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DNA – INDISPUTABLE EVIDENCE OF GUILT?

The Grant and Ogden line of authority considered.

In the mind of many prosecutors, the presence of a defendant’s DNA profile at the scene of a crime is indisputable evidence of their guilt. Indeed to many laypeople, TV shows such as “CSI” and “Silent Witness”, have elevated the significance of DNA evidence to a state of near-infallibility. However, the Court of Appeal has adopted a far more cautious approach in a line of authority where DNA evidence represented the only, or only significant, evidence against a defendant.

In R v Grant [2008] EWCA Crim 1890, the appellant (G) appealed against his conviction for armed robbery. The issue at trial was identification. The robber had been wearing a balaclava which was later found in an alleyway behind the attacked premises. Forensic analysis revealed a complete DNA profile which matched the DNA profile of G. The odds of the profile belonging to someone other than G were estimated at one in one billion. A minor incomplete profile of at least one other person was also found. It was not possible to say which DNA deposit was made first nor was it possible to say how or when the deposits were made. At the close of the prosecution’s case it was submitted that there was no case to answer and that the trial should be stopped. That application was rejected.

The Court of Appeal held that given the presence of DNA material from at least two different people it was always going to be impossible for the prosecution satisfy the jury to the criminal standard that G was the man wearing the balaclava at the time that the robbery was committed. The Court reached that conclusion notwithstanding the fact that G had declined to answer any questions asked of him in interview. G’s conviction was quashed.

The Court of Appeal adopted a similar approach in R v Ogden [2013] EWCA 1294. The appellant (O) appealed against his conviction for burglary. Entry had been via a window that was smashed, and in front of it a scarf had been left that did not belong to the occupants. It was accepted that the DNA profile derived from a small area of blood on the scarf matched O’s, with a one in one billion probability of it’s belonging to someone unrelated to him. The DNA could not be dated, so it was possible that another person had carried the scarf to the scene with O’s DNA already on it. It was not possible to say how the DNA came to be on the scarf and there was no independent evidence that the burglar had cut himself on the window. The DNA evidence was the only evidence against O. He had given a full account in interview without a lawyer and said that he had no idea how his DNA came to be there, that he did not wear scarves and that he had been at home at the time. He did not give evidence at the trial. A submission of no case to answer on the ground that there was insufficient evidence to convict in the absence of any other circumstantial evidence was refused. The judge said that the presence of O’s blood required an explanation and that a jury would be entitled to convict O.

The Court of Appeal, following Grant and applying R v Lashley [2000] EWCA Crim. 88 and R v Doheny [1997] 1 Cr.App.R. 369, held that where the sole evidence against a defendant was DNA evidence there was no case that could properly be left to the jury. The significance of the DNA evidence depended critically on what else was known about the defendant. Thus, in an appropriate case the additional evidence needed could be very limited, but there had to be some independent evidence establishing a nexus between the defendant and the crime. O’s conviction was quashed.

 

In R v Darnley [2012] EWCA Crim 1148, the Court of Appeal appeared to restrict that approach to DNA cases. The appellant (D) appealed against his conviction for burglary. A handkerchief containing at least three people’s DNA had been found at the burgled premises. The major profile matched D; the minor components matched two unknown persons. D had 21 previous convictions for domestic burglary. He tested positive for drugs when arrested. The prosecution case was that D’s DNA on the handkerchief, together with his previous convictions, which demonstrated propensity, and his admitted relapse into drug use, which provided a possible motive, led to the conclusion that he had committed the burglary. D was a hairdresser. He stated that he had worked on the evening in question and had then gone to a narcotics anonymous meeting. He said that he used handkerchiefs for his work but did not know how the handkerchief came to be at the burgled premises. He named a possible suspect in interview, but not when giving evidence. The prosecution successfully applied to adduce evidence of D’s previous convictions under the Criminal Justice Act 2003 s.101(1)(d). The judge refused D’s submission of no case to answer, on the basis of the strength of the circumstantial evidence.

The Court of Appeal held that the previous convictions had been properly admitted. The principle that bad character could be adduced to test an innocent explanation was relevant. It was important evidence relating to an issue in dispute between the prosecution and defence, namely whether the explanation D had given as to why the handkerchief had been found at the premises was truthful. The explanation was more likely to be true if D had no convictions for burglary, and the jury was entitled to be told of them. The evidence was not therefore admitted on the simple assumption that because D had regularly committed burglaries in the past he had to have committed the instant one, but rather because whoever was the burglar left the handkerchief at the scene. D’s explanation as to why his DNA was found on the handkerchief was, on the face of it, surprising, and the bad character evidence helped the jury test that explanation. Further, while the prosecution case would have been weaker without the bad character evidence, there was enough to go before the jury and the bad character evidence could have been admitted on the basis of propensity. Evidence which identified D as one of three possible people who could have committed the crime was properly described as very strong evidence, even if not conclusive on its own.

