Lewis, R. v

In a DNA-evidence case, a very strong match may establish a case to answer even where the DNA was recovered from articles at the crime scene. The court must assess the circumstances, including alternative explanations, the article’s connection with the offence and movability, the nature of the DNA profile, and the possibility of secondary transfer. There is no evidential rule preventing a jury from considering a case dependent solely on such DNA evidence.

For section 34 of the Criminal Justice and Public Order Act 1994, a fact relied on in a defence includes an exculpatory explanation or account. A delayed explanation for DNA at a crime scene may therefore permit an adverse inference if the accused could reasonably have mentioned it when questioned. A direction is assessed fairly and as a whole.

The appellant appealed against convictions at Isleworth Crown Court for wounding with intent and possession of an offensive weapon. The prosecution relied principally on DNA found on a wall at the place of a struggle and on a lanyard worn by one of the victims. The defence denied that the appellant was present and suggested that the DNA might have been transferred secondarily.

The Recorder rejected a submission of no case to answer and directed the jury on a possible adverse inference from the appellant’s silence in interview concerning how his DNA had reached the scene. The appeal challenged both rulings and contended that the conviction was unsafe.

1. Appeal dismissed. The Recorder correctly rejected the submission of no case to answer. The evidence did not fall clearly within the category of a case based solely on DNA on a movable article left at the scene. The DNA was found on a wall and on a lanyard worn by a victim, and there was also identification evidence consistent with the appellant’s ethnicity and build. Even on the defence theory, the DNA had been deposited during the offence by the assailant.
2. In any event, applying R v Tsekiri [2017] EWCA Crim 40, the DNA evidence was sufficient for a jury. There was no adequate alternative explanation for the DNA, it was found at two locations associated with the assault, neither location was readily movable, and the wall sample was a complete profile matching the appellant. Although secondary transfer was possible, the evidence did not favour it over primary transfer. It was for the jury to assess that possibility.
3. The appellant’s suggestion that a family member may have carried his DNA into Grenfell Tower was a fact relied upon in his defence for the purposes of section 34 of the Criminal Justice and Public Order Act 1994. It was an exculpatory explanation for a critical item of evidence. The appellant knew that his DNA had been found at the location and could reasonably have advanced that explanation when questioned; it required no scientific expertise.
4. The direction could have expressly asked whether the appellant could reasonably have been expected to mention the explanation in interview. Read as a whole, however, it was fair and balanced. The jury were reminded of his stated reason for silence, told that the prosecution contention was for them to assess, and warned not to convict wholly or mainly because of silence. Defence counsel also addressed the reasonableness issue in closing. The convictions were therefore safe.

• Court of Appeal (Criminal Division) — granted leave to appeal and dismissed the appeal against conviction.
• Isleworth Crown Court — on 24 August 2017, convicted the appellant of wounding with intent contrary to section 18 of the Offences Against the Person Act 1861 and possession of an offensive weapon contrary to section 1(1) of the Prevention of Crime Act 1953. He received 13 years’ imprisonment for the wounding offence.