FNC, R. v (Rev 1)

There is before the court an appeal under s.58 of the Criminal Justice Act 2003 in respect of a terminating ruling made at the Crown Court on 5 May 2015 holding that in a prosecution case based on DNA, there was no case to answer.

At about 8.30 a.m. on 13 May 2003 the complainant was travelling to work on the London underground on a circle line train. The carriage was fairly crowded. At some point near Embankment station, she felt a man “bumping” into her from behind. She moved forward and, as she did, so did the man behind her. She moved again, but the man continued to make contact with the right side of her bottom.

The complainant felt a warm sensation through her trousers. While she was trying to work out what had happened, the train stopped and the man got out. She noticed that he was white with brown hair. It became clear to her that the person had masturbated over or against her, ejaculating his semen on to her.

She alighted and went to work. Her colleagues at work said she should report it to the police which she did the following day. She handed her trousers to the police. Tests revealed two stains. Microscopic examination of the portion of the material extracted from one of the stains confirmed the presence of semen. DNA profiling tests were carried out. No match was then found on the database, but the profile was retained.

Over 10 years later, in March 2014, the defendant, a man of middle-eastern origin with what is described as an “olive skin” appearance, was arrested on an unrelated matter. His DNA profile was taken. This was matched against the DNA database. In the opinion of Luan Lunt, a forensic scientist employed by LGC Forensics with some 12 years experience, the DNA profile obtained from the trousers matched that of the defendant. Luan Lunt expressed the view that the chance of obtaining the matching DNA profile of the semen originating from another unrelated male was in the order of one in a billion. The finding of the semen on the back of the complainant’s trousers was consistent with the defendant ejaculating on to the complainant’s trousers as alleged.

The evidence on which the prosecution was going to rely was the account of the complainant, the evidence in relation to the DNA match and the interview of the defendant. The prosecution had not adduced any evidence as to when the defendant had entered the UK, where he was living in 2003, what his employment was at the time and whether he had any brothers in the UK.

Before any evidence was given, a submission was made on behalf of the defendant that, in the light of the decisions of this court in R v Lashley, transcript 8 February 2000, R v Grant [2008] EWCA Crim 1890 and R v Ogden [2013] EWCA Crim 1294, the evidence of DNA in all the circumstances was not sufficient to give rise to a case to answer.

At the hearing before the recorder the prosecution submitted that because the statistical probability was so much higher than in the other cases, namely one in a billion, that distinguished the present case from the authorities to which we have referred.

It is clear from the judgment of the then Vice-President (Hughes LJ) in R v N Ltd [2009] 1 Cr App R 3 at paragraphs 26-28 that a court’s power to rule on a submission of no case to answer arises only at the end of the prosecution evidence. There were very limited exceptions to this. It should only be done in a case before the evidence is called where the facts are agreed or assumed and it is common ground between the parties that it would be helpful for the judge to rule. It appears to have been agreed that the recorder could so rule, on the erroneous basis that the whole of the prosecution evidence was agreed or was known with certainty. Both the prosecution and the recorder had overlooked the potential applicability of s.34 of the Criminal Justice and Public Order Act 1994. The recorder was plainly wrong in proceeding as he did, but as the prosecution consented to this course, it would not be right to allow the appeal on this ground.

In his ruling the recorder rejected the prosecution’s argument. He expressed the view that the law was still the same; no unique position had been reached in relation to DNA; DNA profiles could not provide absolute proof of identity. As there was no other evidence linking the defendant, apart from the DNA profile, that was insufficient evidence to go before the jury.

The prosecution contended that the ruling was wrong in that there was sufficient evidence. On the defendant’s behalf it was submitted that the recorder had correctly accepted that on the authorities cited to him there was no case to answer. Before turning to consider those submissions and the authorities, we must first consider a further point raised on the appeal.

The defendant was interviewed on 13 May 2014. He read out a prepared statement in which he denied sexually assaulting anyone on 13 May 2003; he said he could not say where he was at the time the offence was committed. He answered no comment to all the questions including questions, “Where were you living?”, “Were you using the London Underground?”, “Did you ever use the Circle Line?”, “Your relationship status in 2003, were you single?”

