FNC, R. v (Rev 1)

There is no special rule that DNA evidence requires independent supporting evidence before it can found a conviction. Its sufficiency depends on its quality and the circumstances in which it was deposited. Where the offender directly deposits DNA during the commission of the offence, a match probability of one in a billion is capable, without more, of establishing a case to answer. That differs from cases in which DNA is found on a movable article left at the scene, since the evidence may not establish when or by whom the article was used. Improved DNA analysis may nevertheless require reconsideration of whether a very high match on such an article can itself establish a case to answer.

The respondent was charged following an alleged sexual assault on a London Underground train in 2003. Semen found on the back of the complainant's trousers produced a DNA profile which, after a later database match, matched the respondent with a random-match probability of one in a billion.

Before any prosecution evidence was called, the recorder accepted a submission of no case to answer. He treated the DNA as insufficient because there was no other evidence connecting the respondent to the assault. The prosecution appealed under section 58 of the Criminal Justice Act 2003. The appeal also raised whether the respondent's no-comment interview could support an inference under section 34 of the Criminal Justice and Public Order Act 1994.

The central issue was whether the DNA evidence, in the circumstances of its deposit, was sufficient to require an answer.

1. Appeal allowed. The recorder's terminating ruling was wrong in law. The semen had been deposited on the complainant's trousers in the course of the alleged assault. A one-in-a-billion match provided a very strong case that it was the respondent's DNA and therefore established a case to answer.

2. A no-case ruling ordinarily arises only at the end of the prosecution evidence. The parties and the recorder had proceeded prematurely on the mistaken basis that all prosecution evidence was agreed or known. They had also overlooked the potential relevance of section 34 of the Criminal Justice and Public Order Act 1994. The prosecution had consented to that course, so the appeal was not allowed on this procedural error.

3. Section 34 did not assist the prosecution on the facts. R v Webber, [2004] 1 WLR 404, confirms that a court considering whether there is a case to answer may draw proper inferences where a positive defence case has emerged. No prosecution witnesses had been called here, so there had been no opportunity to identify such a positive case.

4. The court applied the distinction drawn in R v Sampson & Kelly, [2014] EWCA Crim 1968, and the approach in R v Adams (No 2), [1998] 1 Cr App R 377. Directly deposited crime-stain DNA differs from DNA on an article left at the scene. The latter category explained the outcomes in R v Lashley, transcript 8 February 2000, R v Grant, [2008] EWCA Crim 1890, and R v Ogden, [2013] EWCA Crim 1294; it did not govern this case.

5. At trial, the defence could adduce evidence such as the existence of a brother or the respondent's absence from London. The jury would then assess all the evidence, including the discrepancy between the complainant's description and the respondent's appearance. A trial was directed in the Crown Court before a Circuit Judge.

6. In obiter, the court questioned whether the earlier movable-article DNA cases, and the observations in R v Bryon, [2015] EWCA Crim 997, remain correct in light of improved DNA analysis. A one-in-a-billion match on an article left at the scene may itself be sufficient to establish a case to answer.

• Court of Appeal (Criminal Division) Allowed the prosecution appeal under section 58 of the Criminal Justice Act 2003. The terminating ruling was set aside and a trial was directed before a Circuit Judge.
• Crown Court On 5 May 2015, the recorder upheld a submission of no case to answer before prosecution evidence was called. The lower-court citation was not stated in the judgment.