It would be premature to reveal the exact details of any new evidence with which we would seek to rely on should we be given leave to appeal.
Two years after Dave was convicted for Susan's murder he received what was a literal bombshell. He managed to get hold of over 500 pages of documents that were withheld from his defence team at the original trial. Over 300 of these were pertaining to the Forensic Science Service and their DNA testing.
What we found was astonishing and we would be surprised if the case would have even come to court if all of this new evidence had been disclosed at the time.
Perhaps most telling was that at the scene of the crime the police found a bare footprint. Whilst being held in custody the police asked Dave if he would provide a non intimate sample, namely a footprint from both his bare feet. The police custody log, withheld at the trial, reads at 15:10 on 15th December "I have given authority to take a non-intimate sample, namely a footprint from DP (detained person) as I believe it will tend to confirm or disprove his involvement in this offence" This was authorized and signed by Detective Superintendent McCann.
This proves beyond any doubt whatsoever that the police had absolutely no evidence against Dave. As Superintendent McCann explicitly said, if the footprint wasn't Dave's then it would disprove his involvement. The footprint plainly wasn't Dave's yet the police wilfully withheld this vital piece of evidence, knowing full well that it proved, in DS McCann's mind, that Dave was in fact fully innocent of Susan's murder.
Police also found a couple of cigarette butts. One from Susan's bedroom and another was found on the driveway of Susan's house. Dave had never smoked and as far as anyone was aware neither did Susan. DNA tests were performed on one of them. Yet, strangely, no DNA at all was found to come from it. There were a number of blood stains on the carpet of Susan's bedroom but no DNA that matched Dave was found. Not surprisingly, DNA that matched both Susan's son and ex-husband was found along with alleles that matched none of them.
A knife was found at the crime scene which matched Dr Rouse's description of a knife that could have made the wounds. It was found to be damp on discovery. This, strangely though, was not entered into evidence, although two knives bought by DC Causer were. It is not certain to what degree this knife was tested for either fingerprints or DNA.
Upon his arrest, Dave gave the police a buccal (inner cheek) sample and an arm hair sample for his DNA reference profile to be generated. This profile was available to the police as early as 14th December. Clearly the police couldn't have found DNA matches to Dave from any of the samples found at the crime scene. This was backed up by DSupt McCann's view on the footprint.
But how could this have been? At trial, Raymond Chapman of the FSS, claimed a one billion to one match probability against the fact that the DNA on the intimate swabs was from someone other than, or related to, Dave.
What Chapman and the Crown failed to mention was that 2 sets of tests had been done. The first round of testing had been completed on the 29th November 1999, 5 days after Susan's death. These had shown very little apart from alleles that matched Susan's profile. Certainly nothing that could be attributed to Dave.
In fact, a test on the non-sperm fraction, from that run, had contained far too much DNA causing the dye to pull up in 3 distinct areas. This suggests that a quantitation step had not been performed. This would then suggest that the controversial LCN technique had been used.
Further non-disclosure cast further doubt on the integrity of the later DNA tests. It came in the form of handwritten fax messages from Mr Chapman to the police which contained his instructions for further forensic testing of evidence samples. The fears over the use of LCN were now realised when the faxes showed that on 17th December 1999, Mr Chapman called for 20ul to SGM+ and 40ul to LCN....and the same for the cuff swabs...the bed headboard was not to be subjected to LCN at least not before footprint treatments.
Mr Chapman's faxes state that he wanted the SGM+ tests available by Thursday 23rd December at the latest. Dave had by now been bailed to reappear next Monday, 20th December 1999. When he turned up at the police station he was promptly charged with Susan's murder. The DNA tests on DAR/6 & 8 that the Crown relied on in court were dated 20th December 1999!
The Crown has obviously relied heavily on controversial LCN testing that was performed 8 days after the suspects arrest and 6 days after the FSS had produced a referential profile of him from DNA samples obtained from him! But even so, how reliable is that test?
One fact that the Crown failed to disclose was that of the 20 alleles tested, Dave and Susan shared a staggering 9 alleles in common. Almost half. So, in fact, in the 2nd round of the testing of the intimate swab samples Dave's profile only matched at 40 percent of the alleles seen in the evidential profile, after Susan's profile had been subtracted. No one can say, with any degree of certainty whatsoever, that Susan's DNA was masking the DNA of Dave.
If LCN has been used then the reliability of the tests done are in severe doubt. The Reed brothers appeal in 2009 laid done certain guidelines as to the validity of the use of LCN DNA in criminal court cases. The most important of which was that all tests must have the amount of DNA quantified to show that it is at least above the stochastic threshold.
Interestingly, Mr Chapman made errors over the origin of the hair sample that was taken from Dave. At first he said it was from his head and then from his chest. It was actually from Dave's arm. Mr Chapman had come under severe criticism for his handling of hair evidence in the case of Roy Whiting.
These are serious issues that go to the heart of the case against Dave. It is clear that the police didn't have one shred of concrete evidence to charge Dave until controversial LCN testing was used. This was done after the time police had already taken a sample of Dave's DNA. What happened to the DNA sample taken home by DC Causer before he placed it in a police fridge the following morning? Whose footprint is it?
The pathologist Dr Rouse, in his evidence at court, isn't asked for a time of death. Nor is he asked whether or not he believed that the fatal neck wounds were caused by the assailant being in front of or behind Susan. Dr Rouse records in his report that scoring has occurred on Susan's left shoulder. This, he said, was definitely caused by the heel of the knife blade and showed that the blade was certainly serrated.
