 1983 and January 1984. On 2nd October, 1987, the Crown applied to McCowan, J. for leave to amend the indictment to enlarge the dates to between January 1982, to January 1984. The express purpose of the amendment was to encompass the Hyde Park bombing in July, 1982. With the blessed benefit of hindsight, which has, inevitably, pervaded this appeal, it would have been much better from the Crown’s point of view if this application had never been made. Again, with the benefit of hindsight, it would have been more fruitful from the Crown’s point of view, if, instead of amending the dates backwards they had applied to amend the dates forward to include the Moyna incident in February, 1984, as an overt act of the conspiracy. No valid objection could have been taken to that course.

“When experts compared what his print was found on with two pieces of the circuit board that, in their opinion, was part of the bomb which went off in Hyde Park in July, 1982, the experts have come to the conclusion that so similar is the artwork on each of the parts of what are, in fact, amplifier boards, that both the items recovered from Hyde Park and the item recovered in the Salcey Forest cache were made from the same original master... it is really like comparing fingerprints, and Your Lordship sees there are 24 common characteristics by which they make their decision.

So my application is to extend the date to include the time when the bomb went off in Hyde Park, and I do so, as I say in the opening note for two reasons: first of all, the Crown’s allegation is that, because of the similarity in the artwork. because in the experts’ view it came from the same master: the Crown will ask the jury to draw the inference that this Defendant manufacture both devices; and, secondly, and as important, when the Defendant was shown the Salcey Forest device he accepted that he did work on circuit boards, and he went on to give a very strong indication, without going into detail, that whatever he did was for some innocent purpose.“

At the conclusion of the Crown case Mr. Ferguson, Q.C. on behalf of the Appellant submitted that the evidence in relation to the Hyde Park explosion was inadmissible on the basis that the evidence was just as consistent with others having been responsible for the manufacture of the bomb as the Appellant. Of course, Mr. Ferguson did not have available all the information that we have. The application was refused, and the ground of appeal based on that ruling was rejected at the hearing in the Court of Appeal in January, 1991.

When the Appellant was cross-examined Mr. Amlot wished to cross-examine him in relation to the Moyna incident in February, 1984. Mr. Ferguson objected. Mr. Amlot submitted that the cross-examination was relevant as to the Appellant’s credibility in the light of certain answers that he had given to the police when interviewed, and his evidence at the trial. The Judge ruled that the cross-examination was permissible. Again that ruling formed a ground of appeal in January, 1991, but was rejected.

By the conclusion of the evidence the stance taken by the Crown had, to an extent, altered. Although the Crown did not resile from the initial stance that the Appellant was a master bomb maker, and that he was responsible for manufacturing the bomb which caused the explosion at Hyde Park, they submitted that it was not necessary for the Jury to come to either of those conclusions in order to find the defendant guilty of the charge laid against him.

The Judge reminded the jury of the evidence given by Dr. Goodwin, another Forensic Scientist called by the Crown, who said that the T.P.U. used at Phillimore Gardens was of the same design as those found at Salcey Forest. He said that he had examined the fragments of the circuit boards found in Hyde Park with one found in Salcey Forest and they were made using the same artwork. The Judge reminded the jury that in cross-examination Dr. Goodwin had agreed that different persons could have made the two boards using the same artwork. The Judge reminded the jury of the evidence given by the Appellant, including his evidence that he accepted that the fingerprints found on the two pieces of adhesive tape were his but that, according to him, they must have arrived on the tapes innocently in the course of his work at Kimballs with the tape being used subsequently by someone else.

What of the Hyde Park explosion? First of all the date: July 1982... The prosecution suggest it is no coincidence that there is a receiver/decoder missing from the Pangbourne Cache. An item which would have been used and destroyed in the Hyde Park radio controlled bomb. All this the prosecution suggests, amounts to a link between the Pangbourne cache and the Hyde Park bomb. In fact they say the material used for and in respect of the Hyde Park bomb (so much of it as was left) went later into the Pangbourne cache, and in that Pangbourne cache is found the fingerprint of the Defendant on an encoder.

What then of the link relied on by the prosecution concerning the amplifier board? It is not any longer in dispute that the two fragments found after the Hyde Park explosion were parts of an amplifier board used in a radio controlled bomb set off by the Provisional I.R.A. The other amplifier was found in Salcey Forest in a Provisional I.R.A. cache intended to be used, so the prosecution say for causing explosions. The two fragments are made of the same material as the board found at Salcey. Each has the same tracking pattern. Mr. Feraday thinks this was a special pattern devised for bombs. Mr. Drake thinks the pattern was originally devised for some other, and innocent, purpose. That, you may think (it is a matter for you) is the measure of their disagreement. Mr. Drake does agree that both came from the same original artwork. On the tape round the receiver/decoder containing the circuit board in the Salcey cache is found one of the Defendant’s fingerprints. The prosecution say you should conclude from that both that the Defendant was the maker, or part maker, of the receiver/decoder found at Salcey and also he was the maker, or part maker, of the receiver/decoder used in the Hyde Park explosion. Mr. Ferguson relies on Dr. Goodwin’s evidence that someone else using the same pattern could have made the Hyde Park bomb. It is a matter for you, members of the jury, whether you are satisfied that the evidence leads you to the conclusion that the Defendant must also have made, or helped to make, the Hyde Park bomb. If it does not so satisfy you, then that would mean that you were not satisfied that the Defendant played a part in the Hyde Park operation. But that would not mean that he had to be acquitted. It is not essential to the prosecution case that he made, or helped to make the Hyde Park bomb.”

