R v Daniel Burdett

On a submission of no case to answer, the question is whether, taking the prosecution evidence at its highest, a reasonable jury properly directed could convict. A case may proceed on DNA evidence alone where the circumstances make the evidence capable of supporting the necessary inference. The significance of DNA depends on its context, including where it is found, how items are packaged, whether the evidence concerns separate incidents, and any surrounding circumstantial evidence. The court assesses evidential sufficiency, not whether the prosecution case is strong or likely to succeed. Silence in interview may be considered at this stage where the circumstances permit. The assessment is fact-specific.

Daniel and Richard Burdett were convicted in the Crown Court at Manchester of being knowingly concerned in the fraudulent evasion of the prohibition on importing firearms and ammunition, contrary to section 170 of the Customs and Excise Management Act 1979. Richard Burdett was also convicted of fraud. The prosecution case relied principally on DNA and fingerprint evidence, together with telephone, travel and other circumstantial evidence.

Both defendants renewed applications for leave to appeal against conviction after the single judge refused permission. Their central contention was that the trial judge should have upheld their submissions of no case to answer because the forensic evidence did not establish knowing involvement in importation into the United Kingdom. The Court of Appeal considered whether the evidence was sufficient for a reasonable jury properly directed to convict.

Applications refused. The trial judge had correctly applied the principles governing a submission of no case to answer and made no arguable error in refusing to stop either case.

1. Daniel Burdett. Although the prosecution case was largely based on DNA, a case may properly be left to the jury solely on DNA evidence in an appropriate case. The relevant assessment included the Tsekiri factors. DNA was found in two unconnected importations and on firearms as well as on their carefully layered packaging. It was open to the jury to infer that the packaging had been prepared for importation into the United Kingdom. Those features called for an explanation and provided sufficient evidence of knowing involvement.
2. Richard Burdett. The DNA on the packaging, fingerprint evidence, the location of his phone in Europaplein when the unknown user of the 518 number was there, and the communications between that user and the lorry driver together formed evidence on which the jury could properly act. The significance of the location evidence lay in the coincidence of the particular place and time, not merely in presence in Amsterdam. The inference that the 518 user travelled there to meet Richard Burdett was properly open.
3. The judge’s factual error in her first ruling was corrected in her second ruling and did not undermine the decision. She was also entitled to consider Richard Burdett’s silence in interview when determining whether there was a case to answer. R v Jones did not establish the broader proposition advanced by the defence; it was fact-specific.
4. The applications for permission to appeal were refused. Accordingly, all applications were refused.

• Court of Appeal (Criminal Division): Applications for leave to appeal against conviction and for representation orders were renewed after refusal by the single judge. The applications were refused: [2022] EWCA Crim 1475.
• Crown Court at Manchester: Before Her Honour Judge Goddard QC and a jury, Daniel Burdett was convicted on five counts and Richard Burdett on two counts of being knowingly concerned in the fraudulent evasion of the prohibition on importation, contrary to section 170 of the Customs and Excise Management Act 1979. Richard Burdett had also pleaded guilty to fraud.