Grant, R v

Where DNA evidence shows that more than one person contributed material to an item linked to an offence, and it cannot establish when or how the respective deposits were made, a matching complete profile alone may be insufficient to prove that the defendant used the item during the offence. If the prosecution evidence cannot enable a jury to be sure of identity, the judge should uphold a submission of no case to answer.

The appellant was convicted at Liverpool Crown Court of robbery and possessing a firearm while committing that offence. The sole issue at trial was the robber’s identity.

A homemade balaclava recovered near the scene contained a complete DNA profile matching the appellant and an incomplete profile from at least one other person. The experts agreed that they could not determine how or when either profile had been deposited, or whether either contributor wore the balaclava during the robbery.

The trial judge rejected a submission of no case to answer at the close of the prosecution case. The appellant appealed against conviction on the ground that the case should have been stopped.

1. Appeal allowed; convictions quashed. The prosecution evidence at the close of its case was incapable, without more, of proving beyond reasonable doubt that the appellant was the robber.

2. The balaclava contained DNA from at least two people. Although the appellant’s profile was complete and the other profile was incomplete, the scientific evidence could not show when or how either profile was deposited. It could not identify which contributor, if either, wore the balaclava during the robbery.

3. The prosecution could not overcome that evidential difficulty by relying on the location tested or on the completeness of the appellant’s profile. Even if the other contributor were identified, the evidence would not establish which person had worn the balaclava at the material time.

4. The judge should therefore have upheld the submission of no case to answer. The appellant’s later evidence and his no-comment interview could not cure the insufficiency of the prosecution case at the point when the application was made.

• Court of Appeal (Criminal Division): allowed the appeal against conviction and quashed the convictions.
• Liverpool Crown Court: convicted the appellant on 21 November 2007 of robbery and possessing a firearm while committing the offence.