England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		Tuesday 8th February 2000

Tuesday 8th February 2000

1. LORD JUSTICE KENNEDY: On 11th June 1999, in the Crown Court at Liverpool, this appellant was convicted of robbery and of possessing an imitation firearm with intent to endanger life and was sentenced to six years' imprisonment on each count concurrent, the sentence on Count 1, that is to say the offence of robbery, to be consecutive to a total period of imprisonment to which the appellant was already subject. He now appeals against conviction by leave of the Single Judge.
2. The robbery took place on 17th August 1996 at the sub-post office in Smithdown Road, Wavertree, and during that robbery the subpost master, Mr Atkinson, was manacled to the safe on the floor. It was clearly a planned robbery.
3. The sole evidence against this appellant was DNA evidence obtained from a half smoked cigarette which was left at the scene. When the saliva on the cigarette was examined it matched the DNA sample obtained from the appellant. That match was not in dispute, but what was to be made of that match was the principal matter which the jury had to consider because the interpretative evidence showed that the profile was not unique. It was the same as the profile which would be obtained from seven to ten other males in the United Kingdom.
4. The appellant was not arrested for some considerable time. He was in fact arrested on 21st July 1998 in Nottingham. That was a factor of which the jury was not made aware because at that time he was not at liberty. All they therefore knew were the outlined facts of the robbery itself and the fact that after his arrest the appellant gave the sample which enabled the scientist to make the analysis and give the evidence to which we have just referred.
5. In dealing with that evidence the learned judge said this:

"In relation to the random occurrence ratio that you have heard I tell you this. That if you accept the scientific evidence called by the Crown it indicates that there are probably seven or ten or perhaps more males (but only that, not men, males, because some may be children, males) in the United Kingdom to whom that profile relates. The defendant is one of them."

6. A little later he said:

"It is that evidence and that evidence alone."

7. He said that because, when interviewed, the appellant, on advice, declined to answer questions, and the Crown decided that, having regard to the lapse of time, this was not a case in which it would be appropriate to invite the jury to draw any inference from his refusal at that stage to answer questions.
8. A submission was made to the judge that there was no sufficient case to go to the jury. That submission was rejected, and the appellant then elected not to give evidence. The learned judge did give the now standard direction as to the inference which could be drawn from that decision on the appellant's part. In dealing with that he said:

"What inference can you properly draw from the defendant's decision not to give evidence before you? I say this to you, if, and only if, you conclude that there is a sufficiently compelling case for him to meet you may think that if he had an answer to it he would have gone into the witness box to tell you what it is. These are not my words, these are legal directions that I am obviously reading to you."

9. The important words in that direction relate to the "sufficiently compelling case", and it is essentially that which Mr Halligan this afternoon has been inviting us to consider. He submits that here the jury simply had the evidence that three men went into this sub-post office wearing balaclavas. This man was arrested a considerable time later, almost but not exactly two years later. Against him there was the connecting link that behind the counter in the sub-post office on the floor there was a half smoked cigarette with saliva on it which could be his to the extent indicated by the evidence to which we have just referred. There was nothing in this case to show that the appellant was in the relevant area at the time when the offence was committed. There was nothing said by the appellant which could indicate any participation on his part in this offence or any knowledge of it.
10. The problem created by evidence of this kind has been considered on a number of occasions by this Court and in the case earlier this afternoon we referred to one of them, the decision of this Court in Doheny and Adams (1997) 1 Cr.App.R.(S.) 369. It may be worth referring to that decision again. Phillips LJ, at page 372, set out the significance of DNA evidence. He said:

"The significance of the DNA evidence will depend critically upon what else is known about the suspect. If he has a convincing alibi at the other end of England at the time of the crime, it will appear highly improbable that he can have been responsible for the crime, despite his matching DNA profile. If, however, he was near the scene of the crime when it was committed, or has been identified as a suspect because of other evidence which suggests that he may have been responsible for the crime, the DNA evidence becomes very significant. The possibility that two of the only 26 men in the United Kingdom with the matching DNA should have been in the vicinity of the crime will seem almost incredible....."

11. We substitute for that the possibility that one of the only perhaps seven men in the United Kingdom with the matching DNA could have been in the vicinity of the crime will seem almost incredible, and continuing with the citation:

".....and a comparatively slight nexus between the defendant and the crime, independent of the DNA, is likely to suffice to present an overall picture to the jury that satisfies them of the defendant's guilt.

The reality is that, provided there is no reason to doubt either the matching data or the statistical conclusion based upon it, the random occurrence ratio deduced from the DNA evidence, when combined with sufficient additional evidence to give it significance, is highly probative. As the art of analysis progresses, it is likely to become more so, and the stage may be reached when a match will be so comprehensive that it will be possible to construct a DNA profile that is unique and which proves the guilt of the defendant without any other evidence. So far as we are aware that stage has not yet been reached."

12. In the course of his submissions on behalf of the respondent, Mr Hall invited our attention to the decisions in the case of Denis Adams (No. 1) (1996) 2 CrAppR 467, and Denis Adams (No. 2) (1998) 1 CrAppR 377. In Denis Adams (No. 1), Rose LJ, in the course of giving judgment, said at page 470A, and we accept, that:

"There is, however, nothing inherent in the nature of DNA evidence which makes it inadmissible in itself or which justifies a special, unique rule, that evidence falling into such a category cannot found a conviction in the absence of other evidence."

13. That, however, as it seems to us, does have to be read alongside the passage from Phillips LJ to which we have just referred. In Denis Adams (No. 2) the Lord Chief Justice, when giving the judgment of the Court, said, at page 384:

".....this was a case properly approached by the jury along conventional lines. That would involve them perhaps in asking themselves at the outset whether they accepted...the DNA evidence called by the Crown. If the answer to that was 'no',... then that would be the ends of the case. If, however, the jury concluded that they did accept the DNA evidence...then they would have to ask themselves whether they were satisfied that only X...men in the United Kingdom would have a DNA profile matching that of the rapist who left the crime stain. It would be a matter for the jury...to give a value to X. They would then have to ask themselves whether they were satisfied that the defendant...was one of those men. They would then go on to ask themselves whether...the defendant was the man who left the crime stain, bearing in mind [such matters as discrepancies of description and so forth] and the evidence of the appellant and the witnesses called by him. ...consideration of this case along the lines indicated would in our judgment reflect a normal course for a properly instructed jury to adopt."

14. That, as it seems to us, with respect, is entirely in line with the approach indicated by Phillips LJ, and the problem which arises here, as it seems to us, is simply that here if the jury discounted the figure of seven to ten in order to allow for those who would be too young to have committed this offence and those who would be too old to have committed it, they would still be left with a nucleus figure say, for the purposes of argument, in the region of five or six. If it were possible to have placed alongside all of the five or six men in the United Kingdom who would have been in that group, what, one asks oneself, would the jury have said? How could they be sure which of them committed the offence?
15. That highlights, as it seems to us, the difficulty in this particular case of relying on the DNA evidence alone in circumstances where there was absolutely no other evidence to set alongside it. If there had been, for example, evidence to show that this appellant, at the material time, was in the Liverpool area or normally lived in the Liverpool area or had Liverpool connections, then the jury might well have found the case to be compelling, but that, as the evidence was the before the jury, was not the case.
16. Accordingly it seems to us that this is a case in which the submission at half time should have succeeded and in which the jury ought to have been directed, if the matter went any further, that there was in reality no sufficiently compelling case for him to meet. Accordingly we come to the conclusion that this appeal must be allowed, and we accordingly allow it. There being no application for a retrial, the matter will take its normal course. The conviction will be set aside.