England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		22nd April 2015

1. LORD JUSTICE JACKSON: This judgment is in four parts, namely:
2. Part 1. Introduction;
3. Part 2. The facts;
4. Part 3. The criminal proceedings
5. Part 4. The appeal to the Court of Appeal.
6. Part 1. Introduction
6. This is an appeal against conviction for burglary. The issue in this appeal is whether the jury were entitled to convict the appellant solely on the basis of DNA evidence and him previously having committed a similar offence.
7. The burglary in question was committed at a Sainsbury supermarket. For a proper understanding of this case it is necessary for us to say something about the way in which supermarkets handle the large quantities of cash which they receive.
8. At a number of supermarkets it is common practice for cash to be transferred from the tills to the secure cash office in containers called "flight pods". The flight pods travel swiftly to their destination through a vacuum tube in the roof void of the supermarket.
9. One statute is relevant to this appeal, namely the Criminal Justice Act 2003 to which we shall refer as "the 2003 Act". Section 101(1) of the 2003 Act provides:

i. "In criminal proceedings evidence of the defendant's bad character is admissible if and only if ...

ii. (d) it is relevant to an important matter in issue between the defendant and the prosecution."

10. Section 103(1) 2003 Act provides:

i. "(1)For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include—

ii. (a)the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence..."

11. After these introductory remarks we must now turn to the facts.
13. Part 2. The facts
12. On the evening of 11th January 2014 staff at Sainsbury supermarket in Bury St Edmunds discovered that a number of flight pods were arriving empty at the secure cash office. It appeared therefore that a thief must have intercepted the flight pods en route and stolen the cash inside. Sainsbury staff contacted the police and reported the theft.
13. Police officers arrived at 10.30 pm. They discovered that someone had gained access to the roof void and cut open the vacuum tube. The thief must have captured the passing flight pods and extracted the contents. Then he had put the flight pods back into the vacuum tube to continue their journey. In order to maintain the vacuum in the tube the thief had used tape to seal the hole which he had cut, except presumably during periods when he was extracting or replacing flight pods.
14. A forensic examiner carefully removed the tape from the vacuum pipe and took it away for examination. The pieces of tape were swabbed. Then Ms Marion Stone, a forensic scientist, carried out a DNA analysis. She found a mixed DNA profile. In other words the DNA came from at least two people. The major portion of the DNA matched the DNA of Michael Bryon, the present appellant. Ms Stone estimated the likelihood ratio as 1 in a billion. In other words the match was one billion times more likely to occur if the DNA came from Mr Bryon rather than from someone unrelated to him.
15. Mr Bryon was not a man of good character. He had a criminal record. That criminal record included a conviction in November 2010 for a burglary committed at Tescos supermarket in Swindon. The Swindon burglary was carried out in exactly the same manner as the latest Bury St Edmunds burglary. Mr Bryon had pleaded guilty to the Swindon burglary on the basis that he was the driver.
16. The police arrested Mr Bryon and interviewed him. Mr Bryon chose to give "no comment" answers to most of the questions including such harmless questions as: have you ever visited Sainsbury's? In the latter part of the interview the police asked Mr Bryon how his DNA came to be on the tape found on the pipe in the roof void of Sainsbury's at Bury St Edmunds. Mr Bryon replied that he and his partner had a circle of friends who sometimes committed burglaries of that nature. Mr Bryon said that his house and shed were generally open. Possibly his friends had gone in and had borrowed Mr Bryon's masking tape for the purpose of committing the Bury St Edmunds burglary. The police did not find these answers compelling. Criminal proceedings followed.
19. Part 3. The criminal proceedings
17. Mr Bryon was charged on an indictment containing a single count. This count was that he committed burglary having entered a Sainsbury's store at Bury St Edmunds as a trespasser and stealing from that store £14,800. Mr Bryon pleaded not guilty to that count.
18. The defendant stood trial at Ipswich Crown Court before His Honour Judge Devaux and a jury in October 2014. The defence was one of alibi. The defendant asserted that on the day of the burglary he was in the area of Walsall where he lived and was occupied in ordinary domestic life, with his then partner, Ms Kissy Brooks.
19. At the start of the trial Mr Jonathan Goodman, the defendant's counsel, submitted that the case should not proceed because it rested entirely on DNA evidence. The judge rejected that submission.
20. The trial duly proceeded. The prosecution called evidence from Sainsbury as to the system of transferring cash from tills to the secure office and as to the discovery of the loss. Police officers gave evidence of their investigations. Ms Stone explained to the jury her DNA findings. Another expert witness instructed by the defence gave uncontested evidence that DNA could remain where it was deposited for months if not years.
21. There was an issue between the parties as to whether the defendant's previous conviction should go before the jury. The judge ruled that that evidence should go in, pursuant to section 101(1)(d) and section 103(1) of the 2003 Act. The judge allowed the previous conviction in essentially on the basis that it indicated propensity and rebutted coincidence.
22. At the conclusion of the prosecution evidence Mr Goodman made a submission of no case to answer. The judge rejected that submission. The defence then called their evidence. The defendant told the jury that on 11th January 2014 he was in Walsall where he lived with Ms Brooks and their three children. He had never been to Bury St Edmunds. The defendant gave an account of the Swindon burglary. He said that he drove his fellow burglars from Walsall to Swindon. They were going to buy some duct tape at B & Q on the way in order to use it in the burglary. Luckily however there was duct tape in the defendant's car, so the burglary team did not need to stop in order to make that purchase. The defendant offered the same explanation for the presence of his DNA on the duct tape found at the Bury St Edmunds Sainsbury store as he had proferred during his interview.
23. Ms Brooks was the second defence witness. She said that on 11th January 2014, in the afternoon, she visited her sister. The defendant drove Ms Brooks and the children to the sister's house. Ms Brooks said that there was a shed at her home. The shed was unlocked. There was nothing to stop people going in and taking things out of the shed.
24. When the judge came to sum the case up he provided a pithy summary of the defence as follows:

