George v R

Where fresh expert evidence shows that forensic evidence presented as supporting the prosecution was in fact neutral, the appellate court must assess whether the corrected evidence might reasonably have affected the jury’s decision. If it might, the conviction is unsafe and must be quashed.

A single particle of firearms discharge residue found long after an alleged shooting has no probative value if it is equally likely to have come from an extraneous source as from a gun fired by the accused. A jury must not be invited to treat the exclusion of particular innocent routes of contamination as proving the remaining incriminating route where the underlying evidence is neutral.

Barry George was convicted of the murder of Jill Dando at the Central Criminal Court before Gage J. The prosecution relied on identification evidence, alleged lies and a false alibi, and a single particle of firearms discharge residue found in the appellant’s coat about a year after the shooting.

A previous appeal against the conviction had been dismissed. The Criminal Cases Review Commission later referred the conviction under section 9 of the Criminal Appeal Act 1995 after new evidence questioned the significance of the firearms evidence. The sole issue was whether that evidence was in truth incapable of supporting the prosecution case and, if so, whether the conviction was safe.

1. Appeal allowed. The conviction was unsafe and was quashed.

2. The fresh evidence from the forensic scientists established that a single particle of firearms discharge residue in the appellant’s coat was equally likely to have come from an extraneous source as from a gun fired by him nearly a year earlier. The finding was therefore neutral and gave no support to either proposition.

3. Although evidence which is neutral in isolation may acquire relevance when considered with other evidence, its permissible use must be explained with particular care. At trial, the prosecution evidence, submissions and summing up had conveyed that innocent contamination was unlikely and that the particle therefore supported guilt. That presentation did not explain that a particle from a gun fired by the appellant was equally unlikely to have remained and been found. The jury were thereby misled as to its significance.

4. Applying R v Pendleton [2001] UKHL 66, the proper question was whether the fresh evidence might reasonably have affected the jury’s decision. The firearms evidence had been treated at trial as an important strand of the prosecution case. It was impossible to know what weight the jury gave it or what verdict they would have reached if told that it was entirely inconclusive. The corrected evidence might reasonably have affected the verdict.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, allowed the appeal and quashed the conviction as unsafe.
• Court of Appeal (Criminal Division): A previous appeal against the conviction was dismissed on 29 July 2002.
• Central Criminal Court: Barry George was convicted of murder by a majority verdict on 2 July 2001 and sentenced to life imprisonment.