Jones v R.

Where DNA on an article associated with an offence may have been deposited directly or by secondary transfer, a general proposition that direct transfer is more probable does not, without case-specific evidential support, establish guilt beyond reasonable doubt. The significance of a very strong DNA match depends on all the facts.

An adverse inference under section 34 of the Criminal Justice and Public Order Act 1994 cannot rest on a defendant’s failure to explain secondary transfer where the expert evidence makes such an explanation unrealistic to expect. Expert evidence should address scientific matters and leave surrounding factual issues to the court.

The appellant was convicted at Liverpool Crown Court of conspiring to possess explosives for an unlawful purpose. His DNA was found on the firing pin of a viable homemade hand grenade left outside a house in Warrington. The prosecution alleged that the grenade formed part of a drugs-related campaign of intimidation.

The DNA experts agreed that the appellant’s DNA was present but that the result could not determine when or how it was deposited, or distinguish direct from secondary transfer. The judge rejected a submission of no case to answer. On appeal, the Crown accepted that its telephone-attribution evidence could not be sustained. The central issue was whether the remaining DNA evidence could safely support the conviction.

1. Appeal allowed; conviction quashed. The evidence did not provide a safe basis on which a jury could be sure that the appellant was a party to the conspiracy.

2. The appellant’s DNA was on the grenade’s firing pin, and direct transfer would have made the case against him strong. However, the agreed expert evidence did not permit a case-specific assessment of whether the DNA arrived by direct or secondary transfer. It established only the general proposition that a route involving one transfer step will occur more often than one involving two steps. That probability did not establish what occurred in this instance.

3. The appellant’s connection with Warrington did not distinguish direct from indirect transfer. There was no observation evidence or other evidence connecting him with any step in the conspiracy. The telephone evidence could not support the Crown’s case. Unlike R v Tsekiri [2017] EWCA Crim 40, there was no expert evidence that secondary transfer was improbable. R v FNC [2015] EWCA Crim 1732 was further removed because, on its facts, the offender had directly deposited DNA during the offence.

4. Section 34 of the Criminal Justice and Public Order Act 1994 could not support an adverse inference from the appellant’s failure to explain an indirect transfer. Given the experts’ broad agreement that it was unrealistic to expect a person to account for indirect transfer, such an explanation could not reasonably have been expected without further evidential groundwork.

5. The court stressed that the result turned on the particular evidence. Its only intended general guidance was that expert evidence should be confined to scientific questions, leaving factual questions about the circumstances of transfer open.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the conviction: [2020] EWCA Crim 1021.
• Crown Court at Liverpool: On 29 April 2019, convicted the appellant by a majority of 11 to 1 of conspiracy to possess explosives for an unlawful purpose. On 2 May 2019, imposed life imprisonment with a six-year minimum term.