those prosecutions. But concerns nevertheless remain. In the case of Kirk Mundy, the concern surrounds the circumstances under which what has been described as the `plea bargain' was struck between the prosecution and the defence, which led to Kirk Mundy being convicted upon his plea of guilty to being an accessory after the fact to murder.

8. In the case of Justis Smith, the concern is that, under the existing law as articulated by the Privy Council in Justis Raham Smith v The Queen, Privy Council Appeal No. 44 of 1999, whereas on a no case submission in a criminal trial, a pure question of law, or a question of law alone, may be appealed under section 17(2) of the Court of Appeal Act 1964 by the Attorney General, there could be no appeal by him from a decision arrived at on matters of fact and degree, namely the inferences which could be drawn from the evidence before the jury which did not involve a question of law alone. The effect of their Lordships' ruling is that the Attorney General has no right of appeal on a question of mixed law and fact.

9. Lord Steyn considered that section 17(2) makes an inroad on the cardinal principle of double jeopardy. He referred to the American case of Coreen v United States of America (1957) 355 n.s.184, 2 L ed, 199, where Black J in the Supreme Court of the United States stated the principle as follows (at p.

204): "The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the state with all its resources and power, should not be allowed to make repeated attempts to convict an individual for an alleged offence.'' 10. Referring to the Crown's contention that an appeal should lie on a question of mixed law and fact, Lord Steyn noted powerfully: "...and such a construction would permit a prosecution, bent on presenting a better case at a second trial in order to secure a conviction, to appeal successfully against a discharge of a defendant on a no case submission under section 17(2). In any event, it is settled principle of English law that an acquittal recorded by a court of competent jurisdiction, although erroneous in point of fact, cannot generally be questioned before any other court. An acquittal is final.'' 11. But his Lordship did not stop there. He went on to indicate that even the sacred principle which he had just extolled so eloquently, could be made to bend to the will of the legislature. This is how he expressed himself: "The legislature may abolish or qualify this principle. In order to be effective, such a legislative inroad on the principle requires clear and specific language.'' 12. So it is open to the legislature to amend Section 17(2) of the Court of Appeal Act 1964 if it so wished. But in doing so, it would be departing from a long established principle. Its intention to do so must of necessity be clear and unequivocal. Some would undoubtedly view such a departure from settled principle as heterodoxy of a novel kind eroding rights which have been enjoyed for centuries.

13. If such a hallowed principle is to be abolished or qualified, that process should be undertaken only after the widest possible consultation and only after the opinions and desires of all of the disparate elements of the society are known. There should accordingly be the fullest possible public discourse on the matter and the approach to what some would see as a retrogressive regime should be cautious and deliberate. We so recommend.

14. Their Lordships came to the conclusion that the circumstantial evidence that Mundy was involved in the murder was strong. They thought that the Crown's case against Justis Smith was equally based on strong circumstantial evidence. They found that there was evidence from which the jury could have inferred that the victim was in the presence of Mundy shortly before the attack on the victim and that Justis Smith was still with Mundy shortly afterwards. They thought it surprising that the judge took the view that the circumstantial evidence was "inconclusive to connect the defendant with the commission of the crime''. Their Lordships also thought that "it was no doubt a surprising view for the judge to have taken''. It was "perhaps an astonishing one''.

15. From all this, it seems clear that their Lordships, having addressed their minds fully to the question of whether or not a prima facie case had been made out, and having heard full argument on the matter, were left in no doubt that by the time the prosecution had closed their case against Justis Smith, they had made out a sufficient case, based on strong circumstantial evidence, for the consideration of the jury. They had managed to achieve that result, notwithstanding the many criticisms which had been made of the way in which the evidence had been collected and the case presented.

16. No one can speculate what the outcome would have been if the trial judge, as the Privy Council clearly thought he ought to have done, had sent the case to the jury. In that event, the accused would have been entitled to give evidence if he wished to do so, and to call witnesses including expert witnesses on his behalf. His defence no doubt would have been amply put.

Whatever the outcome, guilty or not guilty, it would have had the character of a verdict of the peers of Justis Smith, rather than a ruling of the Presiding Judge.

17. We have as we said from the very outset not been mandated to enquire specifically into any particular case or cases. But we could not within our terms of reference completely exclude reference to particular cases. The particular case which loomed large before us was of course the Middleton Case.

