R v George
| Jurisdiction | England & Wales |
| Judgment Date | 15 November 2007 |
| Neutral Citation | [2007] EWCA Crim 2722 |
| Docket Number | Case No: 200703209B5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 15 November 2007 |
[2007] EWCA Crim 2722
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
The Honourable Mr Justice Gage
Royal Courts of Justice
Strand, London, WC2A 2LL
the Lord Chief Justice of England and Wales
the Right Honourable Lord Justice Leveson and
the Honourable Mr Justice Simon
Case No: 200703209B5
Mr Orlando Pownall and Mr Jonathan Laidlaw for the Respondent
Mr William Clegg QC, Mr Jeffrey Samuels and Ms Alice Jarratt for the Appellant
Hearing dates: 5, 6, 7 November 2007
Judgement
Lord Phillips of Worth Matravers CJ:
Introduction
At about 11.30 am on 26 April 1999, Miss Jill Dando, the well-known television presenter, was shot and killed as she was about to enter her home at 29 Gowan Avenue, in Fulham. Her death was caused by a single shot to the head.
Forensic examination showed that a firearm had been pressed to her head when her assailant discharged the weapon. The bullet which caused the fatal injury and a 9mm cartridge case were recovered from the crime scene. Among the other findings by forensic scientists was firearm discharge residue (FDR) in the cartridge case and in the victim's hair. The nature of the FDR was Percussion Primer Cap residue which does not degrade with time.
Barry George was one of a number of men who came to the attention of the police in the course of their subsequent investigation. On 17 April 2000 his flat was searched; and a Cecil Gee coat was found hanging on the kitchen door, which Barry George admitted was his. The coat was later subjected to forensic examination by a Senior Forensic Science Officer, Mr Robin Keeley, who discovered a single particle (11.5 microns or the equivalent of about one hundredth of a millimetre) of FDR in the internal right pocket of the coat. The particle matched the constituent elements of FDR found in the cartridge case and on the victim's hair.
In the meantime, on 25 May 2000, Barry George had been arrested for the murder; and had been charged on 29 May.
At trial the Prosecution relied primarily on four categories of evidence. First, there was evidence which identified Barry George as being at the scene of the murder some four hours before it was committed and other evidence which, although not leading to a positive identification, was said to demonstrate such features of similarity to the positive identification as justified the conclusion that he was present at about the time it was committed. Secondly, the Prosecution characterised his interview as containing repeated lies, in particular, as to his knowledge of and interest in Miss Dando. Third, it was alleged that he had made considerable attempts to create a false alibi for the time of the shooting. Finally, the Crown relied on the similarity of the FDR found at the scene of the crime within Miss Dando's wound and the single particle of FDR in the pocket of Barry George's coat.
In his interview Barry George admitted owning the coat, and that only he used it. He could not recall whether or not he was wearing it on 26 April 1999.
The trial began on 23 April 2001 at the Central Criminal Court before Mr Justice Gage and a Jury. It is unnecessary to rehearse the detail of the case other than that which relates to the FDR. Among the witnesses called were a number of forensic scientists who gave evidence about the FDR findings and their significance. Mr Keeley and Dr Renshaw gave evidence for the Prosecution, and Dr Lloyd gave evidence for the Defence; their evidence (and the related factual evidence) occupied many days of the trial.
On 2 July 2001, after deliberating for almost 32 hours, Barry George was convicted by a majority of 10:1 of the murder of Jill Dando, and was sentenced to life imprisonment.
He appealed against his conviction; and on 29 July 2002 his appeal was dismissed by another constitution of this Court. The appeal related primarily to the identification issue. The Court concluded that this evidence was properly admitted and was properly left to the jury for its consideration (see §74 of the Judgment of the Court).
In the course of the Judgment the Court considered the FDR evidence:
“94. Mr Keeley's opinion was that the fact that only one particle of FDR was found was not significant. This was not an unusual situation. In Mr Keeley's experience CAP residue would more often that not be found on the firer of the gun, but would not be found on ordinary members of the public unless they had been associated with firearms. His evidence was that the [10.5] micron particle was consistent with having come from the cartridge used in the killing. Dr Renshaw, equally well-qualified, reviewed Mr Keeley's findings and agreed with them.
95. The jury had also to consider Dr Lloyd's evidence … that the particle was so small that to rely on it, one year after the killing, was 'incredible'. Its size 'cast doubts on where it came from'—it could be the result of casual contamination. However, the main part of his evidence was directed to the places where innocent contamination of [the coat] could have taken place. Dr Lloyd was of the view that the police procedures had been flawed and contamination could have occurred at any stage, even before the events surrounding the victim's death …”
The Court concluded that the FDR evidence was capable of supporting the Prosecution case; and that its weight was a matter for the jury.
On 5 November 2002 the Criminal Cases Review Commission received submissions made on Barry George's behalf. After a full and thorough investigation the Commission decided, on 19 May 2007, to refer the conviction to this Court under s.9 of the Criminal Appeal Act 1995 on the following ground:
“New evidence calls into question the firearms discharge evidence at trial and the significance apparently attached to that evidence.”
The single ground of appeal advanced before us is that the evidence in relation to the discovery of the particle of FDR in the pocket of the appellant's overcoat, which was relied on by the prosecution at the trial as of great significance, was, in reality, of no probative value. We gave permission for fresh evidence to be adduced before us in support of this ground and for the Crown to adduce additional evidence in challenging it.
