Gray, R v

Qualified or non-identification evidence may be relevant and probative where it supports other evidence, but the jury should receive a full and accurate account of the identification procedure rather than a selectively incomplete account. A standard Turnbull direction requires modification where the witness has not made an identification. The jury must be clearly told that the procedure alone cannot support conviction and that particular caution is required.

A DNA match probability is the probability of obtaining a matching profile on the stated alternative hypothesis. It is not the probability that the defendant was the source. Even if the prosecutor’s fallacy has occurred, a conviction remains safe where the random-occurrence ratio is exceptionally remote and the court is satisfied that the jury would have reached the same verdict without the error.

The appellant was convicted at the Inner London Crown Court of supplying crack cocaine and of wounding Mr Orchard with intent to cause grievous bodily harm. He received consecutive sentences of five years’ imprisonment on each count.

Mr Orchard did not identify the appellant at a video identification procedure, although he showed interest in the appellant’s image before selecting a volunteer. DNA evidence linked the appellant to bloodstaining on the victim’s jacket and to a cellophane wrap. The appellant appealed against conviction, challenging the admission and summing-up of the identification evidence and the treatment of the DNA evidence.

The central issues were whether the non-identification evidence was unfairly admitted or presented, and whether references to the DNA probabilities and omissions in the summing-up rendered the convictions unsafe.

1. Appeal dismissed. The convictions were safe.

2. The judge correctly admitted the video of the identification procedure. The guidance in Barry Michael George [2002] EWCA Crim. 1923 was of general application. A qualified identification may be probative when it supports other evidence. Since the defence wished the jury to know that Mr Orchard had failed to identify the appellant, it was proper for the jury also to see the full procedure. A bald account would have been incomplete and potentially misleading.

3. An unmodified Turnbull direction was inapt because there had been no identification, and the standard direction should have been modified. Nevertheless, the summing-up did not elevate the non-identification into an identification. The judge twice made clear that Mr Orchard had not identified the appellant, that the procedure could not alone support conviction, and that the jury had to exercise particular caution. There was no material omission concerning the appellant’s distinctive features.

4. The references to missed appointments for the appellant’s image did not create material unfairness. The judge also reminded the jury of the appellant’s explanations for non-attendance.

5. The prosecutor’s fallacy confuses the probability of a matching DNA profile under an alternative-source hypothesis with the probability that the defendant was the source. Some wording in the evidence, interview and summing-up was capable of that error. Even assuming shortcomings, they did not make the convictions unsafe. The random-occurrence ratio for the jacket sample was approximately one in 81 million. The court was satisfied that the jury would have convicted without any fallacious presentation, notwithstanding the possibility of accidental transfer. The separate DNA trace on the wrap, the absence of an explanation, and other evidence further strengthened the case.

• Court of Appeal (Criminal Division) — dismissed the appellant’s appeal against conviction.
• Inner London Crown Court — on 27 October 2004, convicted the appellant of supplying a class A controlled drug and wounding with intent to cause grievous bodily harm; consecutive five-year sentences were imposed.