DNA Profiling and Sufficiency of Evidence
| Author | Tony Ward |
| Date | 01 December 2013 |
| Published date | 01 December 2013 |
| DOI | 10.1350/jcla.2013.77.6.871 |
| Subject Matter | Court of Appeal |
Court of Appeal
DNA Profiling and Sufficiency of Evidence
R vOgden (Robert) [2013] EWCA Crim 1294
Keywords DNA; Expert evidence; No case to answer
The appellant, O, appealed against his conviction for burglary. A house
had been entered through a broken window and a number of electrical
items stolen. A scarf was found which did not belong to the house-
holders and was assumed to have been left by the burglar. On the scarf
were two small areas of blood. One of these was tested and found to
contain DNA which matched O’s, with a random match probability of
one in a billion. It was not possible to date the blood, nor to say whether
it had been deposited on the scarf by direct contact or from an airborne
droplet. The second small area of blood was not tested.
When O was interviewed by the police, he denied that the scarf was
his and said he had been at home at the time of the burglary and had no
idea how is DNA came to be on the scarf. When the defence requested
permission to carry out tests on the scarf they were told that it had been
accidentally destroyed.
The DNA evidence was the only evidence against O at trial. The
prosecution had expected to be able to call the defendant’s mother to
give evidence against him, but in the event they did not do so.
At the close of the prosecution case a submission of no case to answer
was rejected by the judge. He said:
It seems to me that the discovery of that scarf in the burgled premises with
Mr Ogden’s blood on it does in practical terms call for an explanation.
Certainly a jury, if no further evidence is given, would be entitled to reach
a verdict of guilty. Maybe some juries would, some juries would not but
that is entirely within the domain of the jury and so the application is
dismissed. (at [7])
O did not give evidence. He appealed against conviction on the ground
that the judge had been wrong to reject the submission of no case to
answer.
H
ELD
,
ALLOWING THE APPEAL
, in the light of R v Lashley [2000] EWCA
Crim 88 and Rv Grant [2008] EWCA Crim 1890, there was no doubt
that the judge had been wrong not to accede to the submission of no
case to answer. Lashley established that where the prosecution case
relied on DNA evidence found at the scene of the crime, there must be
some independent evidence establishing a nexus between the defendant
and the crime, although in an appropriate case the additional evidence
need only be very limited, for example that the defendant lived in the
area where the crime occurred. The facts in Grant (which was not
brought to the judge’s attention) were very similar to those of the
present case, involving DNA on a balaclava found at the scene of the
robbery. In light of this the prosecution did not contest that the judge
should have accepted the submission of no case to answer.
462 The Journal of Criminal Law (2013) 77 JCL 462–475
doi:10.1350/jcla.2013.77.6.871
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