That direction to the jury is, of course, correct but it is a marked change from the way in which the prosecution case was originally placed before the jury. Much more important, there can be no doubt that the allegation made against this Appellant in relation to the Hyde Park explosion formed a very substantial part of the Crown case against him evidentially and was likely to have affected the jury’s minds, particularly bearing in mind the horrific circumstances surrounding that event. Mr. Lawson conceded that on the basis of the evidence now available he could not say that on the evidence of the artwork alone that the Appellant had made either the Salcey device or the Hyde Park bomb. However he submits that that was already apparent at the trial itself as a result of the evidence given by Dr. Goodwin and the board found at Salcey and the board used in the Hyde Park explosion were consistent with each other. Furthermore the Hyde Park explosion was, as the Court of Appeal said in January, 1991, relevant to prove the conspiracy itself. That may all be true, but it is a very different picture to that placed before the jury evidentially and contained in the Judge’s Summing Up. Mr. Lawson further submitted that the jury would not have taken the Hyde Park explosion into account unless they were first sure that he was the maker of the board found at Salcey Forest. That is a point which is well made and has a logical attraction, but we certainly could not be sure that the jury took that approach in the light of the way in which the case was placed before them.

“So what do you make of his fingerprints on parts of bombs found in three separate places in England in 1983 and 1984?... the prosecution say one of those prints might be innocently explained; two prints, pretty hard to believe that they could have an innocent explanation: but three prints is beyond coincidence. They say further that the Defendant was caught out, clever as he is, when giving his demonstrations of how the print could have got on to the grey tape.”

(2) That the forensic scientific evidence that the Crown relied upon to link the appellant with Pangbourne and Salcey Forest and so with the Hyde Park explosion by way of artwork and the other distinct features on the circuit boards no longer stood up to scrutiny. Further, the fresh evidence showed that persons other than the Appellant were far more likely to be responsible for the artwork on the circuit boards, and so also for the Hyde Park bomb. Accordingly a jury could not conclude that the Appellant was responsible either for the artwork generally or for the Hyde Park explosion.

The Provisional IRA used radio-controlled explosive devices from 1972. Examples of the control systems were recovered both in Northern Ireland and in the Republic. Until August 1980, these systems included a combined amplifier and decoder unit mounted on a single circuit board. Between August 1980 and November 1981, there were twelve incidents in Northern Ireland in which separate amplifier and decoder circuit boards had been used. This coincided with the IRA changing from MacGregor to Futaba receivers. In October 1980, a lorry was intercepted at Wexford carrying a consignment of terrorist material including a modified transceiver and an amplifier circuit board. Others were found in seizures of arms and equipment: reference has been made to the Ellis and Moyna finds as well as to those at Pangbourne and Salcey Forest. From late 1980 or early 1981, the separate amplifier and decoder boards were recombined into a single unit. The Moyna find included a circuit diagram for such a unit together with the masks and negatives required for production and some of the boards in the envelope handed to the Appellant were combined amplifier decoder circuits.

The transmission part of a radio-controlled explosive device consists of a transceiver and encoder. The amplitude modulation transceivers which were recovered were found to be set at maximum volume and had been modified to transmit on one frequency only close to 27 Mhz to a receiver capable of receiving only two frequencies in the 27 Mhz band. There was evidence that the receivers had been modified with separately purchased crystals. In a very simple device the maker would only need to add a switch to the output of the receiver so that as soon as it detected a signal the detonator circuit would be activated. However, in order to eliminate the risk of the receiver picking up a random signal on the same frequency, an encoder was added to the transceiver and a decoder to the receiver. The encoder generated an audio frequency signal (typically between 2.7 and 5.0 kHz) so that the receiver had to recognise the high frequency radio signal and the decoder, which consists of a tone frequency switch, the audio signal, in order to activate the detonator circuit. The decoder can be set to a single frequency or within a band of frequencies according to the values of two external resistors and two capacitors. Further, in order to overcome any problems which might arise from a weak signal, the output from the receiver was amplified before it was decoded, hence the incorporation of an amplifier circuit either separately or in combination with the decoder. A final safety measure was the fitting of a one-hour timing device using a memopark timer to guard against premature explosion once the system was fully operational.