i. "So the defendant says he played no part; he was in the Walsall area at the time that this burglary was committed; he played no part whatever in the burglary. There may be DNA on the tape that matches his, but there is an innocent explanation for that; he had such tape, he said, in his car back at the time of the Swindon burglary, and he is now saying that he kept a lot of things in the shed in the garden, including tape, and anyone at any time could have removed the tape from there for use on such an occasion. It seems that he, or his now former partner, are connected, one way or another, with others who may commit burglaries of this kind and could well have been deposited by one of them; it was not him."

25. The jury did not see any merit in that defence. They unanimously convicted the defendant of burglary. The judge sentenced the defendant to 4 years' imprisonment.
26. The defendant was aggrieved by his conviction. Accordingly, he has appealed to the Court of Appeal.
30. Part 4. The appeal to the Court of Appeal
27. The appellant appeals to the Court of Appeal essentially on two grounds which need to be considered together. The first ground is that the appellant's previous conviction should not have been admitted in evidence before the jury. The second ground is that the jury were not entitled to convict the appellant on the basis of DNA evidence alone. There was no other evidence to identify the appellant as having been present, for example, CCTV evidence. In those circumstances, says the appellant, the judge ought to have acceded to the submission made by the defence counsel at half time and to have stopped the trial then.
28. Mr Goodman who appears for the defence, as he did at the trial, has drawn our attention to the relevant authorities, as has Mr Cox, who appears for the prosecution as he did at the trial. We are grateful to both counsel for their assistance.
29. The relevant authorities which have been drawn to our attention are as follows. First, there is a helpful statement of principle made by the Court of Appeal in Doheny and Adams [1997] 1 Cr App R(S) 369, which has been referred to in a number of the subsequent authorities, and which we should read out. Phillips LJ said at page 372:

i. "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...."