Although the prosecution did not contend that any adverse inference could be drawn at the time of submission of no case to answer, the prosecution contended on the appeal that the defendant’s failure to answer questions could be relied on for an inference of guilty knowledge.

S.34 of the Criminal Justice and Public Order Act 1994 provides:

“(1)

Where, in any proceedings against a person for an offence, evidence is given that the accused—

(a)

at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or

(b)

on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact,

being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies

(2)

Where this subsection applies—

(a)

a magistrates’ court inquiring into the offence as examining justices;

(b)

a judge, in deciding whether to grant an application made by the accused ..

(c)

the court, in determining whether there is a case to answer;

and

(d)

the court or jury, in determining whether the accused is guilty of the offence charged,

may draw such inferences from the failure as appear proper.”

In R v Webber [2004] 1 WLR 404, the House of Lords considered the scope of s.34(2)(c). In giving the opinion of the Appellate Committee, Lord Bingham, made clear at paragraph 33 that the objective of s.34 was “to bring the law back into line with common sense”. The case decided that “fact” in s.34(1)(a) should be given a broad meaning, covering any alleged fact that was in issue and was put forward as part of the case for the defence; that s.34 was potentially applicable if the defendant advanced at trial any pure fact or exculpatory explanation or account that, if true, he could reasonably have been expected to advance earlier; that a defendant relied on a fact or matter in his defence not only when he gave or adduced evidence of it, but also when a specific and positive case was put on his behalf to prosecution witnesses, as opposed to questions intended to probe or test the prosecution case.

In the course of reaching that conclusion, Lord Bingham considered s.34(2)(c). He referred at paragraph 25 to the decision of the Court of Appeal in R v Hart (unreported 23 April 1998), where the trial judge had relied on s.34(2)(c) in determining whether there was a case to answer. In holding that the judge was wrong to do so in circumstances where the defence had not put any positive case to prosecution witnesses, the court said.

“The sort of circumstances we conceive to which paragraph (c) of subsection (2) [of s.34] applies are, for example, where the defence has involved putting a positive case on behalf of the appellant, perhaps supported by documents or whatever it may be, or, a more likely example perhaps, where the defendant has chosen to refuse to answer questions when initially interviewed but some time later, after consulting his solicitor, has produced a prepared statement or has given later answers. It does not apply in circumstances such as obtained in the present case where nothing had been relied on by the defence which could bring the section into play”

Lord Bingham concluded at paragraph 34 (2):

“Since s.34 (2) (c) permits the court to draw proper inferences when determining whether there is a case to answer, the section may apply at a stage of the trial when the defendant has had no opportunity to give or adduce evidence, and when it will not be known (perhaps not even decided) whether the defendant will give or call evidence or not. But the court is likely to know, from questions put to prosecution witnesses, what (if any) positive case the defendant advances. It would be surprising if sub-section (2)(c) were intended to apply only when, unusually, specific suggestions put to a prosecution witness are accepted by the witness.”

In the present case, as the prosecution had not called any witnesses and therefore no opportunity had been afforded to see if the defendant would put a positive case, it is difficult to see how s.34(2)(c) can be of assistance given the way this case had proceeded.

Before considering the three cases relied on by the recorder, it is important to consider some of the earlier cases where the issue was considered in this court, beginning with R v Adams (No 1) [1996] 2 Cr App R 467. The sole prosecution evidence in a charge of rape against the defendant was a vaginal swab from the victim which showed the defendant’s DNA with a match probability of 1 in 200 million. The judge allowed the defence to adduce evidence in relation to Bayes theorem, but in the judgment of this court failed to direct the jury properly about it. Although the appeal was therefore allowed, Rose LJ giving the judgment of this court on 26 April 1996 said at 469-70:

“Mr Thwaites drew our attention to a number of authorities including Re J-S [1981] Fam. 22, Gordon [1995] 1 Cr.App.R. 290 and Adekunle (unreported transcript, January 26, 1993), a decision of Judge Smedley Q.C. None of these provides any support for Mr Thwaites' proposition that DNA evidence alone is incapable of proving guilt. That is unsurprising. In every case, the probative effect of a particular piece of evidence depends on its quality individually and in relation to all the other evidence. It is, in our view, wrong to describe DNA evidence generally, or the DNA evidence that was presented in this case, as no more than a rough estimate of that which it seeks to establish. ….