A circuit board comprises a suitably hard base material, typically fibreglass, thinly coated on one side with copper. A circuit can be hand drawn and the surplus copper etched away leaving the required points where components will be attached, usually circles and squares, with intermediate strips of copper providing the necessary connections between them. For a board that needs to be reproduced many times, hand drawing is unsuitable. The circuit diagram is copied by sticking strips, circles and squares of masking material, which is commercially available, onto a transparent backing and then photographing it. The negative can then be used many times by coating the copper with a photosensitive material and then exposing it to ultraviolet light which leaves the track marked on the board. The copper can then be etched away, leaving the designed circuit or track, the product of the “artwork”.

The components are mounted on the plain side of the board after holes have been drilled in the board so that the connections (“legs”) pass through the board and are then soldered to the copper strip. It is usual to tin the copper strip with a thin coating of solder before carrying out this operation in order to make the soldering easier. Some of the components, typically the 741 amplifier chip used in the amplifier circuits, and the FX 401 decoder chip, have a number of legs, a transistor three, others only two, which may be close together or some distance apart as in the case of diodes. The designer of the circuit may start from a manufacturer’s circuit diagram making his own modifications and may in addition have a manufacturer’s circuit board provided with the integrated circuit such as the FX 401, this being commonly known as a “breadboard”. Once the design has been established it can be reproduced as has already been described, using the mask and photographic negative technique. There may well be minor differences between reproductions from different photographic negatives, the precise positions and numbers of holes drilled according to the actual components used, and variations of design as, for example, the replacement of the three-legged transistor by two diodes. However, circuit boards prepared using the same or similar masks and photographic negatives will be strikingly similar even though there may be minor variations in the components used and in the position and number of holes drilled. Soldering technique will of course vary with the expertise of the constructor.

As we have already indicated, the Appellant’s defence was innocent association; he was not aware that the workshop was producing terrorist devices; his fingerprints could have been deposited on tape used in common with others, and his thumbprint on the battery when it was replaced in a CB radio or taken out of one he was unable to repair. There were issues at trial as to whether the amplifier circuit board, the decoder circuit board and the combined board could, taken in isolation, have an innocent purpose. Doctor Michael Scott who gave evidence before us on behalf of the Appellant has demonstrated that the amplifier circuit in the Dublin and various other Northern Ireland finds, which he calls the “generic”, was very probably derived from a circuit diagram for the use of a 741 amplifier chip, torn from a page of “Practical Electronics” 1972 and found amongst material taken from Patrick McGuire. The decoder circuit was in his view based on a circuit diagram in the manufacturer’s data sheet for the FX 401 integrated circuit and for the post-November 1981 combined amplifier decoder a combination of the two. The combined board had the heat sink (thyristor) removed indicating that the system would only be switched on once thus pointing very firmly to limited use as a firing mechanism. Taken in conjunction with the transceiver and encoder and the one-hour timing delay, the whole system could only have one conceivable use.

After this necessarily somewhat lengthy Introduction to this issue, we turn to the detail of the Pangbourne and Salcey caches and the significance of the comparison of the Salcey and Hyde Park amplifier boards to one another and to the large number of other similar boards recovered in 1980 and 1981. We will also consider the similarity of articles recovered from Ellis and from the Pangbourne cache together with that of the Moyna finds in relation to the Salcey cache.

The radio control equipment included two “Realistic” amplitude modulation CB transceivers modified to transmit on one frequency only in the 27 Mhz band. Amplitude modulation CB transmissions are illegal in the United Kingdom. Two similar transceivers had been recovered in Northern Ireland in 1979. Only one corresponding receiver, a “Robbe Economic” was found. It had apparently been modified with a separately purchased crystal. There were two encoders (Exhibit Numbers DAK 20 and IM 13C) in a “Bridgeport” motor cycle repair kit tin, one decoder and one amplifier. During the trial it was suggested that the Jury might infer that the finding of two transceivers and encoders but only one amplifier and decoder suggested that another amplifier/decoder had been used for the Hyde Park bombing. There was a substantial quantity of incendiary devices comprising electronic timers and gas igniters in cassette boxes together with “Memopark” clockwork time and power units, four of which had been used in England during the autumn of 1981. Lastly, there was a variety of components; the microswitches, mercury tilt switches, magnets, tape and wire.

The Appellant’s right middle finger mark was found on the non-adhesive side of a short length of red plastic insulating tape which was wrapped around the outside of the Bridgeport tin used to hold the encoder DAK 20. The tin had “on” and “of” written each side of the external switch. In July 1979 an “Old Holborn” tobacco tin had been recovered following an incident also marked “on” “of” and bearing Ellis’ fingerprint. Between 1977 and 1983 there were eight other incidents where the misspelling of “off” occurred.

“Robbe Economic” receivers were found at both Ellis’ and Leonard’s addresses following their arrests in May 1981 together with a quantity of separately purchased crystals. The encoders (DAK 20 and IM 13C) were similar to two used in incidents in Northern Ireland and one recovered in Dublin. An integrated circuit forming part of IM 13C was the same as one found in Dublin when Thomas Hughes was arrested at the same time as Ellis. Tone frequency switches FX 101L found at Leonard’s address were the same as the one incorporated in the recovered decoder. The amplifier was similar in circuitry and components to one recovered at Ellis’ address and another found at Galway in March 1982. The timer circuits and components of the incendiary devices were similar to others recovered as part of the Dublin material and also found at Wexford and Galway.

