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Submissions in support of the application for leave
Submissions in support of the application for leave
Ms Martin submitted that the admissibility of forensic odontology evidence of this sort is not suitably regulated or tested to allow it to be admitted at a criminal trial. She relied on the fact that this sort of evidence is not currently regulated by the Forensic Science Regulator, is not the subject matter of any particular CPS prosecution guidance relating to its use, and no primer has been produced on the subject from the Royal Society. Although the British Association of Forensic Odontologists has produced the 2010 booklet (to which we have already referred) the organisation is a membership organisation which does not appear to evaluate the performance of those who are listed on its website as members. There are relatively few qualified odontologists who will accept instructions in this field which might be an indication of the current state of the science. In this case, there was no peer review of Dr Marsden's work. The research papers relied on by Professor Pretty cast real doubt on the robustness of evidence of this nature. She submitted that the trial judge was wrong to dismiss his evidence.
In written submissions, the respondent made the following points:
Dr Marsden is a highly experienced forensic odontologist. While Professor Pretty had relevant qualifications, he did not examine the photographs of the alleged bite marks or the impressions taken from the applicant and Jack Benham. Further, as Professor Pretty accepted during the voir dire, he had not practised as a forensic odontologist for many years and could not remember the last forensic case he undertook;
The context within which this evidence was presented was important. The prosecution did not call Dr Marsden to make a positive identification of the applicant as the biter. The jury’s ability to identify her as such rested on their view of Dr Marsden’s evidence and the conclusions they drew from the rest of the evidence in the case as to the pool of people who might have been responsible for causing the injury;
The various reports relied on by Professor Pretty had limited, if any applicability to this case:
The report of the US National Academy of Science was a lengthy report on forensic scientific evidence which devoted only a few pages to bite mark evidence. This report was critical not of bite mark comparison evidence in general but of those forensic odontologists who asserted that human dentition is unique;
The miscarriages of justice in the United States to which Professor Pretty referred were the result of an attempt by forensic odontologists to assert the unique nature of each person's dentition. The 2016 report, (“Forensic Bite Mark Identification: weak foundations, exaggerated claims”) was critical of the same sort of evidence;
Despite these criticisms of one aspect of forensic odontology, the evidence of forensic odontologists is admissible in the United States;
Other scientific papers (Footnote: 2) suggest the science of forensic odontology has moved on, so that it not now regarded as good practice to offer a definite identification of a suspect through bite mark analysis. The respondent’s case is that Dr Marsden’s approach to forensic odontology is in-line with this approach.