Any of the figures mentioned, taken on their own, are plainly very cogent evidence. However, whether the evidence of those figures is reliable in itself depends on scrutiny of the assumptions and methodology of the original calculations, which can be the subject of enquiry at trial. The extent to which such evidence survives such scrutiny sufficiently to establish guilt is, as we have said, a separate question to be assessed in the light of all the evidence in the case. There is, however, nothing inherent in the nature of DNA evidence which makes it inadmissible in itself or which justifies a special, unique rule, that evidence falling into such a category cannot found a conviction in the absence of other evidence.”

Before the appeal on the re-trial of that case was heard in this court, the well-known judgment of this court was given by Phillips LJ in Doheny and Adams on 31 July 1996, [1997] 1 Cr App R 369. At p.372 he addressed what is referred to as “the prosecutor’s fallacy”. He took as an example, a match probability of 1 in a million. On that basis there would be 26 men in the UK with the same DNA, he said:

“If no fact is known about the Defendant, other than that he was in the United Kingdom at the time of the crime the DNA evidence tells us no more than that there is a statistical probability that he was the criminal of 1 in 26.

The significance of the DNA evidence will depend critically upon what else is known about the suspect. If he has a convincing alibi at the other end of England at the time of the crime, it will appear highly improbable that he can have been responsible for the crime, despite his matching DNA profile. If, however, he was near the scene of the crime when it was committed, or has been identified as a suspect because of other evidence which suggests that he may have been responsible for the crime, the DNA evidence becomes very significant. The possibility that two of the only 26 men in the United Kingdom with the matching DNA should have been in the vicinity of the crime will seem almost incredible and a comparatively slight nexus between the defendant and the crime, independent of the DNA, is likely to suffice to present an overall picture to the jury that satisfies them of the defendant's guilt.

The reality is that, provided there is no reason to doubt either the matching data or the statistical conclusion based upon it, the random occurrence ratio deduced from the DNA evidence, when combined with sufficient additional evidence to give it significance, is highly probative. As the art of analysis progresses, it is likely to become more so, and the stage may be reached when a match will be so comprehensive that it will be possible to construct a DNA profile that is unique and which proves the guilt of the defendant without any other evidence. So far as we are aware that stage has not yet been reached.”

The appeal from the re-trial in R v Adams (which took place in September 1996) was reported as R v Adams (No 2) [1998] 1 Cr App R 377. The prosecution case at the re-trial rested solely on DNA evidence on the vaginal swab taken from the victim with a match probability of 1 in 200 million to the defendant’s DNA. The defence put in evidence of the existence of the appellant’s brother, but it was not suggested he was the assailant. The appellant was convicted and his conviction upheld. Lord Bingham CJ giving the judgment of the court said at page 383:

“It appears to us that there can be no possible ground of objection in principle to the leading of DNA evidence by the Crown, based as it is or should be on empirical statistical data, the data and the deductions drawn from it being available for the defence to criticise and challenge. The more difficult question is whether the fact that the prosecution are permitted to adduce evidence of that kind should lead to the conclusion that the defence should be at liberty to deploy evidence in support of the Bayesian approach to non-scientific, non-DNA evidence, as was done in this case.”