During the morning of 13th December 1983, a member of the public noticed a brown holdall on the pavement in Phillimore Gardens which leads off Kensington High Street. It was a bomb consisting of over ten lbs of industrial high explosive, a detonator and a time and power unit, consisting of a Memopark timer, microswitch and battery holder containing four 1.5 volt Duracell MN 1500 batteries. The device was rendered safe by a small controlled explosion which also caused some of the explosive to detonate. However, the disrupted constituents of the TPU were recovered and on the gold (positive) end of one of the Duracell batteries, the disputed thumbprint was discovered.

The TPU was identical to four others recovered from Salcey Forest on 25th January 1984. The similarities lay in the construction of the wooden box used to contain the components; the position of the timer and microswitch within the box; the type of output wires used; the make and type of microswitch; the battery holder; the battery connector and, finally, the type of adhesive used to attach the components into the box.

The radio equipment included two “Realistic” transceivers modified only to transmit on one channel at 26.770 Mhz and 27.08 Mhz with matching encoders, Futaba Robbe receivers and decoders. Of particular interest were two encoders, PESG 3D and 8D; a decoder, PESG 3B, which was a combined amplifier/decoder containing integrated circuit chips, FX 401 and UA 741TC; PESG 8C, a separate amplifier and decoder, the decoder having the integrated circuit chip FX 401 and the amplifier, an ICP 130, and a clockwork time and power unit classified as “Mark 15” of the same type as that used in the Phillimore Gardens bomb. A print of the Appellant’s right forefinger was found on the adhesive side of grey tape used to wrap together the components of PESG 8C. On fragments of a plastic bag, there was a single fingerprint of suspect D, Donal Moyna.

The receivers formed part of the same batch as those recovered from Pangbourne, the Dublin material, from the lorry at Wexford and a number of incidents in Northern Ireland. The encoder PESG 3D had a track pattern similar to the circuit boards handed by Moyna to the Appellant on 2nd February 1984 and to others recovered from Moyna’s address and his place of work following his arrest, and others used in incidents in Northern Ireland. The recovered Moyna material included a circuit diagram for the amplifier/decoder, “Letraset” and “Chartpak” circuit symbols, and transparent film and negatives together with a substantial quantity of electronic components. The combined amplifier/decoder PESG 3B had a track similar to circuit boards found at Moyna’s address and to the circuit diagram found there. Similar circuits had been used in three incidents in Northern Ireland. The FX 401 integrated circuit had been commonly used in Northern Ireland and one was recovered from Leonard’s address when he, Ellis and others were arrested. However, the integrated circuit in PESG 8C was date-coded for the 31st August 1981 which was after Ellis’ arrest. The heat sink (thyristor) had been bent over rather than cut off as in the Dublin ones. PESG 8C comprised separate amplifier and decoder circuits. The amplifier had a P130 integrated circuit still bearing its batch number, whereas the Dublin ones had been scratched off, and had been modified by the replacement of the transistor with two diodes. In addition, resistor 4 had been changed from 10K ohm to 1 megaohm in order to increase amplification. The soldering was different in quality and workmanship to the Dublin boards and the style more consistent with the boards from Newry and Wexford. It was apparent also, that in addition to the modifications, the board had been dismantled and reconstructed: the integrated circuit had been cut off (shortening its legs) and resoldered. Wires had been cut and joined.

The significance of the similarity of artwork has now been explored, particularly by Doctor Scott, whose evidence was to the effect that all the amplifier boards, while varying to some extent as to their components, have in common the tracking, which to the naked eye is identical. The Hyde Park and Salcey Forest boards did not therefore stand alone in the twenty-four points of similarity “like a fingerprint” as emphasised at the trial. One respect in which they were said to be similar to each other but dissimilar from other boards considered by Dr Scott and illustrated in his photographic bundle was that the transistor had been replaced by two diodes on the Salcey board and possibly on the Hyde Park board. On the Salcey board one of these had been fitted the wrong way round allowing the signal to flow to earth rather than to output. Possible modification to the Hyde Park board was to be inferred from extra holes drilled for the diodes but Dr Scott did not regard this as conclusive. In fact it had six holes which do not appear on the Salcey board but hole No.7 on the marked up photograph is not drilled whereas it is on the Salcey board and, conversely, No.8 is drilled on the Hyde Park board but not on the Salcey board. Dr Scott considered the Hyde Park board to be much closer to the one recovered at Newry in November 1980 than the Salcey one which he described as “late Ellis”. In addition, as already described, the Salcey board had been dismantled and reconstructed.

