Micheala Olive & Ors & Regina

Low-level gunshot-residue evidence is not inadmissible merely because it is inconclusive in isolation. It may be considered as part of a wider circumstantial case, provided that the jury receives a careful and fair direction on its limited value.

Where innocent contamination or chance may explain the residue, the jury should disregard it if those possibilities cannot be excluded. The residue cannot alone establish participation in a shooting. Its relevance depends on the jury’s assessment of the other evidence.

A trial judge has discretion whether to give a modified good-character direction. A lies direction may properly protect a defendant against an impermissible inference of guilt. Bad-character evidence may be admitted where the defence has attacked another person’s character to advance an alternative-perpetrator case.

Micheala Olive, John Bowie and Anthony Olive were convicted of murder at Woolwich Crown Court. The prosecution alleged that Micheala Olive drove her Vauxhall Mokka to and from the shooting, carrying participants in a retaliatory attack.

The principal appeal challenged the admission, expert interpretation and jury directions concerning two low-level gunshot-residue particles recovered from the Mokka after firearms officers had attended the appellant’s home. Further grounds concerned a hospital interview, a submission of no case, jury impartiality, good character, a lies direction and bad-character evidence.

The Court of Appeal considered whether those matters rendered any conviction unsafe.

1. Appeal dismissed; renewed applications for leave to appeal refused. The convictions were safe.

2. The trial judge correctly admitted the low-level gunshot-residue evidence from the Vauxhall Mokka. The possibility that it derived from chance or contamination, including contamination associated with firearms officers, went to weight rather than admissibility. Although the expert could not determine its source, the evidence could be considered with the wider circumstantial evidence.

3. The judge’s directions were fair and adequate. He made clear that the jury should disregard the residue if they doubted the prosecution expert’s conclusions or preferred the defence expert’s contamination analysis. He also made clear that the residue proved nothing by itself and could be added to the case only if the other evidence justified that course. That approach accorded with R v George [2014] EWCA 2507 and R v Gjikokaj [2014] EWCA Crim 386.

4. The judge was entitled to admit evidence of what Micheala Olive said during the hospital conversation while excluding the signed statement. At the start of the conversation she was reasonably treated as a potential witness, not a suspect. Her account was not a confession, so section 76 of PACE did not require separate consideration. Once her proposed signed account conflicted with known ANPR evidence, she should have been cautioned; exclusion of the statement remedied that breach.

5. There was a case to answer. The evidence was capable of supporting findings that the Mokka was the vehicle used in the shooting and that Micheala Olive was its driver. The discharge of one juror did not require discharge of the whole jury. The other jurors’ assurances of impartiality could properly be accepted.

6. The judge was not obliged to give a modified good-character direction. A Lucas direction was properly given to prevent the jury treating any lie about the car’s movements as itself proving murder. The judge also properly admitted Anthony Olive’s bad-character evidence after his defence had advanced an alternative-perpetrator case by attacking the deceased’s character.

• Court of Appeal (Criminal Division): In [2022] EWCA Crim 1141, dismissed Micheala Olive’s appeal and refused the renewed applications for leave to appeal by Anthony Olive and John Bowie.
• Crown Court at Woolwich: Micheala Olive, John Bowie and Anthony Olive were convicted of murder on 8 April 2021.