Boreman & Ors, R v

On an appeal based on fresh expert evidence, the court must ask whether a jury which knew that evidence might reasonably have reached a different verdict. The court must respect the jury’s primary role in resolving factual issues and must not substitute its own assessment of disputed facts.

A conviction is unsafe where fresh credible evidence shows that prosecution expert evidence on an essential issue was fundamentally flawed, and that flaw might reasonably have affected the jury’s verdict. A jury should also be directed to decide the case on a factual basis which the evidence can properly support.

The appellants were convicted of the murder of John Reid after a retrial at the Central Criminal Court in September 1998. Their earlier murder convictions had been quashed in March 1998 and a retrial ordered. A later appeal was rejected.

Following a reference by the Criminal Cases Review Commission, the appellants relied on fresh pathology evidence concerning causation. The Crown accepted that there was insufficient evidence that the appellants deliberately started the fire, and that much of the trial evidence of Dr Heath was fundamentally flawed. The central issue was whether the fresh evidence might reasonably have affected the jury’s verdicts.

1. The appeals against the murder convictions were allowed. The court substituted convictions for causing grievous bodily harm with intent, contrary to Offences against the Person Act 1861, section 18.

2. The Crown correctly conceded that the jury could not properly have been sure that the fire had been deliberately set by any appellant. To assist the jury, the trial judge should have directed it to determine the case on the basis that the fire was not deliberately set by an appellant.

3. The decisive matter was the fresh pathology evidence. Dr Clark’s evidence supported the view that fire and smoke inhalation were the principal cause of death. The fractured ribs could have contributed by impairing the deceased’s breathing and ability to escape, but the injuries were not independently life-threatening. The fresh evidence did not support Dr Heath’s evidence that the deceased was unconscious, drowning in his own blood, or suffering a collapsed lung.

4. The jury had been invited to assess causation on materially flawed expert evidence. Although a jury could properly have convicted on Dr Clark’s evidence, the court could not conclude that the original jury would necessarily have done so had it known the true position.

5. Applying R v Pendleton [2002] 1.Cr.App.R 34, the court did not resolve the factual issue itself. It asked whether knowledge of the fresh evidence might reasonably have affected the verdict. It plainly might have done so, rendering the murder convictions unsafe. No retrial was sought. Each appellant received eight years’ imprisonment for the substituted offence.

• Court of Appeal (Criminal Division): On a Criminal Cases Review Commission reference, the court allowed the appeals against the murder convictions, substituted convictions under section 18 of the Offences against the Person Act 1861, and imposed sentences of eight years’ imprisonment.

• Central Criminal Court: Following a 16-day retrial before HHJ Machin QC, the appellants were convicted of murder on 29 September 1998.

• Court of Appeal (Criminal Division): The appellants’ first murder convictions, entered in April 1997, were quashed in March 1998 and a retrial was ordered.