In the 1991 Appeal the Court granted leave to the Appellant to call further fingerprint evidence. Those advising the Appellant had retained the services of two further experts, Mr. Waghorn and Mr. Swann. Mr. Waghorn was called. He was a retired Detective Chief Inspector in the Nottinghamshire Constabulary with considerable fingerprint experience. He found ten matching characteristics. In cross-examination he was invited to examine a blow-up of both the original mark and the original left thumb print which had been marked up by Mr. Tadd (for the purposes of the appeal) to show 16 matching characteristics. Mr. Waghorn took time to examine these blow-ups and concluded that his initial view that the mark did not belong or may not belong to the Appellant was incorrect and there were indeed 16 matching characteristics. In the circumstances, Mr. Swann was not called.

Mr. Swann did not, however, change his mind, and at the invitation of the Appellant’s solicitors prepared a report dated 4th January, 1991, which concluded that the mark was “extremely fragmentary and disclosed too few positive ridge characteristics on which to base an identification and satisfy the standard required”. By “the required standards” Mr. Swann meant the recognised recommendation of 16 characteristics.

Mr. Swann confirmed his view in a second report of 21 October, 1995 which confirmed the identification of marks on the tapes ( as opposed to that on the battery) as matching the Appellant’s prints. On 31st December, 1997, he made a third report in which he concluded that Mr. Tadd’s blow-ups (produced for the first appeal) proved that the mark and the thumb print were positively not identical. Mr. Swann has had 27 years experience of fingerprint work in the West Yorkshire Police, culminating in 15 years as Head of the Fingerprint Department at Wakefield.

We were persuaded to grant leave to call no less than 14 fingerprint experts, all with great experience, in this appeal, and we heard evidence in relation to this single thumb print over no less than 7 full court days. Some of the experts were instructed by the Review Commission, some by the Appellant and some by the Crown. Remarkably, and worryingly, save for those who said that the print was unreadable, there was no unanimity between them, and very substantial areas of disagreement. All the experts, save Mr. Swann who is retired, are currently employed in various police forces.

Standards for the presentation of fingerprint identification in court have been laid down since 1953 by agreement between the Fingerprint Bureau, representatives of the United Kingdom Constabularies and the Home Office. The current standard requires a match of 16 ridge characteristics on any one digit or, where prints are uplifted from two digits, not less than 10 matching characteristics for each digit. Mr. Tadd referred to this standard in his evidence at the trial.

The appellant called Mr. Swann, Mr. Leadbetter and Mr. Braddock; in rebuttal the Crown called two experienced Scottish fingerprint officers Mr. Robert Mackenzie, the Deputy Head of Strathclyde’s Fingerprint Department and Mr. Alan Dunbar a principal officer in that Department with 31 and 27 years continuous fingerprint experience respectively, Mr. James Coppock with over 10 years experience at the Dorset Police Fingerprint Bureau and Mr. John Thraves the head of the Dorset Fingerprint Bureau and the 3 officers of the Metropolitan Police who originally examined the battery mark and matched it with the thumbprint of Mr. McNamee. These were (in order of their examination of the mark) Mr. Andrew Disney with over 24 years experience, Mr. Peter Henley with over 28 years experience and Mr. Tadd himself with over 30 years experience. The Crown also called Mr. Peter Allibone who was in charge of a general criminal team at Scotland Yard which concerned itself with (among other things) quality control for the examination of complex marks and who had become effectively a final arbiter in cases where differences of opinion had been expressed.

It then appeared that Mr. Leadbetter was concerned that the Court might think the Cambridgeshire Constabulary was rowing its own lonely canoe contrary to other police forces and we heard further evidence from the heads of 3 further Fingerprint Bureaux viz. Mr. David Hosgood, Head of the Norfolk Bureau with 34 years experience, Mr. Richard Knowles, Head of the Thames Valley Bureau with 33 years experience and Mr. Keith Townson, Head of the Devon and Cornwall Bureau with 28 years experience. Their evidence was that there was insufficient ridge detail on the thumb mark for it to be safe to make any comparison with the control set of prints.

It is immediately obvious that the battery mark does not show the core of the thumb as revealed on the control print. One could expect that the core should appear some 6 ridges below Tadd characteristic No. 9. It does not do so. Mr. Swann said that the core on the control print revealed 8 ridge characteristics which were not visible on the battery mark. There could only be two explanations for that; either that they were not there or that considerable movement had occurred beneath Tadd No. 9. He said he could see no sign of movement in that position and, if there had been, how did one know the same or similar movement had not occurred in the upper half of the battery mark?

Mr. Tadd responded that the reason why there was no sign of any core was that the mark had been put down on the battery at least twice and that there was evidence of pressure and movement together resulting in the apparent distortion of the core area. This was not said by Mr. Tadd until his statement of 3rd November 1998, 7 days before the beginning of this appeal. He said further in his oral evidence that the absence of a core on the battery mark could be explained either by the fact that the second deposition obliterated the core or by the fact that on each deposition only the tip of the thumb was used so that no core would appear on the end of the battery in any event.

Mr. Swann criticised other aspects of Mr. Tadd’s workings, in particular Tadd characteristics Nos. 2, 3, 5, 7, 8 and 10. He said that characteristics 2 and 3 were unclear and that, if one accepted No. 2, No. 3 was out of position when compared to the control print. He said he could not trace the path of No. 5 which was on the edge of a foggy area; characteristics 8 and 10 were both ends of a short independent ridge which was difficult to position with any accuracy while characteristic 7 appeared only one ridge away on the battery mark but two ridges away on the control print.

