The Forbidden Chains of Probabilistic Reasoning

Published date01 April 2023
DOIhttp://doi.org/10.1177/00220183231156054
AuthorKyriakos N. Kotsoglou
Date01 April 2023
Subject MatterCase Notes
The Forbidden Chains of
Probabilistic Reasoning
R v Ben Belhaj-Farhat [2022] EWCA Crim 115
Keywords
Bad character, propensity, DNA evidence, prosecutors fallacy, individualisation
On 23rd July 2020, a burglary took place at a f‌lat in West London. That f‌lat was located on the third
f‌loor of a residential block. At the time of the burglary, the building was surrounded by scaffolding.
The occupiers had previously been asked by the site manager to leave the windows to their
f‌lat unlocked as the builder would be on-site and would require access. The f‌lat in question was occu-
pied by three people. The last of the three occupiers of the f‌lat left the property at about 2.30 pm,
leaving it empty. When she returned at about 3.15 pm, she discovered that the f‌lat had been
burgled. Items were missing from the f‌lat, and she found a cigarette roll-up propped up against a
frame on the front door inside the f‌lat. This was handed to a scene of crime off‌icer. All three occu-
pants of the f‌lat conf‌irmed that it was not their cigarette. Upon forensic examination, the cigarette
roll-up was found to contain the appellantsDNA(at [6]).
The prosecution case was that the presence of the cigarette butt containing the appellants DNA
meant that the appellant was the burglar. The evidence adduced in support of this case was: f‌irst,
agreed evidence in respect of the cigarette and DNA; secondly, bad character evidence admitted by
the judge on a contested application that went to propensity; and thirdly, adverse inferences from a
failure by the appellant to answer questions in interview.
The defence case was that there were too many uncertainties surrounding how the cigarette butt may have
got into the premises. The counsel for the appellant submitted that a DNA prof‌ile on such a readily moveable
object as a cigarette at the crime scene was of insuff‌icient probative value to establish a case to answer when
the premises had been left insecure, builders had had access, and the scaffolding alarm had not been activated.
Although it was acknowledged that there was a very strong inference that the cigarette had been dropped
during the burglary, and given the DNA match and that therefore the jury could be sure that the DNA on
the cigarette came from the appellant, there was no other evidence to link the appellant to the offence.
The Crown Court judgegave two rulings on the subject matter. The f‌irst ruling wason 2nd June 2021 in
relation to the application by the prosecution to adduce evidence of the appellantsprevious convictions for
burglary and theft in 2014, 2017 and 2019. The prosecution sought to use the gateway under section
101(1)(d) of the Criminal Justice Act 2003, namely that it was relevant to an important matter in issue
between the defendant and the prosecution. In her ruling, the judge ruled that the presence of the cigarette
butt left at the scene, containing the appellants DNA, was strong evidence against the appellant(at [10]).
This was not a case where the Crownwere seeking to rely on weak evidence by bolsteringit with adducing
evidence of the appellants previousconvictions. The second ruling,on 3rd June 2021, was on a submission
of no case to answermade on behalf of the appellant. The defence had relied upon the second limb of
Galbraith, namelythat the evidence relied on by the prosecution was so tenuousin nature that a jury prop-
erly directed could not convict upon it. The judge ruled that there was a case to answer (on count 2).
The appellant was convicted of one count of burglary, pursuant to section 9(1)(b) of the Theft Act
1968 (count 2 on the indictment). He was acquitted of another count of attempted burglary (count 1).
On 15th July 2021 he was sentenced to a term of three yearsimprisonment for the offence on count
Case Note
The Journal of Criminal Law
2023, Vol. 87(2) 140144
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183231156054
journals.sagepub.com/home/clj

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