Gabriel, R. v

DNA evidence capable of identifying only one or more members of an indistinguishable group may be admissible as circumstantial evidence where other evidence makes it relevant to the alleged conspiracy. Its potentially prejudicial character does not make its admission unfair if the jury are directed on its limits and required to assess each defendant separately.

Where a juror conducts prohibited online research, the trial judge must decide the appropriate response in its particular context. A failure by other jurors to report the irregularity does not automatically require the whole jury to be discharged.

Three identical triplets were convicted at the Crown Court at Blackfriars of conspiracies to possess a firearm and ammunition with intent to endanger life. The prosecution case was circumstantial and relied principally on telephone, cell-site and contact evidence. DNA found on a pistol muzzle was attributable, to a probability of one billion to one, to at least one triplet, but could not identify which of them.

The appellants challenged the admission and summing-up directions on that DNA evidence. They also challenged the judge’s response after a juror researched counsel online and told other jurors about it. Further renewed conviction grounds and renewed applications by two appellants for leave to appeal against sentence were also before the court.

1. The appeals against conviction were dismissed. The convictions were safe. The trial judge correctly left the circumstantial prosecution case to the jury and gave adequate directions on conspiracy, circumstantial evidence and the burden of proof.

2. Jury irregularity. The judge was required to act under Criminal Practice Direction Part 6 26M in the context of the particular irregularity. That approach was supported by R v KK and Others [2020] 1 Cr App R 29. Discharging the juror who had undertaken internet research, collectively questioning the remaining jurors, and directing them to decide the case only on the evidence were proper exercises of discretion. The information communicated about prosecution counsel was anodyne. The other jurors’ failure to report it did not itself require discharge of the whole jury.

3. DNA evidence. The evidence was relevant and properly admitted under section 78 of the Police and Criminal Evidence Act 1984. If accepted, and if innocent secondary transfer were excluded, it showed that at least one alleged conspirator had contacted a firearm forming part of the conspiracy. In combination with the telephone and cell-site evidence, it could support the prosecution case and rebut coincidence. Its inability to identify an individual triplet was a limitation for the jury, not a ground of inadmissibility or unfairness.

4. Directions. Although the directions on DNA could have been clearer, they adequately conveyed that DNA alone could not prove contact by any particular appellant; that each case required separate consideration; and that the DNA was only one part of the overall circumstantial evidence. No material inadequacy or circularity arose.

5. Sentence. The renewed applications for leave to appeal against the 14-year sentences imposed on Ralston and Ricky Gabriel were refused. Given the genuine loaded pistol, submachine gun and ammunition, the intended use by violent criminals, and their central roles, the sentences were severe but neither excessive nor out of range.

• Court of Appeal (Criminal Division): In [2020] EWCA Crim 998, dismissed the appeals against conviction and refused the renewed applications for leave to appeal against sentence.

• Crown Court at Blackfriars: The appellants were convicted on 2 July 2019 of conspiracy to possess a firearm with intent to endanger life and conspiracy to possess ammunition with intent to endanger life. Ralston and Ricky Gabriel each received 14 years’ imprisonment.