In relation to the submission of no case to answer, applying the traditional test, and once the bad character evidence was admitted there had been a powerful case to go before the jury. In addition to the DNA evidence, D lived near the scene of the crime and admitted that he knew the particular road. He had given inconsistent explanations in interview for his DNA being on the handkerchief and had also said that he was short of money. Those were potentially relevant factors which, taken together, provided ample evidence to put before the jury.

 

The Court of Appeal’s approach in Darnley, is somewhat counterintuitive. The only significant evidence against D was the DNA profile on the handkerchief, which also contained the DNA profiles of at least two unknown individuals. Applying Ogden and Grant, that evidence would be insufficient to satisfy the jury, to the criminal standard, that D rather than say the other two individuals, was the burglar. The supporting evidence identified by the Court is equally questionable: the fact that D lived near to the scene of the crime and knew the road where the attacked premises were situated is irrelevant. If he had lived in another part of town and did not know the relevant street, then surely the presence of his DNA profile would be far more suspicious than if he had some innocent connection with the general location of the crime? Furthermore, the so-called motive is somewhat tenuous given that, without more, it would apply to the vast majority of defendants before the Crown Court. The prosecution case was therefore rather weak. Taking into account one of the most oft-quoted principles of R v Hanson [2005] 2 Cr.App.R. 21, namely that bad character should not be used to bolster a weak case, it is surprising that the Court of Appeal upheld the trial judge’s decision to allow the convictions to be admitted. The overall effect of the Court of Appeal’s approach in Darnley will be to embolden prosecutors to oppose applications to dismiss or submissions of no case to answer in cases where DNA evidence represents the only, or only significant, evidence against a defendant, on the basis that a defendant’s bad character can seemingly be relied upon to neutralize those otherwise fatal weaknesses.

 

Finally, in R v Sampson and Kelly [2014] EWCA Crim 1968, the appellant (K) was charged with possession of a prohibited firearm.  A DNA profile matching K’s was found on the muzzle of the firearm together with a partial profile relating to another person. A submission of no case to answer was unsuccessful and K was ultimately convicted.  In dismissing the appeal, the Court of Appeal distinguished the Grant and Ogden line of authority, on the basis that in K’s case the presence of DNA was not relied on as evidence of the presence of the defendant at a particular place at a particular time: rather, the essence of the offence is possession of the article. Consequently there was a much closer connection in K’s case between the DNA evidence and the commission of the offence. The Court reasoned that the presence of DNA on the article, on the muzzle of a gun in his case, was capable of being evidence of possession of the article at some point before the date alleged in the indictment.

 

What can we take from the Grant and Ogden line of authority?

First, defence teams must identify those cases where DNA evidence represents the only, or only significant, evidence against a defendant, and apply to have the charges against their clients dismissed. Of course not every case will attract such an application, for example if the DNA profile was obtained in a burglary case from material left on the point of entry itself. However, it is important to understand that Crown Court judges are receptive to these applications. In R v JC and others (Leeds Crown Court, May 2014), I made an application to dismiss in a multi-handed conspiracy to commit violent disorder, where the evidence against JC was limited to a DNA profile from a single individual on a discarded hat found at the scene which matched that of JC, together with possession of a mobile telephone belonging to a co-conspirator. The application was successful and when the prosecution attempted to resurrect the case through the voluntary bill of indictment procedure, the Presiding Judge of the North Eastern Circuit, Globe J, upheld the trial judge’s ruling. Similarly, in R v IS and others (Leeds Crown Court, February 2015), my colleague, Ben Campbell, made a successful application to dismiss in a case where the evidence was limited to the presence of IS’ DNA recovered on a cigarette butt discarded at the scene of the crime together with evidence of association with his co-accused.

Second, although on the face of the Court of Appeal’s judgment in Darnley, the bad character of the defendant could be said to be fatal to any such application to dismiss, the judgment can be distinguished. In both of the above examples, the defendants had previous convictions for like offences. The trial judges accepted the criticism of the Court of Appeal’s approach in Darnley and were persuaded to distinguish that case on the basis of the sheer number of relevant convictions that D possessed.

Third, whether an argument based on the Ogden and Grant line of authority can be mounted is dependant upon the type of offence the defendant is charged with. If the essence of the offence is possession of the article on which the DNA is found, then such an argument will surely flounder. In such cases the defence will undoubtedly rest upon the explanation advanced by the defendant and/or the possibility of secondary transfer.

 

Adam Birkby                                                                 

New Park Court Chambers

 

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