Ogden, R. v

Where the prosecution case depends solely on DNA found on an item left at the scene, a highly compelling match probability does not by itself provide a sufficient case to leave to the jury. There must be some independent evidence creating a nexus between the defendant and the offence. That additional evidence may be slight, but uncertainty about when or how the DNA was deposited, coupled with the possibility that another person carried the item to the scene, may mean that no case can properly be left to the jury.

The appellant was convicted of burglary in the Crown Court and sentenced to 12 months’ imprisonment, suspended for two years, with a one-month curfew requirement.

The sole prosecution evidence was blood DNA on a scarf found by the broken window through which entry had been gained. The match probability was one in a billion, but the DNA could not be dated, its means of deposition was unknown, and the scarf had been accidentally destroyed before the defence could test it for other DNA.

The trial judge rejected a half-time submission of no case to answer. The appeal concerned whether DNA evidence alone, in those circumstances, was sufficient to sustain a conviction.

1. Appeal allowed. The conviction was quashed. The prosecution accepted that the judge should have acceded to the half-time submission.

2. The court held that there was no case which could properly have been left to the jury. The DNA evidence was the sole evidence against the appellant. Although the blood profile had a one-in-a-billion probability of belonging to an unrelated person, that statistic did not establish how or when the DNA came to be on the scarf.

3. The admissions left open a realistic possibility that another person took the scarf to the burgled house after the appellant’s DNA had been deposited on it. There was no independent evidence that the burglar had cut himself on the window or otherwise linking the appellant to the offence.

4. The court applied the approach reflected in Lashley [2000] EWCA Crim. 88 and R v Grant [2008] EWCA Crim. 1890. DNA evidence may become compelling when supported by even a slight independent nexus to the crime. In its absence, DNA found on an item at the scene was insufficient to justify a conviction on these facts.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction and quashed the burglary conviction: [2013] EWCA Crim 1294.
• Crown Court: On 1 August 2012, Mr Recorder Haar QC convicted the appellant of burglary and imposed a suspended sentence with a curfew requirement.