This is the course that we now propose to follow:
i) We shall summarise the fresh evidence that has been placed before us.
ii) We shall consider whether it is in conflict with the case advanced by the prosecution at the trial. If it is:
iii) We shall consider whether, having regard to the fresh evidence, the verdict is safe.
The fresh evidence.
The most significant evidence that we have received owes its origin to the initiative of Dr Ian Evett, who from 1996 to 2002 worked for the Forensic Science Service ('FSS'). His role there included assisting scientists to present evidence to the court in a manner that was logical, transparent and robust. Part of the technique that he advocated involved analysing the evidence by reference to the extent to which it supported one or other of two rival propositions. Typically one proposition would be that an event that formed part of the prosecution case occurred and the rival proposition would be that this event did not occur.
While the appellant's trial was in progress, at about the time that Mr Keeley was giving evidence for the prosecution, Dr Evett discussed the FDR evidence in casual conversation with a colleague. He was led to understand that the effect of the evidence was 'neutral' – that is that it lent no positive support to the proposition that the appellant fired the gun that killed Miss Dando. The newspaper reports of the trial suggested, however, that undue weight was being attributed to that evidence, causing him to experience 'vague unease'. He discussed this with his line manager, who suggested that the best course would be for him to discuss the matter with Mr Keeley, whom he knew well, at a suitable opportunity.
Dr Evett and Mr Keeley met on 19 November 2001. At that time Dr Evett was in the course of developing with colleagues, who did not include Mr Keeley, a technique called Case Assessment and Interpretation (CAI). The object of this is to clarify before evidence is examined and analysed the likelihood of the examination achieving particular results on two different hypotheses or propositions. This technique facilitates the drawing of appropriate conclusions from the results actually obtained on the examination.
At his invitation and with his assistance Mr Keeley applied this technique to the likelihood of different findings that he might have made on, as we understand it, carrying out the examination of the pocket of the appellant's coat that he in fact conducted. His conclusions related to two different propositions: (1) that the appellant was the man who shot Jill Dando; (2) that the appellant was not the man who shot Jill Dando. Mr Keeley estimated that the likelihood of his finding no FDR particle had been 99 in 100 on either proposition, the likelihood of his finding one or a few particles as 1 in 100 on either proposition and the likelihood of his finding lots of particles as 1 in 10,000 (these figures being intended simply to signify 'remote in the extreme') on either proposition.
The significance of this was that, in Mr Keeley's opinion, the finding that he in fact made of a single particle had been 'neutral'. It was no more likely to have come from the gun that killed Miss Dando than from some extraneous source. Mr Keeley confirmed to Dr Evett that he did indeed...
To continue reading
Request your trial
-
R Ismail Ali, Ian Lawless, Barry George, Kevin Dennis, Justin Tunbridge v Secretary of State for Justice
...evidence at trial and the significance apparently attached to that evidence. It was this referral which led to the second appeal, see: R—v—Barry George [2007] EWCA Crim 2722. 147 The second appeal heard the evidence now said to bear on the FDR issue. It is not necessary for us to repeat the......
-
R Paul Cleeland v Criminal Cases Review Commission
...by Mr Gibbs's evidence. 67 We accept that the science of FDR analysis has developed very considerably since 1973, see for example, R v. George (Barry) [2007] EWCA Crim 2722. However, this aspect of the evidence was not at the forefront of the prosecution case at trial; and it was considere......
-
The Queen (on the application of Paul Cleeland) v Criminal Cases Review Commission
...evidence about the finding of lead should therefore have been regarded as inadmissible. As authority for that submission he relies on R v Barry George [2007] EWCA Crim 2722. In that case, a conviction was quashed after the Court of Appeal had heard fresh evidence relating to the reliability......
-
Dwaine Simeon George v The Queen
...and, in the light of new scientific evidence as to the significance of particles said to be gunshot residue which is reflected in R v George (Barry) [2007] EWCA Crim 2722, and a recent decision in relation to voice recognition evidence, R v Flynn and St John [2008] EWCA Crim 970, a further ......
-
Table of Cases
...General Electric Co. v. Joiner, 522 U.S. 136 (1997).......................................................... 27–28, 31 George v. R., [2007] EWCA Crim 2722 ...................................................................................... 125 Gersten v. Senkowski, 426 F.3d 588; 2005 U.S......
-
Table of Cases
...1 All E.R. 1 ............................................................................................ 18, 253 George v. R., [2007] EWCA Crim 2722 .................................................................. 210 –11 Gipp v. he Queen, [1998] HCA 21 ........................................
-
‘A new and more rigorous approach’ to expert evidence in England and Wales?
...1 WLR 1134.42. [2010] 1 Cr App 8 at [9].43. RvTurner [1975] QB 834.44. RvRandall [2003] UKHL 69; [2004] 1 WLR 56 at [20].45. Ibid.46. [2007] EWCA Crim 2722.Ward fired and could only have acquired the particle by contamination. Strictly speaking, this was enough tomake the evidence logically......
-
The Reliability of Expert Evidence: Reflections on the Law Commission's Proposals for Reform
...Disagreement’ (1997) 30UC Davis L Rev 1027. 2 [2003] EWCA Crim 1020. See also Rv Cannings [2004] 1 WLR 2607.3Rv George (No. 2) [2007] EWCA Crim 2722.488 The Journal of Criminal Law (2009) 73 JCL ruptures rather than a systematic irretrievable breakdown.4Neverthe-less, the gathering, analysi......