We have tried to observe the fine line between considering those aspects of Middleton which we felt could be properly taken into account without doing violence to our mandate, whilst avoiding too detailed a probe into those areas of the case which we think could be safely left out of our close review.

18. We have throughout this inquiry, proceeded upon the basis that the principal purpose for which the Commission was constituted was as a means of gleaning from our recommendations, such lessons as could be learnt for the future.

19. Bearing that approach in mind, we have looked at some of the major events of the Middleton case, not so much for the purpose of determining who, if anyone was to be blamed for what, but rather to see if we could discern what, if anything went wrong, and more important, what steps could be taken for the future to avoid a repetition of what went wrong in that case.

20. The first thing which must be discussed in this context is the management of the crime scene itself. There can be no doubt whatever that it was not properly secured in the first instance and competently managed thereafter.

There could not have been a proper and expert scouring of nthat scene for any clues that could have been found there by the use of modern scientific and forensic methods. Nor is there any evidence that efforts were made to protect the crime scene from contamination and from the inadvertent destruction of material of scientific evidential value.

21. Forensic scientists nowadays tell us that all of the persons who were present at, and involved in, the events which led to the death of Rebecca Middleton, would certainly and inevitably have left trace material there from which profiles of their DNA could have been developed. Indeed, the search for DNA material, even when the suspect gives what appears on its face to be a damning indictment of himself in a properly taken written confession, is now routinely and meticulously carried out by modern police forces. This is done for the purpose, not only of assisting in the conviction of the guilty, but also of helping to remove the lamp of suspicion from hanging over the head of the innocent.

22. The next lesson to be learnt from the Middleton case is that the SIO or the Scenes of Crime Officer should be able to accurately assess the situation when he first visits the crime scene. The SIO, in consultation with the Scenes of Crime Officer, must quickly make the critical determination whether outside expert assistance is required. If in doubt, as experience has shown, it is better and safer to call in the overseas expertise sooner rather than later.

Any unwarranted delays may prove fatal to the ultimate success of the investigation.

23. Undue reliance should never be placed upon confession statements.

Particularly where, as with Kirk Mundy, the `confession' is diverting attention away from his involvement in a more serious offence. The material proffered in the confession should be thoroughly checked for its accuracy by reference to independent sources. Meanwhile, the search for other direct and circumstantial and scientific evidence should continue unabated until the SIO is satisfied that he can properly report to his superiors and to the office of Director of Public Prosecutions, that the investigation is complete. Upon a review of the file, the senior Police officers above the rank of the SIO and the Director of Public Prosecutions will advise as to whether further inquiries should be conducted even if and after a charge is brought.

24. Circumstantial evidence has been described as evidence of relevant facts from which the existence or non-existence of facts in issue may be inferred.

As a general rule, a statement of opinion on any relevant matter calling for expertise may be made by a witness qualified to give such an expert opinion.

With the advance of scientific knowledge, a vast body of expertise has developed over the years which is now available to an investigator of serious crime.

25. Experimentation now proceeds upon an almost continuous basis. New discoveries are regularly made. Old techniques and methods give way to modern developments. Thus facial measurements, as distinct from facial mapping, or facial identification by video superimposition, have fallen into disuse as a means of identification. New processes are available for the detection, development and comparison of fingerprints. Genetic fingerprinting is a relatively new tool in the armoury of the modern investigator. Using this technique a human cell taken from a sample of blood, saliva, semen or hair, can be analysed to reveal a victim or a suspect's DNA or genetic 'fingerprint'.

26. The Middleton case has taught us that in all investigations into the Commission of serious criminal offences, the search for circumstantial evidence must be thorough and complete. This requires the skilled detective to display his power of observation, deductive reasoning, the piecing together of disparate and at first seemingly unconnected strands of material, until finally he can plait together a rope, into which the latest scientific evidence is interwoven, around which the DNA evidence has been wrapped, into the kind of sturdy product which the prosecution should seek to place before the courts. We, therefore, recommend that in every investigation, the collection of direct evidence must be carefully conducted. At the same time, a meticulous and minute search for circumstantial and scientific evidence must commence at the very outset of the inquiry, and be painstakingly continued until the case can be properly closed.

