Killick, R v

A DNA profile on a movable item left at a crime scene may, with a match probability of one billion or similar, be capable of establishing a case to answer without further evidence. The inquiry remains fact specific. It requires assessment of the item’s connection with the offence, the evidence concerning direct or indirect transfer and timing, alternative innocent explanations, and any other evidence connecting the defendant to the crime. An absence of explanation for the DNA finding cannot itself strengthen the prosecution case at the no-case stage.

Evidence of drug use and debt is not evidence of motive where it provides only a speculative addition to general impecuniosity. It is inadmissible under the Criminal Justice Act 2003 if it is neither important explanatory evidence nor relevant to an important matter in issue, particularly where its prejudicial effect is substantial.

The prosecution applied for leave to appeal against a recorder’s rulings during the respondent’s trial for burglary. The recorder excluded passages from the respondent’s police interview concerning drug use and a drug debt. After the prosecution evidence, the recorder upheld a submission of no case to answer.

The prosecution case depended on a one-in-a-billion DNA match from a screwdriver found where the burglar appeared to have searched for an item dropped at the scene. The scientific evidence did not address when or how the DNA was deposited. There was no other evidence connecting the respondent to the burglary. The central issue was whether that evidence could safely support a conviction, applying R v Tsekiri [2017] EWCA Crim 40.

1. The court refused leave to appeal, confirmed the recorder’s no-case ruling, and ordered the respondent’s acquittal under section 61(3) of the Criminal Justice Act 2003.
2. The evidence of drug use and a drug debt was properly excluded. In the circumstances, it supplied no more than a speculative motive for burglary. It added little to the evidence of general financial difficulty, while carrying substantial prejudice. It was therefore not evidence concerning the alleged facts of the offence for section 98 purposes.
3. The court held that the evidence was also inadmissible through section 101(1). It was not important explanatory evidence. Nor could it be relevant to an important matter in issue through gateway (d), because it was neither evidence of a propensity to burgle nor, on these facts, evidence of motive. The recorder reached the right result, although wrongly treating gateway (d) as initially available and then excluding the evidence under section 101(3).
4. Applying R v Tsekiri [2017] EWCA Crim 40, DNA on an item left at a scene can suffice without more where the match probability is one billion or similar, but sufficiency depends on the particular facts. Here the screwdriver was strongly connected with the burglar, and the DNA match identified the respondent as the source. However, the scientific evidence did not address timing, the mechanism of transfer, or whether direct transfer was more likely than indirect transfer. The portable nature of the screwdriver, the possible use of gloves by the burglar, and the absence of any other connecting evidence left a reasonable possibility of an innocent earlier, direct or indirect deposition. The respondent’s lack of explanation could not add support at the no-case stage. His partner’s evidence was neither fatal to nor supportive of the prosecution case. No reasonable jury could safely exclude innocent deposition of the DNA.

• Court of Appeal (Criminal Division): In this judgment, [2020] EWCA Crim 785, the court refused the prosecution’s application for leave to appeal, confirmed the recorder’s rulings, and ordered the respondent’s acquittal.
• Crown Court (Recorder): During the burglary trial, the recorder excluded the disputed interview evidence and upheld the respondent’s submission of no case to answer. A not guilty verdict was to be entered and the jury was discharged.