Mr. Leadbetter said that he himself made up his mind about fingerprints on the basis of a comparison between the mark and the print. Provided that the matching characteristics were clear, as few as 6 would suffice. He recalled Mr. Skitt coming to see him and that he looked at the mark and said to Mr. Skitt that it was insufficient for comparison purposes because he was unable to find a sufficient number of characteristics in sequence. At greater leisure he examined 2 enlargements before he made his final report; he still thought the mark was insufficient. He had looked at Mr. Tadd’s markings and accepted he could see some of the characteristics marked by Mr. Tadd but he still felt they were insufficient. He was asked about Mr. Mackenzie of Strathclyde’s markings (as to which see (3) below) and agreed that if Mr. Mackenzie were right that could explain the absence of a core in the mark but he pointed out that Mr. Mackenzie’s markings were, in a crucial respect, inconsistent with those of Mr. Tadd and that they could not both be right.

Mr. Braddock explained how the AFR computer system worked and how he had found insufficient ridge characteristics on the battery mark even to launch an accurate search on that system. That was because the system required the operator to identify 7 characteristics before a search could be made but he could only find 5 of them. Since a search was required, he made an informed guess as to 2 more and thus launched a search with, however, negative results. He confirmed that when the marks on the tapes (admittedly the Appellant’s prints), were put through the AFR system, it did not provide any positive response.

Mr. Mackenzie said that he had been visited by Mr. Veljovic of the Metropolitan Police on 27 January 1998 and been given unmarked copies of the battery mark and the Appellant’s print. He made his own copies for examination purposes and then passed what he had received to Mr. Dunbar of the same office and asked him to examine the material also. He was at first drawn to the top of the print but he did not examine that further because the mark was fuzzy down the left side. He noticed in the lower half of the mark a particular feature which he described as a spur which he then found at the top and to the right of the print. Having made this breakthrough he was able to identify 11 characteristics in the middle of the mark which matched characteristics in the top right part of the thumb print. The existence of those 11 matching characteristics satisfied him that the mark was that of the Appellant. He was aware that the UK standard for fingerprint evidence was 16 matching characteristics but he was happy to give opinion evidence on the basis of 11 matching characteristics. He said that the thumb had been deposed at least 3 times on the battery and that there were obvious signs of movement on the mark. He said he could not discern Mr. Todd’s characteristics 8 - 11 but that otherwise Mr. Tadd’s characteristics were almost the same (and in the same sequence) as his own on the lower part of the mark which he analysed. The only divergence was that his No. 1 characteristic was at the top of thumb while Mr. Tadd’s equivalent characteristic (No. 7) was in the middle of the thumb, 7 - 8 ridges above the core. He accepted that this meant that his markings and Mr. Tadd’s markings were not truly coincident and that if he was right (as he was sure he was) Mr. Tadd’s markings of characteristics on the battery mark must be wrong.

Although Mr. Dunbar looked at the lower half of the mark he did not think it the most promising part of it; he did not notice Mr. Mackenzie’s spur at all. He concentrated on the top of the mark. He found 11 characteristics which he was also able to find on the print in coincident sequence with no disagreements. He concluded that the person who made the mark was the person who had given the print. Someone from the Metropolitan Police telephoned on 25 February for a progress report; he reported his confidence that the mark and the print matched but said he did not then know Mr. Mackenzie’s results. On 26 February Mr. Veljovic (or someone else for the Metropolitan Police) came back to Strathclyde and Mr. Mackenzie reported his result as well. They were then shown Mr. Tadd’s markings for the first time and also saw each others markings for the first time. They were surprised to find that they had worked on different parts of the mark but checked each other’s work and agreed with what the other had found. Mr. Dunbar’s 11 markings tallied with the relevant 11 of Mr. Tadd’s markings although their interpretation of the nature of an identified characteristic differed to some extent.

The Dorset Police were asked to compare the mark and the print. Three officers appear to have been involved. We heard from Mr. Coppock who thought he was the first to examine the mark and the print. He concluded in a statement of 12 February 1998 that the mark was made by the same person as the print but that the quality of the mark was such that it did not meet the nationally required standard for proof of identity. In a further statement of 14 April 1998, he said he had found a coincident sequence of 8 ridge characteristics in agreement. That has to be put in the context of a telephone message from Mr. Thraves to Mr. Veljovic of the Metropolitan Police of 5 February 1998 to the effect that the first person to check found 7 or 8 characteristics and was satisfied that the mark was the Appellant’s print, while Mr. Thraves himself and another colleague had examined the mark but could not find sufficient characteristics to make a proper comparison. We cannot therefore be certain that Mr. Coppock did in fact find 8 characteristics on his first examination but only that he, at least, found a sufficient number to make him feel sure that the mark was the Appellant’s print. Mr. Coppock said in evidence that he required a minimum of 8 matching characteristics for the purpose of identification and that he would not himself have used Mr. Tadd’s characteristics 7, 8, 9, 10 and 13.