After considering the evidence adduced Lord Bingham concluded at page 384:

“It would seem to us that this was a case properly approached by the jury along conventional lines. That would involve them perhaps in asking themselves at the outset whether they accepted wholly or in part the DNA evidence called by the Crown. If the answer to that was “no”, or uncertainty as to whether the answer was “yes” or “no”, then that would be the end of the case. If, however, the jury concluded that they did accept the DNA evidence wholly or in part called by the Crown, then they would have to ask themselves whether they were satisfied that only X white European men in the United Kingdom would have a DNA profile matching that of the rapist who left the crime stain. It would be a matter for the jury, having heard the evidence, to give a value to X. They would then have to ask themselves whether they were satisfied that the defendant in question was one of those men. They would then go on to ask themselves whether they were satisfied that the defendant was the man who left the crime stain, bearing in mind on the facts of this case the obvious discrepancies between the victim's description of her assailant and the appearance of the appellant, the victim's failure to identify the appellant on the identification parade and the evidence of the appellant and the witnesses called by him. Consideration of this last question would of course involve the jury in assessing all the points made concerning the victim's opportunity to see her assailant, the likelihood of her description being accurate or inaccurate in all the circumstances, the significance of her failure to identify the appellant, the strength and weakness of the evidence given by the appellant and his witnesses, and all other matters relied on by the defence. Of course, it is a matter for the jury how they set about their task, and it is no part of this Court's function to prescribe the course which their deliberations should take. But consideration of this case along the lines indicated would in our judgment reflect a normal course for a properly instructed jury to adopt. It is the sort of task which juries perform every day, carefully and conscientiously, on the evidence, as they are sworn to do. We do not consider that they will be assisted in their task by reference to a very complex approach which they are unlikely to understand fully and even more unlikely to apply accurately, which we judge to be likely to confuse them and distract them from their consideration of the real questions on which they should seek to reach a unanimous conclusion. We are very clearly of opinion that in cases such as this, lacking special features absent here, expert evidence should not be admitted to induce juries to attach mathematical values to probabilities arising from non-scientific evidence adduced at the trial.”

These decisions were considered in Lashley, decided in 2000, but unreported. The sole evidence against the appellant who was convicted of robbery was DNA evidence. It was not DNA evidence deposited by the offender in the course of the commission of the offence as in Adams, but DNA obtained from an article deposited at the scene of the crime, namely a half smoked cigarette left at the scene of the robbery of a sub-post office in the Wavertree area of Liverpool. The match was not disputed, but the interpretative evidence showed that the same profile as the profile which would be obtained from 7 to 10 other males in the UK. After referring to the three decisions to which we have referred, the court (Kennedy LJ, Goldring J and Sir Charles McCullough) concluded at paragraph 14:

“… the problem which arises here, as it seems to us, is simply that here if the jury discounted the figure of seven to ten in order to allow for those who would be too young to have committed this offence and those who would be too old to have committed it, they would still be left with a nucleus figure say, for the purposes of argument, in the region of five or six. If it were possible to have placed alongside all of the five or six men in the United Kingdom who would have been in that group, what, one asks oneself, would the jury have said? How could they be sure which of them committed the offence?

This highlights the difficulty in relying on DNA evidence alone where there was absolutely no other evidence to set alongside it.”

The court added that if there was evidence to show some connection with Liverpool, the jury might well have found it compelling but there was no evidence of any kind.

In the next case considered by the recorder, Grant [2008] EWCA Crim 1890, the appellant was convicted of robbery. The prosecution case depended on DNA on a balaclava helmet which was discovered close to the premises that had been robbed, shortly after the robbery; it was a case similar to Lashley. There was evidence to show that the person who carried out the robbery had been wearing a home-made balaclava. The only other identification of the person who committed the robbery was that he had a local accent and blue eyes. The agreed evidence in relation to the DNA was that the odds of it belonging to someone unrelated to the appellant were estimated at one in one billion. However, there was on the balaclava a minor incomplete profile of at least one other person. The interview was a no comment interview. The court concluded that the judge should have acceded to a submission of no case to answer. The court (Gage LJ, Silber J and Judge Radford), without referring to any of the preceding cases, said at paragraph 13:

“The fact of the matter is that there was on the balaclava DNA material from two different people, possibly more than two different people. From that evidence, it seems to us that it was always going to be impossible for the prosecution to satisfy the jury so that they were sure, that this appellant was the man who was wearing the balaclava at the time that the robbery was committed. For instance, suppose the prosecution was able to identify that the other person whose partial DNA was on the balaclava, and he or she was arrested, it would not be possible without more to identify with certainty which of the two committed the robbery. That was a problem, or a hurdle which the prosecution always faced and, it seems to us, that that difficulty provides the answer to this appeal.”

