R v Robert Ogden
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias |
| Judgment Date | 28 June 2013 |
| Neutral Citation | [2013] EWCA Crim 1294 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 2012/5253/C1 |
| Date | 28 June 2013 |
[2013] EWCA Crim 1294
Lord Justice Elias
Mr Justice Mackay
Sir Roderick Evans
No: 2012/5253/C1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Miss M O'Gunleye appeared on behalf of the Appellant
Mr M Hooper appeared on behalf of the Crown
On 1st August 2012 the defendant was convicted of one offence of burglary. He was sentenced by Mr Recorder Haar QC on the same day to 12 months' imprisonment suspended for two years with one requirement of a curfew for one month. He now appeals against conviction by leave of the single judge. The sole ground is that the judge wrongly rejected a half-time application for the case to be withdrawn from the jury on the grounds that there was insufficient evidence to sustain a conviction.
The prosecution case at trial comprised a number of statements and a number of highly relevant admissions made pursuant to section 10 of the Criminal Justice Act 1967. The background was this. Between 10.00 in the morning and 5.00 in the afternoon on 12th December 2011, a house was burgled at Gunner Lane, Woolwich. A number of electrical items were stolen. The burglar gained entry via a window. On the floor in front of the smashed window a scarf had been left. The scarf did not belong to either of the occupants and the only reasonable inference was that it must have belonged to the burglar.
The scarf was examined by the prosecution. There were two small areas of blood, only one of which however was tested. It was accepted that the blood matched the profile of the defendant with a one in a billion probability of it belonging to someone else unrelated to him. There were a number of admissions before the jury in relation to this forensic evidence. They included the fact that it was not possible to date the DNA. It was therefore possible that another person had carried the scarf to the scene of the burglary, the defendant's DNA already being on it. It was not possible either to say how the DNA came to be on the scarf, whether it was by direct contact with somebody or by airborne droplets. There was no independent evidence that the burglar had cut himself on the window. It was agreed that the remainder of the scarf had not been tested and nor, as we have said, was the other patch of blood.
Prior to the trial, defence counsel became aware that the scarf had in fact been accidentally destroyed and the officer in charge only found this out following a request from the defence to be allowed to test the scarf for DNA. Of course that meant that the defence was not able to follow up the possibility that there may have been the DNA of somebody else found on the scarf, or perhaps on the other blood sample.
This DNA evidence was the only evidence against the appellant. At one point it was thought that his mother might come and give evidence against him for the prosecution, but that did not happen. He in fact gave a full account in interview without the assistance of a lawyer. He said he had no idea how the DNA came to be on this scarf. He did not believe the scarf belonged to him because he did not wear scarves. He said that he had...
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