30. The Court of Appeal applied statement of principle in R v Lashley (8th February 2000, unreported). In that case, there was a robbery at a sub-post office in Waverley. The robber left a half smoked cigarette at the scene. DNA analysis of that cigarette revealed a mixed profile of DNA, the main part of which matched the appellant. There was no other evidence against the appellant. The trial judge allowed the trial to proceed. The Court of Appeal held that the judge should have stopped the case at half time. Accordingly, this court allowed the appellant's appeal. In doing so Kennedy LJ, delivering the judgment of the court, cited and followed the statement of principle in Doheny and Adams to which we have previously referred.
31. Grant is another case which proceeds essentially the same principle. In R v Grant [2008] EWCA Crim 1890, there was a robbery in Liverpool. The police discovered a balaclava helmet which appeared to have been worn by the robber. A DNA analysis revealed a mixed profile. The principal part of that profile matched the defendant who was standing trial. The odds of it being someone unrelated to the defendant were estimated at 1 in a billion. The trial judge allowed the case to go forward. The jury returned a verdict of guilty. The Court of Appeal quashed that conviction, holding that the case should have been stopped at the close of the prosecution evidence. Gage LJ gave the judgment of the Court of Appeal. In paragraph 14, to which Mr Goodman has drawn our attention in argument this morning, Gage LJ said this:

i. "14. In our judgment, without more, it was never going to be possible to satisfy the jury to the appropriate standard of proof that the appellant was the robber. We reach this conclusion notwithstanding that the appellant gave 'no comment' answers at interview, and the judge properly gave the jury in respect of that matter."

32. In R v Darnley [2012] EWCA Crim 1148, there was a burglary at a residential flat in London SW18. The burglar accidentally dropped a hankerchief before quitting the scene. DNA analysis revealed a mixed profile. The principal DNA profile on that handkerchief matched the appellant. The appellant was arrested. He pleaded not guilty. When interviewed by the police and when giving evidence in court he proffered an innocent explanation for the presence of his DNA on the handkerchief. The defendant said that he worked as a mobile hairdresser. As part of his trade he had purchased a large quantity of handkerchiefs. He used these to tidy up after cutting hair. He found handkerchiefs more convenient than towels. Once the defendant had used handkerchiefs for cleaning up he dropped them and left them behind. He did not trouble to retrieve them all. Therefore, said the defendant, probably the burglar had picked up one of these handkerchiefs and remained in possession of it when carrying out the crime.
33. Unfortunately for the defendant he had previous convictions for domestic burglary. The prosecution applied to adduce evidence of those previous convictions, pursuant to section 101(1)(d) of the 2003 Act. That application succeeded. The judge rejected a submission of no case to answer at the conclusion of the prosecution case. The trial went forward. The defendant was convicted.
34. The defendant appealed, relying upon the earlier authorities to which we have referred. The Court of Appeal dismissed that appeal. Elias LJ, delivering the judgment of the court said this at paragraph 31:

i. "Having said that, whilst these cases are not directly applicable, the principle that bad character may be adduced to test an innocent explanation is, in our judgment, relevant here as it is in those cases. It is important evidence relating to an issue in dispute between the prosecution and the defence, within the meaning of gateway (d), namely whether the explanation the appellant gave as to why the handkerchief was found at the premises at all was truthful. The explanation given about using handkerchiefs when cutting hair is less likely to be true than if the appellant had no convictions for burglary, and the jury was entitled to be told of them. The evidence is not, therefore, admitted on the simple assumption that since the appellant had regularly committed burglaries in the past, so he must have committed this one, but rather because whoever was the burglar left the handkerchief at the scene of the crime. The appellant's innocent explanation as to why his DNA should have been found on the handkerchief was on the face of it surprising. The evidence helped the jury to test that explanation."