In the next of the cases considered by the recorder, Ogden [2013] EWCA Crim 1294, the appellant was convicted of burglary. A scarf had been left in front of a smashed window. It was again a case similar to Lashley. There were two spots of blood on the scarf; one spot matched the DNA profile of the defendant with a one in a billion probability of it belonging to someone else unrelated to him. However, there was nothing to show that the burglar had cut himself on the window and the other spot of blood had not been profiled. It was not possible to date the deposit of the blood and it had been accepted that the blood could have been deposited on it by contact with someone else or by airborne droplets. The scarf had been destroyed prior to trial and the defence had been unable to test the other spot of blood. The court (Elias LJ, MacKay J and Sir Roderick Evans) concluded that in the light of the decisions in Doheny and Adams, Grant and Lashley, the judge should have acceded to the submission of no case to answer; the prosecution had agreed with that conclusion before this court.

The cases of Lashley, Grant and Ogden were, however, distinguished in R v Sampson & Kelly [2014] EWCA Crim 1968 where the DNA was directly connected to the commission of the offence. The issue related to the appeal of Kelly who had been convicted of possessing a prohibited firearm. DNA originating from two people had been found on the firearm. A full profile matching that of Kelly was found to be the major contributor. The evidence was that the probability of obtaining a matching DNA profile if the DNA came from another person unrelated to Kelly was less than one in one billion. The jury had evidence before it of primary and secondary transfer. This was the sole evidence against Kelly. The court concluded:

“By the time of Grant and Ogden, analytical techniques had advance considerably, and here the evidence was that there was one in a billion chance of the DNA matching someone else. However, the difficulty in those cases was that the expert evidence could not age the DNA. It was not possible to show that the DNA was placed on the balaclava in Grant, or on the scarf in Ogden, at the time of the offence. Once again, it is possible to see immediately why, in the absence of any other evidence, there was insufficient evidence on which a jury could convict.

However, we consider that these decisions are distinguishable. The present case differs from all of these cases in that the presence of DNA is 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. So there is a much closer connection in this case between the DNA evidence and the commission of the offence. The presence of DNA on the article, on the muzzle of a gun in this case, is capable of being evidence of possession of the article at some point before 15th August as alleged in the indictment.”

The court upheld the conviction.

Sampson and Kelly was distinguished in R v Bryon [2015] EWCA Crim 997, another case where the DNA was left on an item at the scene. The appellant was charged with theft of cash at a supermarket from what were called flight pods – plastic containers used to transmit cash through a vacuum tube from the tills to the secure cash office. A mixed DNA profile was found on tape the thief had used to maintain the vacuum over the hole which he had cut into the tube. The major portion of DNA matched the DNA of the defendant with a likelihood ratio of one in a billion. In addition to that evidence there was evidence that the defendant had a conviction for a theft carried out in exactly the same manner. In giving the judgment of the court Jackson LJ accepted the submission of counsel for the appellant that Sampson and Kelly was not relevant because of the special circumstances in that case and it should be distinguished for the purposes of considering the issues in the appeal. He concluded at paragraph 43:

“What then do the authorities establish? It is clear from the authorities that where a movable item is left at the crime scene with mixed DNA profiles, one of which matches the defendant's profile, that on its own is not sufficient to support a conviction. Indeed, the proposition may possibly be true if the DNA profile is not mixed because people can handle an object without depositing DNA, therefore even if the only DNA on an object is that of the defendant, it does not inexorably follow that no one else will have touched that object.

On the other hand, the authorities also establish that that DNA evidence in conjunction with other evidence pointing against the defendant can be very compelling - see the statement of principle by Phillips LJ in Doheny and Adams. See also the reasoning of the Court of Appeal in Darnley. ”

The court concluded that in the light of the appellant’s previous conviction, following R v Darnley [2012] EWCA Crim 1148, that the evidence of the conviction was sufficient additional evidence to uphold the conviction.

