Mufty & Anor, R. v

Non-statistical DNA evidence may be admitted where it has a sufficiently reliable scientific basis, but the jury must be clearly directed on its limited and non-statistical value. A deficient summing-up does not make a conviction unsafe where the whole of the admissible evidence remains compelling.

Evidence of an earlier incident may be admitted as relevant background where its temporal proximity and proposed relevance justify that course. Directions must enable separate consideration of each defendant and count, and must explain when joint possession may be found.

Police found firearms, ammunition and Class A drugs concealed in a roof void at Gaydon House. Malik’s fingerprints were on the ceiling tile and drugs bag. Mufty’s fingerprints were on the ammunition bag. Both appellants were convicted at trial of firearm, ammunition and drug offences.

They appealed against conviction, challenging the admission and direction concerning non-statistical DNA evidence, evidence that Malik had been shot two months earlier, and the adequacy of directions on separate consideration, joint possession and speculation. Malik also renewed an application for permission to appeal against sentence. The central issue was whether the identified deficiencies in the summing-up rendered the convictions unsafe.

1. The appeals against conviction were dismissed. Although parts of the summing-up were inadequate, the convictions were safe when the evidence was considered as a whole.
2. Following R v Dlugosz [2013] 1 Cr App R 32, non-statistical DNA evidence was not inadmissible merely because statistical evaluation was impossible. However, once admitted, the judge had to explain the experts’ experience, the nature and limits of their opinions, and their disagreement. The judge’s scant treatment of those matters was unequivocally inadequate.
3. The shooting of Malik two months before the discovery was sufficiently proximate to be relevant background evidence. It was capable of supporting the prosecution case that he might have access to a firearm for protection. It was not necessarily bad-character evidence, and the trial judge’s admission of it fell within the reasonable bounds of discretion. The directions sufficiently warned the jury not to infer guilt merely because Malik had been the victim of the shooting.
4. The directions, read as a whole, adequately required separate consideration of each defendant. They sufficiently conveyed that joint possession required proof that the defendants were acting together and that each had the requisite knowledge and control. The lack of a direction against speculation and the generally unsatisfactory summing-up did not undermine the convictions in light of the strong circumstantial evidence, including fingerprints, telephone traffic, and the appellants’ implausible accounts.
5. The renewed sentence application was otherwise dismissed. The court held that the six-year ammunition sentences were unlawful, stating that the maximum was five years, and substituted concurrent terms of four years for both appellants. Malik’s total term of 16 years’ imprisonment was not manifestly excessive.

• Court of Appeal (Criminal Division). In [2017] EWCA Crim 185, the court dismissed both appeals against conviction. It varied the unlawful ammunition terms but otherwise dismissed Malik’s renewed application for permission to appeal against sentence.
• Crown Court (not identified). Malik and Mufty were convicted of firearm, ammunition and Class A drug offences. Malik received a total of 16 years’ imprisonment and Mufty a total of 10 years’ imprisonment.