The first officer to give evidence was Mr. Disney; he was also the first Metropolitan Officer to examine the print which he did on 30 August 1986; he already had a copy of the Appellant’s prints and his task was to check those prints against unidentified marks from the Pangbourne and Salcey caches and the material from Phillimore Gardens. He looked at the battery mark and was initially drawn, in particular, to what have been called the Tadd characteristics Nos. 15 and 16 and 2 and 3. He put a photograph of the mark and the print side by side on the office’s fingerprint comparator machine and eventually found 16 points in coincident sequence. He said the mark was a complicated mark and that he needed to deliberate about it for quite some time but there was no question but that 16 ridge characteristics were present and that an identification could be made. As far as he was concerned, 10 coincident ridge characteristics would have been enough to make him sure. He then passed the photographs over to a second officer to make an independent analysis.

The characteristics which he found were similar to those later found by Mr. Tadd, save that he had not used Tadd No. 13 and Mr. Tadd had not used his No. 6. In cross-examination, however, he accepted that he had marked the equivalent of Tadd characteristic No. 9 on a different place from Mr. Tadd and, more importantly, he had marked Tadd characteristics Nos. 8 and 10 on an altogether different ridge from that of Mr. Tadd. He was forced to agree that, in these respects, he and Mr. Tadd could not both be right. He concluded by saying that if one excluded the bottom half of the mark, one was still left with 11 characteristics in common which was enough.

The second officer to examine the mark was Mr. Henley. Independently of Mr. Disney, he looked at the mark and the print on the fingerprint comparator. He found 16 characteristics in coincident sequence, at much the same points as Mr. Tadd, including the ones in what he called the murky area towards the bottom of the mark. If, however, one disregarded the characteristics in that area, one was still left with 11 characteristics and that was sufficient to establish identity.

Mr. Tadd was the third and senior officer to look at the print; we have already summarised his evidence. But it is pertinent to add that he agreed that he and Mr. Mackenzie could not both be right, that he had made certain errors in the chart he had produced which was designed to show how his marks matched up with those of the other experts in the case and that he had not noticed, until Mr. Disney had been cross-examined, that Mr. Disney had positioned characteristics 8 and 10 at a different place on the battery mark from the place where he had put it. We mention these points not for the purpose of being critical of Mr. Tadd but in order to emphasise that, on any view, the battery mark is not an easy mark to read.

Lastly, under this head, Mr. Allibone was called. He said that he had examined the mark and the print on 18th December 1990 (for the purposes of the first appeal) and had found “such number of characteristics in agreement to leave me in no doubt that they were made by the same person”. He did not say in his original statement how many characteristics he found and his markings have now been lost. In a statement of 16 January 1998 he said he re-examined the mark, paying particular attention to the lower part. He found 8 points in agreement with the top of the thumb and stated that he was convinced that the mark was made by the same thumb put down twice. In his oral evidence he said he was now convinced that the thumb had gone down 3 times and that as a result he felt he could reconcile Mr. Tadd’s conclusions with Mr. Mackenzie’s conclusions even though both those gentlemen asserted that they were in conflict with each other.

In his final address Mr. Lawson submitted for the Crown that many of the Appellant’s witnesses accepted that, although they did not find the mark to be readable, other experts could, and that, apart from Mr. Swann, all the experts agreed that the thumb had been placed down on the battery more than once. He accepted that there was a conflict of evidence about the lower part of the mark but submitted that the majority of the experts, who could read the mark, found 11 common characteristics in the top half of the mark and that they were satisfied that the mark belonged to the Appellant. That was enough to render the verdict safe insofar as it was based on the Phillimore Gardens thumb print.

There was much disagreement between the experts in relation to this print and it is impossible to know what evidence a jury would be likely to accept and what evidence they would be likely to reject. A case on 11 coincident markings is a case different from a case based on 16 coincident markings. The experts asked to give evidence on this issue, including Mr. Swann, all said that they would be satisfied that 8 or 10 matching characteristics are sufficient to prove identity. That would be likely to entitle the Crown to call evidence of such matching characteristics in respect of a particular mark. However that was not the case presented at the Appellant’s trial. We note that in the current 1998 edition of Archbold at paragraph 14-97 it is said that between 10 and 15 matching characteristics on a single fingerprint is regarded as a partial identification and might be forwarded to the investigating authorities but would not be adduced in court. If that statement is intended to be a statement of law we do not think it is accurate. Evidence of fewer than 16 characteristics is not inadmissible as evidence of identification. As we were told by the experts, much depends on the quality of the print itself and the quality of the matching characteristics.

Having heard all the expert evidence called before us, it is impossible to say with confidence which conclusion a jury would have reached. It would have been open to them to conclude not only that the thumb mark could be read, but also that they were sure that it was the Appellant’s print. On the other hand they might have concluded that they were not sure that it was the Appellant’s print. Accordingly we cannot be sure that a jury on the totality of the evidence which we have heard would have found that they were sure that it was the Appellant’s print. That is a matter of importance when we come to the conclusion whether or not this verdict is safe.