It is clear from the decision in Sampson & Kelly and the approach of Lord Bingham CJ in Adams (No 2) that where DNA is directly deposited in the course of the commission of a crime by the offender, a very high DNA match with the defendant is sufficient to raise a case for the defendant to answer. There is a clear distinction as the authorities stand, between such a case and cases such as Lashley where the DNA was deposited on an article left at the scene.

In the present case, there can be no doubt that the DNA was deposited in the course of the commission of the offence by the person who committed the offence. As the match with the defendant was one in a billion, there was accordingly a very strong case against the defendant and plainly a case for him to answer that the DNA deposited on the trousers was his. The decision of the recorder was wrong in law, the appeal must be allowed and a trial take place in the Crown Court before a Circuit Judge.

As in Adams (No 2), it will be open to the defence at the trial to call evidence that he has a brother (if indeed he has one) or adduce other evidence to show that the defendant was not in London at the time. The jury will then, as in Adams (No 2), have to consider all the evidence including the difference in description.

The decisions in Lashley, Grant and Ogden all deal with cases where the defendant’s DNA was found on articles left at the scene. Furthermore in Grant there were two profiles and the prosecution conceded that the conviction could not be sustained. In Ogden, there were plain flaws in the evidence to connect the defendant to the burglary. It must be open to question as to whether these cases were correctly decided and whether the observations in Byron were correct. As Lloyd Jones LJ made clear in giving the judgment of the court in Sampson & Kelly, it is important to bear in mind that the analysis and techniques of analysis of DNA have improved markedly in the past decade, certainly since the decision in Lashley. Thus the fact that the DNA was on an article left at the scene of the crime (as distinct from DNA being directly deposited in the course of the commission of the offence by the offender) may be sufficient to raise a case to answer where the match is in the order of one in a billion.

We would simply add a footnote should this court have to consider that issue. The approach in those cases should be contrasted with the approach taken in the facial mapping case of R v Hookway [1999] EWCA Crim 212. Five masked men had robbed a bank in Salford, Manchester. The evidence against the appellant consisted solely of expert evidence of “facial mapping”. The expert explained the process and accepted that he could not say for definite that the robber and the appellant were the same person; as he made clear, facial mapping was not the same as a fingerprint. He conceded that if a trawl was made through Manchester, it might be possible to find one or two people of similar appearance. His opinion remained that what he had seen was very powerful evidence that the appellant was the offender, although he could not prove scientifically that there was not someone else of similar appearance. The court (Rose LJ (Vice-President), Hughes J and Judge Stevens QC) concluded:

“In our judgment, there is no sustainable criticism to be made of the judge’s conclusion that there was a case for this jury to consider. The evidence from the experts did afford such evidence and, having regard to that which transpired thereafter, there could not be any ground, if there was a prima facie case for the jury, for regarding the conviction as being in any way unsafe.”

It was suggested that the reasoning in this decision was inapplicable to DNA evidence for two reasons. First, the jury had seen the CCTV images and would, therefore, be in a position to make their own assessment of the evidence; secondly, that in R v Weighman [2011] EWCA Crim 2826 (29 October 2011), the court deciding whether there was a case to answer where the only evidence was that of an expert in facial mapping on his interpretation of CCTV pictures, had been presided over by Elias LJ who two years later decided Ogden. It was submitted that the decision of the court presided over by Elias LJ in Ogden, where no mention is made of facial mapping or the decision in Hookway or Weighman, must have proceeded on the basis that the decisions on facial mapping were not relevant as otherwise the decisions on facial mapping would have been considered by the court.

Neither of these suggestions is persuasive. First, as is argued by Mr Tony Ward in a comment on Ogden [2013] Journal of Criminal Law 462, it is difficult to reconcile the approach in Hookway where there might have been two or three persons of similar appearance in Manchester alone and Lashley where the DNA might have come from 26 males in the UK. We do not see how the jury’s ability to compare the images with the defendant can make any difference when it must be accepted that there might be others who have a similar likeness. Second, it is unrealistic to suppose that the court in Ogden would have recalled a case on facial mapping decided two years before, a case which was never cited to it and never analysed by it.