Bryon, R. v

Where a DNA profile matching the defendant is found on a movable item at a crime scene, the DNA evidence alone will not ordinarily support a conviction. Its weight depends on the surrounding evidence, which may make it compelling.

Under Criminal Justice Act 2003, evidence of a previous similar offence may be admitted where it shows propensity to commit an unusual form of offending and assists the jury to test a surprising innocent explanation for the presence of DNA. Such evidence does not impermissibly bolster a weak case where the existing evidence is strong.

The appellant was convicted at Ipswich Crown Court of burgling a Sainsbury supermarket and stealing cash from its flight-pod system. Tape used to seal a cut vacuum tube carried a mixed DNA profile, whose major component matched the appellant. The prosecution also relied on his previous conviction for a materially similar supermarket burglary.

He appealed against conviction, contending that the previous conviction should not have been admitted and that DNA evidence did not provide a case to answer. The central issue was whether the DNA evidence, together with the previous conviction, could properly be left to the jury.

1. The appeal was dismissed. The trial judge was entitled to admit the previous conviction and to reject the submission of no case to answer.
2. A matching DNA profile on a movable object left at the scene, including a mixed profile, is insufficient by itself to sustain a conviction. A person may handle an object without depositing DNA, so the presence of only the defendant’s DNA would not necessarily show that no other person handled it. But DNA evidence may be compelling when combined with other evidence pointing to the defendant. This followed the principle stated in Doheny and Adams [1997] 1 Cr App R(S) 369 and the reasoning in R v Darnley [2012] EWCA Crim 1148.
3. The prior conviction was properly admissible under section 101(1)(d), read with section 103(1), of the Criminal Justice Act 2003. The earlier and charged burglaries used exactly the same unusual method. The evidence therefore showed a propensity to commit that skilled and distinctive type of burglary. It also assisted the jury in assessing the appellant’s explanation that other burglars may have taken his tape and used it in the offence. It was not admitted merely to invite propensity reasoning.
4. The principle in R v Hanson [2005] EWCA Crim 824 did not exclude the bad-character evidence. The evidence was not being used to bolster a weak case. The DNA evidence, coupled with the properly admitted conviction, formed a sufficiently strong case for the jury.

The conviction and sentence therefore stood.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction: [2015] EWCA Crim 997.
• Ipswich Crown Court: The appellant was convicted by a unanimous jury of burglary and sentenced to four years’ imprisonment.