George, R v

Low-level gunshot-residue findings are not automatically inadmissible or irrelevant merely because current forensic guidance attributes no standalone evidential value to such findings. Their limited and potentially innocent explanations must instead be clearly explained to the jury.

Where fresh scientific evidence materially weakens evidence capable of being treated as corroboration in an otherwise weak circumstantial case, a conviction is unsafe if that evidence might reasonably have affected the jury’s decision. The appellate court must assess the fresh evidence in the context of the whole case.

The appellant was convicted at Preston Crown Court in 2002 of murder, attempted murder and possession of a firearm. The prosecution case was circumstantial. It relied particularly on evidence linking him to the collection of the firearm, visual and voice identification evidence, and particles said to be gunshot residue on a coat found at his home.

A renewed application for leave to appeal was refused by the Court of Appeal in [2004] EWCA Crim 1471. The Criminal Cases Review Commission later referred the convictions after obtaining fresh scientific evidence concerning the significance of the residue. The appellant also sought to challenge the voice-identification evidence and the direction about it.

The central issue was whether the fresh evidence rendered the convictions unsafe.

1. Appeal allowed; convictions quashed. The court admitted the fresh expert evidence and held that it might reasonably have affected the trial jury’s decision. The convictions were therefore unsafe.

2. The current scientific caution concerning low levels of gunshot residue did not establish that the original evidence was inadmissible or irrelevant. Although only two of the particles were characteristic of gunshot residue and others were merely indicative, the evidence could still be placed before a jury. Its potential value depended on a proper explanation of the limited science, environmental sources and innocent contamination.

3. The trial judge had fairly recorded a number of innocent explanations and had left open the possibility that the particles had no significance. However, he had not differentiated between the particles or their respective value. He had treated the residue as potentially corroborative of weak visual and voice identification evidence and as support for the alleged joint enterprise. Had the modern scientific concerns been available, substantially greater caution and analysis would have been required.

4. Following the approach described in Dial and anor v State of Trinidad and Tobago [2005] UKPC 4 and Lundy v The Queen [2013] UKPC 28, the court assessed the fresh evidence against the remaining evidence rather than speculating alone about the jury. The weakness of the identification evidence, the acquittal of the co-accused despite a stronger identification, and the possible corroborative role attributed to the residue meant that the verdicts could not safely stand.

5. The court rejected the additional voice-identification grounds. It saw no reason to revisit the earlier ruling on admissibility. Although the approach was now identified in R v Flynn and St John [2008] EWCA Crim 970, the judge had required increased caution and identified the particular weaknesses in the witness’s voice recognition.

• Court of Appeal (Criminal Division): Allowed the appeal following a Criminal Cases Review Commission reference and quashed the convictions.
• Court of Appeal (Criminal Division): A full court refused the appellant’s renewed application for leave to appeal against conviction: [2004] EWCA Crim 1471.
• Crown Court at Preston: In 2002, the appellant was convicted of murder, attempted murder and possession of a firearm.