DNA Evidence Alone as a Case to Answer: Bech, R v Court of Appeal [2018] EWCA Crim 448
| Date | 01 December 2019 |
| Published date | 01 December 2019 |
| DOI | 10.1177/0022018319881826 |
| Author | Karen Richmond |
| Subject Matter | Case Notes |
Case Note
DNA Evidence Alone
as a Case to Answer
Bech, R v Court of Appeal [2018] EWCA Crim 448
Keywords
DNA evidence, transfer and persistence, no case to answer, sufficiency of evidence, dangerous
driving
In 2017, B was convicted of causing serious injury by dangerous driving. The charge related to an
incident in Formby, Merseyside, dating from April 2015. The prosecution led evidence to show that a car
had been driven dangerously at the locus, such that it crashed into another vehicle, causing serious injury
to the driver of the second vehicle. The collision caused the driver’s airbag of the first vehicle to deploy,
and jammed shut the driver’s door. An eyewitness saw three males exit the vehicle. When police
attended the scene, they found the front passenger seat pushed forward and inferred that the passengers
in the rear of the vehicle had exited via the front near side.
The central section of the airbag was swabbed, on the basis that this area might yield a DNA profile
from the driver of the vehicle. However, no other area was tested. Nor was the airbag tested for the
presence of saliva. DNA testing yielded a mixed profile, which was interpreted as comprising one major
contributor and at least three minor contributors. The DNA profile associated with the major contributor
was evaluated and was deemed to be one billion times more likely to have come from the accused than
from another individual. The three minor DNA profiles remained unidentified.
The reporting scientists considered three possible scenarios. First, that B had been driving the car at
the relevant time, thus contributing the major quantity of DNA to the mixed sample taken from the centre
of the airbag. Secondly, that B was the last person to leave the car, exiting between the front seats and
depositing his DNA, while wiping off an amount of previously deposited DNA. Lastly, that B exited
from behind the forward-tilted passenger seat. No evidence was led as to the position of the deployed
airbag.
The reporting scientists failed to conduct further tests or to provide a probabilistic analysis of the
relative likelihood of the three expository scenarios. Indeed, their report was explicit in its limitations,
cautioning that no such probabilistic determination could be made. Highlighting the fact that the experts
could not favour one scenario over another, the defence submitted a motion of no case to answer. Miss
Recorder Loram rejected this submission, citing the Court of Appeal’s guidance in R v Tsekiri [2017]
EWCA Crim 40. The Recorder noted that the defendant had offered no plausible account for the
presence of his DNA on the airbag, and that the failure to provide such an account would indicate that
the prosecution had, in fact, raised a case to answer.
Miss Recorder Loram went on to posit—in the absence of expert testimony—that the defendant
would likely have exited the car through the near side passenger door, away from the airbag (scenario
three). On this basis, she concluded that the test of a submission of a case to answer, as laid out in Rv
Galbraith (1981) 73 Cr App R 124, had been satisfied. The defendant appealed, on the ground that the
Recorder had misapplied the Tsekiri criteria when assessing the conclusion to be drawn from the mixed
DNA profile. Further, counsel for the applicant sought to distinguish Tsekiri on the facts. The Recorder’s
The Journal of Criminal Law
2019, Vol. 83(6) 503–507
ªThe Author(s) 2019
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DOI: 10.1177/0022018319881826
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