It would seem more likely that these heel marks would have been caused by the attacker being behind and pulling the knife around to the left shoulder area. If in front the attacker would, most likely be bringing the blade away from the neck thus not causing the scoring.
If this is true then the attacker had to be behind Susan and had to be holding the knife in their left hand. David Ferguson is right handed.
DC Baker, who gave evidence for the prosecution on the subject of CCTV, subsequently won an award for the work he did in this case.
He informed the court that on all of the routes allegedly taken by both Dave and his father that morning, in or around Chatham, the CCTV cameras were not working or didn't have cameras at all. No evidence of this was ever produced to back it up. On some routes where DC Baker said that there were no cameras it was common knowledge that there were in fact cameras. Perhaps those making DC Baker's award weren't aware of this fact. Even so, there were no sightings, on CCTV camera or otherwise, of Dave in the vicinity of Birch Grove that day at all.
Dave's lodger Paul Smith made more than a good half a dozen statements to the police. We have tried, unsuccessfully, to obtain all but the last one. Paul has made a subsequent statement for us. He makes it clear that he was literally coerced into stating that the time he woke that morning would undermine Dave's alibi. He now says that just before giving evidence he was approached by a policeman who handed him his last statement and made him read it, alone, in a side room at the court, just to refresh it in his own mind. Paul also wanted to say in court that he wasn't sure how long he went back to sleep for before finally getting up. He was now sure that it was after 11am when he heard Dave and his father making to leave. He said that the prosecution counsel would not allow him to elaborate, but to only answer yes or no.
Dave's father Ron said that he went to the Railside garage and arrived some fifteen minutes late, at 10:15. This was later corroborated by the owner of the garage, Mr David Pointer. He made a statement to Dave's legal agents in 2003.
Mr Pointer said that Mr Ferguson senior arrived at 10:15 and left some 20-25 minutes later. He also advised Mr Ferguson to go to Motune's Spares, also in Gillingham. Ronald said he went from Railside to Motune's spares shop, where he was delayed for 15 minutes and arrived at Dave's house well after 11am.
Mr Pointer said that the police came to the garage and that he had told them the same story. They then left without taking a statement. Any knowledge of Mr Pointer's evidence was, again, withheld by the police.
This evidence makes it plain that the timing of Dave's dads visit to the chemist must have been much closer to the time he said, just before midday. The clock time on the pharmacists old computer was therefore completely unreliable.
This is becoming a strangely familiar story of police non-disclosure. But it gets worse.
The Crown's two computer experts agreed that prolonged internet activity would ultimately overwrite any footprint of one's internet use. This process was termed churning. Dave's computer internet options for churning had not been changed from the default values. That meant that after 2 weeks all files from 14 days ago would be marked for deletion and the space that they occupied could then be overwritten by newer files.
The police managed to get hold of Dave's phone bill for the period from when he first got a phone line up until his arrest. Again the bill and its contents were withheld from the defence.
The BT bill shows frequent and prolonged internet activity right up until the early hours of the day of Dave's arrest on the 12th December. That would mean, if the prosecution experts are to be believed, that pretty much everything viewed on the internet prior to Susan's murder, and up to and including the 29th November, would have been overwritten. All that would be left would be nothing more than disjointed data fragments that could not be reliably interpreted.
When we speak of witness coercion we mean that the police used tactics ranging from simply not taking statements at all, through continual badgering until the statement fits the prosecution case to outright bullying to elicit bad character evidence.
Certainly the evidence of David Pointer the owner of the Railside garage was simply ignored. His timings make it impossible for Dave's father to be anywhere near the chemists shop at 11:05.
Paul Smith told us that he was interviewed on more than a dozen occasions and each successive statement was massaged to make it seem that he heard Dave and his father leave much earlier than they actually did that day.
The testimony of two friends of Dave's that were not disclosed by the prosecution didn't even appear on the undisclosed list Dave received in 2002. These were Caroline Tanton and Kim Daniels. Both were interviewed by the police. Both later reported that the police became verbally abusive when neither of them would say anything bad about Dave. Caroline went as far as to say she felt like she was being 'verbally raped' during the police interview.
We have been informed that Katriona Young required counselling after being dealt with by the police. This leads us to believe she received similar treatment as both Caroline and Kim.
Some parts of the story are just so conspicuous by their absence. One such piece is the lack of any mention of the chemist shop Dave went to that day. Both Paul Smith and John Archenoul testified that Dave was carrying a white paper chemists bag in his hand when he returned home on the afternoon that day. He was taking antibiotics and painkillers for the kidney infection.
Upon his arrest he asked for that same medicine to be brought. Dave's sister Julia distinctly remembers handing them to the desk sergeant on either the 13th or 14th December. Dave never received them and in the hands of the police they seemingly disappeared.
These drugs were the same ones he picked up that day and so would have had the dispensing chemists address and the date of dispense. So the police would have known that Dave was telling the truth about his whereabouts that morning when he said he was in Chatham.
But no chemist was ever called to rebut Dave's alibi by the prosecution. If the police didn't go to the chemists outlet then they were being extremely lax in their investigation. Of course they went to the pharmacy used by Ronald. They made much capital out of the chemists old computer and its fast clock time.
Surely the police did go to the correct chemist shop and found that Dave's alibi was corroborated. As in the case of David Pointer, this was just simply ignored. The same must apply with regard to Ron's visit to the Motune's spares shop directly after having been to Mr Pointer's garage.