*** THE DIRECTOR OF PUBLIC PROSECUTIONS 1. The Commission is satisfied that the separation of the office of Director of Public Prosecutions from the office of The Attorney General is a welcome development. The Former Attorney General of India Mr. Soli Sorabje described the office of Attorney General as being both enjoyable and intellectually stimulating: but so taxing and demanding that having demitted that office, he would never take up that mantle again.

2. Some of the difficulties which were experienced in the Middleton case arose out of the fact that in 1996, the office of DPP did not yet exist. The Attorney General was still burdened with the task of being ultimately responsible for the conduct of Criminal Prosecutions. Faced with the daunting complexity and span of his office, an Attorney General was, of necessity, bound to delegate some of his responsibilities to designated subordinate officers within his chambers.

3. When a serious criminal offence took place in Bermuda in 1996, it was ultimately, the duty of the Attorney General to make suitable arrangements for its prosecution. The Middleton case quickly revealed its peculiar difficulties and complexities. It presented unique challenges to the prosecution from the start. By the time the case against Mr. Justis Smith had come on for trial in the Supreme Court, it must have been abundantly clear to all concerned that the conduct of that particular prosecution was potentially so demanding as to warrant the deployment of the finest resources then available to the Attorney General.

4. The Attorney General's finest resource was Mr. Mottley himself. He had for many years been one of Her Majesty's Counsel. He had been a distinguished criminal law practitioner in his native Barbados and the Eastern Caribbean for several years, had featured prominently in many of the leading criminal trials, and had accumulated a wealth of experience in the conduct of murder cases before a jury.

5. The prosecution found itself pitted against a wily, resourceful, and battle seasoned Queen's Counsel from England who, as events were to reveal, mounted formidable attacks upon each and every aspect of the prosecution's case. In the event, the inexperienced Mr. Pearce, appearing in his first murder trial in Bermuda, though ably assisted by the courageous Ms Bacchus, was never allowed to settle into his prosecutorial stride: for as soon as the dust of the latest procedural or substantive skirmish was appearing to subside, Mr.

Perry was again harrying the prosecution with a fresh salvo from a totally unexpected quarter.

6. The Attorney General should have led the prosecution in the case against Mr. Justis Smith. His lieutenant should have been Mr. Calhoun, a veteran of many campaigns in the Criminal Division of the Supreme Court. Mr. Mottley is possessed of the intellectual capacity and resourcefulness to have overcome the flimsy obstacles that lay in the way of his appearing in person. That, according to Mr. Pearce, Mr. Calhoun succeeded in excusing himself on the ground of as yet unspecified "personal reasons'' is incomprehensible if, as a serving officer in the Attorney General's Chambers, he had received a proper order to appear. No such indiscipline and insubordination and dereliction of duty should ever again be tolerated.

7. The lesson to be learned from the debacle in the trial of Justis Smith is that the Director of Public Prosecutions must take control of and responsibility for his office and for the prosecutions conducted by it. In exercising his powers of human resource management, he must make a proper assessment of the capabilities of each of his officers: and so deploy his forces, in order to achieve the desirable objectives of successfully conducting the prosecution of all indictable cases launched by him, through a fair and thorough marshalling of all relevant evidence and the astute presentation of the relevant law for the Court's consideration and the jury's benefit.

8. When a spectacular crime such as the murder of Rebecca Middleton takes place, it attracts public attention both at home and abroad. There is a clamour for the apprehension of a suspect or suspects. Action by the Police and prosecution authorities is demanded from all sides. The media take up the chase. A kind of frenzy develops. Calls for justice rise to a fever pitch. The pressure upon the prosecution mounts from every angle.

9. But in the midst of all the hype, the prosecution must keep its nerve. It must not lose its head and charge hastily or blindly. The Captain of the Prosecution ship who is the Attorney General or the Director of Public Prosecutions, must take firm grasp of the helm. He must not launch his barque out into the deep prosecution waters unless and until his tackle is in order, and until the prosecutorial craft is amply supplied with the evidential provision to guide her safely into the haven of a conviction.

Testifying: David Middleton, father of murdered teenager Rebecca Middleton, testifies to the Commission in late August.

MURDER MUR CRIMES CRM