35. The Court of Appeal also considered the well-known principle that evidence of bad character should not be admitted in order to bolster a weak case. The classic authority which is the basis of that proposition is R v Hanson [2005] EWCA Crim 824; [2005] 1 WLR 3169. Elias LJ considered the application of that principle in paragraph 32 of his judgment. Elias LJ stated that, ignoring the appellant's previous convictions, it could not be said that the case against him was a very weak case. The DNA evidence identified the appellant as one of three possible people who had committed the crime in question. Elias LJ characterised that DNA evidence as "very strong evidence". He therefore concluded that the Hanson principle did not operate to bar adducing the bad character evidence in that case.
36. The next authority to which counsel have drawn our attention is R v Ogden [2013] EWCA Crim 1294. In this case there was a burglary of a house in Woolwich. The burglar had accidentally left a scarf. There was blood on the scarf. Police took a DNA profile from the blood left on the scarf. This matched the DNA of the appellant. The trial went forward. The appellant was convicted. The Court of Appeal noted that there was no other evidence against the appellant apart from the DNA profile. The Court of Appeal concluded that the judge ought to have stopped the case at the conclusion of the prosecution evidence. Accordingly, this court allowed the appellant's appeal essentially on the same basis as the court allowed the appeals in Lashley and Grant.
37. The final authority to which our attention has been drawn is R v Sampson and Kelly [2014] EWCA Crim 1968. This was a case which depended heavily on DNA evidence. However, there were very special circumstances in that case on the basis of which the Court of Appeal upheld the appellant's conviction.
38. Mr Goodman, on behalf of the appellant today, submits that because of the special circumstances in Sampson that case is not really relevant to either party's submissions and it should be distinguished. We agree. We think that for present purposes Sampson does not assist and should be distinguished for the purposes of considering the issues in the present appeal.
39. What then do the authorities establish? It is clear from the authorities that where a movable item is left at the crime scene with mixed DNA profiles, one of which matches the defendant's profile, that on its own is not sufficient to support a conviction. Indeed, the proposition may possibly be true if the DNA profile is not mixed because people can handle an object without depositing DNA, therefore even if the only DNA on an object is that of the defendant, it does not inexorably follow that no one else will have touched that object.
40. On the other hand, the authorities also establish that that DNA evidence in conjunction with other evidence pointing against the defendant can be very compelling - see the statement of principle by Phillips LJ in Doheny and Adams. See also the reasoning of the Court of Appeal in Darnley.
41. Fortified by this review of the authorities we must now revert to the present case. In our view, the bad character evidence against the appellant was properly admitted. As Mr Cox for the prosecution has pointed out, the method of burglary used at the Swindon supermarket was a most unusual method. It is not unique. There have been other occasions when burglaries have been carried out by that means but it is certainly an unusual method of stealing from shops.
42. Mr Goodman submits that there is no evidence as to the precise frequency with which burglaries of this nature have been committed. We accept that. But the fact remains that this was an unusual method of committing burglary. It seems to us that it is very significant that the method of committing burglary at Swindon and the method of committing burglary at Bury St Edmunds were exactly the same. In our view, the evidence of the previous conviction was properly admitted. First, because it showed a propensity to commit this unusual form of burglary, which demanded some skill and dexterity. Secondly, it was properly admitted because it rebutted the suggestion of coincidence. The appellant in this case was giving to the jury an innocent explanation for the presence of his DNA on the ducting tape used in the burglary. The innocent explanation which he proffered was that other people who committed these sorts of crimes periodically visit his home. They might have popped into his shed and borrowed his ducting tape for that purpose. The jury obviously had to consider that innocent explanation but they must have been assisted in their consideration by evidence that the appellant had a previous conviction for committing burglary in precisely that manner.
43. There is indeed a stark similarity between the facts of Darnley and the issues in Darnley on the one hand, and the facts of this case and the issues in this case on the other hand. In Darnley the appellant was proffering an innocent explanation for the presence of his DNA on a handkerchief at the crime scene. In this case the appellant is proffering an innocent explanation for the presence of his DNA on ducting used in the commission of the crime. The explanations in both cases are, if not far-fetched, at least somewhat surprising. The jury is fully entitled to receive evidence of previous convictions of a similar nature to assist them in assessing that innocent explanation.
44. Therefore, the position in this case is that there was properly before the jury evidence of the appellant's previous conviction for the Swindon robbery and DNA evidence establishing, to a very high degree of probability, that the appellant had handled the ducting tape used in the offence.
45. In our view, that evidence was quite sufficient to go before the jury. We do not think that the Hanson principle is applicable to this case. In our view, the evidence of bad character was not bolstering a weak case. It was supporting a strong case essentially for the reasons stated by Elias LJ in paragraph 32 of Darnley.
46. Let us now draw the threads together. Mr Goodman on behalf of the appellant does not suggest that there was any shortcoming in the summing-up which would justify or call for quashing of the conviction. The appeal turns entirely upon whether there was a case to go before the jury.
47. Whilst expressing gratitude for the skilful arguments deployed by counsel on both sides, we are quite satisfied there was a proper case to go forward. The judge rightly rejected the submission of no case at the close of the prosecution evidence. We therefore dismiss this appeal.