In opening this appeal, Mr. Mansfield said that there was massive non-disclosure prior to the Appellant’s trial, and that the non-disclosure was deliberate. In relation to the non-disclosure being deliberate, Mr. Mansfield pointed to certain named individuals. However, prior to the conclusion of the evidence, Mr. Mansfield, without resiling from his position, said that it was unnecessary for the Court to make any findings as to the reasons for the non-disclosure. Mr. Lawson submitted that it was inconceivable that the non-disclosure was deliberate but, he, also, did not invite us to hear evidence on this issue.

We have already said that there was non-disclosure and that the non-disclosure was a material irregularity. Having heard no evidence on this issue, it would be wholly inappropriate for us to make any finding one way or the other whether there was deliberate non-disclosure. It should not be thought that we have made any such finding. Nor have we found the opposite. We have just made no finding one way or the other.

“(3) It may conclude that the impact of the fresh evidence upon the case is not conclusive but is such that, taking all the evidence given both at trial and on appeal together, it cannot resolve one or more conflicts of fact or opinion. If it considers that a reasonable tribunal of fact might properly resolve the conflict in favour of the appellant, and so be left with a reasonable doubt about his guilt, the court should then allow the appeal and quash the conviction, giving consideration to the question whether to order a new trial.”

Mr. Lawson submitted that despite the non-disclosure, the inability of the Crown now to point conclusively to the Appellant as the master craftsman of the artwork for the devices or as the manufacturer of the Hyde Park Bomb, and the evidence in relation to the Phillimore Gardens thumbprint, this conviction is nonetheless safe. He points to the fact that on his own admission the Appellant worked for 6 or 7 years at Kimballs in Dundalk which was being used as a bomb factory, and that his evidence that he had no knowledge of this is unlikely in the extreme. He submits that the two uncontested prints must have arrived on the devices at Kimballs, and this proves beyond a peradventure that the Appellant was in some manner connected with their manufacture, construction or dispatch. The finding of his print at Pangbourne provides a close connection between the Appellant and Ellis, an admitted bomb maker, and others convicted of a conspiracy to cause explosions. Similarly, the finding of his print on the device at Salcey Forest shows a close connection with Moyna and Harford, who have been shown to be manufacturers or keepers of explosive devices. Further, the evidence in relation to the 17 circuit boards handed over from Moyna to McNamee in February 1984 provides very powerful evidence. It is important to bear in mind that this incident occurred outside the period of the conspiracy alleged in the indictment (concluding date January, 1984), but Mr. Lawson submits that the cross-examination on this issue was admissible, and showed that the Appellant’s answers to the police at interview were untrue. Mr. Lawson submits that, although the evidence in relation to the thumbprint is different to that given at the trial, the majority of the experts giving evidence were nonetheless sure that it was the Appellant’s print. His explanations as to how his fingerprints came to be on the two pieces of tape found at Pangbourne and Salcey Forest respectively are not credible. Accordingly, the conviction is safe.

We cannot agree. We accept that the Crown makes out a very strong case that the Appellant was indeed a conspirator to cause explosions, and it may very well be that, as a matter of probability, a jury would still have found him guilty if they had the material that we had. However, we have come to the conclusion, subject only to the question of a retrial (as to which we have not heard any submissions and bearing in mind that the trial took place 11 years ago and the Appellant has now been released), that this case falls into the third of the categories described by Lord Cross and Carswell, L.C.J.; that is that the impact of the fresh evidence on the case is not conclusive, but it is such as to render the verdict of the jury unsafe because a reasonable tribunal of fact might properly resolve the conflict in favour of the Appellant, and so be left with a reasonable doubt as to his guilt.

There was undoubtedly a failure to disclose relevant evidence and that failure amounts to a material irregularity. The case as presented to us is a different case to that presented to the jury. Mr. Lawson accepts that he cannot prove that the Appellant was the designer of the artwork on the circuit boards for the explosive devices, that it is no longer possible to say that the Hyde Park bomb or the “fingerprint” bore “the stamp” of the Appellant by a comparison with the Salcey Forest device, or, that it proved that the Appellant was the manufacturer of the Hyde Park bomb. Mr. Lawson says that none of these factors is essential to prove the prosecution case and the Judge made that clear to the jury in his summing up. However, each or all of them may well have had a real impact on the minds of the jury. The jury might have taken a different view of the Phillimore Gardens thumbprint. Finally, if there had been full disclosure, we have no doubt that the defence would have been presented to the jury in a different way.

England and Wales Court of Appeal (Criminal Division) Decisions

GILBERT THOMAS PATRICK MCNAMEE, R v. [1998] EWCA Crim 3524 (17th December, 1998)

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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> McNamee, R v [1998] EWCA Crim 3524 (17 December 1998) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1998/3524.html Cite as: [1998] EWCA Crim 3524