Tsekiri, R v

A high-probability DNA match on an item at the scene of a crime can, without other supporting evidence, establish a case to answer. There is no legal or evidential rule to the contrary merely because the item is movable.

The assessment is fact-sensitive. Relevant matters include the item’s connection with the offence, its mobility, the likelihood of primary rather than secondary transfer, any geographical association, whether the matching profile is the major contributor, and any alternative explanation. An unexplained profile is not itself corroborated by silence, but the absence of an explanation may leave the DNA evidence unundermined.

The applicant was convicted of robbery at Kingston upon Thames Crown Court. A mixed DNA profile was recovered from the exterior driver’s door handle of the complainant’s car, which the robber had used. The applicant was the major contributor, with a match probability of 1:1 billion.

At the close of the prosecution case, the trial judge rejected a submission that there was no case to answer. The applicant contended on appeal that DNA evidence on an item at the scene, without independent supporting evidence, could not sustain the conviction. The central issue was whether the DNA evidence alone was capable of being left to the jury.

1. Leave to appeal was granted, but the appeal was dismissed. The DNA evidence was capable of establishing a case to answer and the conviction was safe.

2. The court held that the approach stated in Bryon [2015] 2 Cr.App.R. 21 was incorrect. Its observation that DNA on an item left at the scene could not, without supporting evidence, sustain a conviction was obiter. There was no sensible rationale for such a general rule.

3. Ogden [2013] EWCA Crim 1294 remained valid on its particular facts, which included an untested second blood stain and no evidence that the burglar had shed blood. It did not establish a generally applicable rule. The court also agreed with the concern expressed in R v FNC [2016] 1 Cr.App.R. 13 that the earlier authorities could not support the broad rule attributed to them.

4. Where a DNA profile is the only evidence connecting a defendant with the offence, a match probability of 1:1 billion or similar may be sufficient. The court must assess all the circumstances. Relevant matters include an alternative explanation, the item’s association with the offence, its mobility, geographical association, whether the defendant is the major contributor to a mixed profile, and whether primary or secondary transfer is more likely.

5. The absence of an explanation does not itself add support to the prosecution case. Section 34 of the Criminal Justice and Public Order could permit an adverse inference in an appropriate case, but none arose where the defendant had simply put the prosecution to proof. Here the defendant’s major profile was on the handle used by the robber, secondary transfer was unlikely, and there was no explanation at the close of the prosecution case. The case was therefore properly left to the jury.

• Court of Appeal (Criminal Division) Leave to appeal was granted and the appeal against conviction was dismissed: [2017] EWCA Crim 40.
• Kingston upon Thames Crown Court The applicant was convicted of robbery on 9 September 2016 after the Recorder rejected a submission of no case to answer.