Factual and Procedural Background
On 13 May 2003, the complainant was travelling to work on a crowded underground train when she experienced unwanted physical contact from a man behind her, who ejaculated semen onto her trousers. The complainant reported the incident to the police the following day and provided her trousers as evidence. DNA testing identified semen stains, but no match was found on the database at that time. Over ten years later, in March 2014, the defendant was arrested on an unrelated matter, and his DNA profile matched the semen found on the complainant's trousers with a probability of one in a billion.
The prosecution intended to rely on the complainant's account, the DNA match, and the defendant's interview. However, no evidence was presented regarding the defendant’s whereabouts in 2003, his employment, or family connections. Before evidence was called, the defendant made a submission of no case to answer based on prior case law concerning DNA evidence. The Crown Court recorder accepted this submission, ruling there was no case to answer due to lack of other evidence linking the defendant to the offence beyond the DNA profile.
The prosecution appealed the ruling under section 58 of the Criminal Justice Act 2003.
Legal Issues Presented
- Whether DNA evidence alone, particularly with a high match probability, is sufficient to constitute a case to answer in a criminal prosecution.
- The applicability of section 34 of the Criminal Justice and Public Order Act 1994 regarding adverse inferences from the defendant’s failure to answer questions.
- The relevance and weight of prior case law concerning DNA evidence found on articles left at crime scenes versus DNA directly deposited during the commission of an offence.
Arguments of the Parties
Prosecution's Arguments
- The extremely low probability of the DNA match (one in a billion) distinguished this case from previous authorities where DNA evidence alone was insufficient.
- The defendant’s failure to answer questions in interview could, on appeal, justify an adverse inference of guilty knowledge under section 34 of the Criminal Justice and Public Order Act 1994.
- There was sufficient evidence, including the DNA match and the complainant’s account, to raise a case for the defendant to answer.
Defendant's Arguments
- Based on prior case law (R v Lashley, R v Grant, R v Ogden), DNA evidence alone was insufficient to establish a case to answer.
- The recorder correctly accepted the submission of no case to answer given the absence of additional evidence linking the defendant to the offence.
- The prosecution had not provided evidence about the defendant’s presence in the UK in 2003 or other contextual information.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Lashley [2000] EWCA Crim 88 |
DNA evidence alone insufficient to establish a case where DNA was found on an item left at the scene and matched multiple individuals. |
Distinguished from the present case due to the high probability match and direct deposition of DNA during the offence. |
| R v Grant [2008] EWCA Crim 1890 |
DNA evidence on an item with mixed profiles insufficient to satisfy the jury beyond reasonable doubt. |
Applied to show that mixed DNA profiles undermine the sufficiency of DNA evidence alone. |
| R v Ogden [2013] EWCA Crim 1294 |
DNA evidence insufficient where connection to the crime was uncertain and evidence flawed. |
Used to support the principle that DNA evidence must be supported by additional evidence. |
| R v Adams (No 1) [1996] 2 Cr App R 467 |
DNA evidence is admissible and can be highly probative but requires contextual scrutiny. |
Confirmed that DNA evidence alone is not inherently insufficient but must be assessed with all evidence. |
| R v Adams (No 2) [1998] 1 Cr App R 377 |
Jury should assess DNA evidence alongside all other evidence; DNA evidence alone can support conviction when properly contextualized. |
Guided the court’s approach to assessing DNA evidence in the present case. |
| R v Sampson & Kelly [2014] EWCA Crim 1968 |
DNA directly deposited during the commission of an offence with a very high match probability can be sufficient to raise a case to answer. |
Distinguished from cases involving DNA found on articles left at the scene; supported allowing the appeal and trial. |
| R v Bryon [2015] EWCA Crim 997 |
DNA evidence on an item with mixed profiles insufficient alone; additional evidence required to uphold conviction. |
Reinforced the principle that DNA evidence must be considered with other evidence. |
| R v Webber [2004] 1 WLR 404 |
Section 34 Criminal Justice and Public Order Act 1994 allows adverse inferences from failure to mention facts in interview under certain conditions. |
Clarified the limited circumstances under which adverse inferences may be drawn when determining a case to answer. |
| R v Hookway [1999] EWCA Crim 212 |
Expert evidence (facial mapping) can afford a case for jury consideration even if not scientifically definitive. |
Used to contrast with DNA evidence cases and to discuss evidential sufficiency. |
| R v Weighman [2011] EWCA Crim 2826 |
Case to answer determination with expert evidence on facial mapping from CCTV. |
Referenced in discussion but not directly applied in the present case. |
Court's Reasoning and Analysis
The court began by examining the procedural irregularity of the recorder ruling no case to answer before the prosecution had presented its evidence, noting this was erroneous but consented to by the prosecution and thus not grounds to allow the appeal. The court then analysed the DNA evidence in light of established case law, emphasizing that DNA evidence alone is not inherently insufficient to establish guilt but must be assessed in the context of all evidence.
The court distinguished earlier cases (Lashley, Grant, Ogden) where DNA was found on items left at the scene, often with mixed profiles or no evidence linking the defendant directly to the offence, from the present case where the DNA was directly deposited during the commission of the offence. The extremely low probability of the DNA match (one in a billion) supported the strength of the prosecution case.
The court also considered the defendant’s interview and the potential for adverse inferences under section 34 of the Criminal Justice and Public Order Act 1994, but found that given no prosecution witnesses had been called and no positive case had been put forward by the defence at that stage, the section was not applicable for drawing inferences at the no case stage.
Relying on the principles set out in R v Adams (No 2) and R v Sampson & Kelly, the court concluded that where DNA is directly deposited by the offender during the commission of the offence and matched with a very high probability, this is sufficient to raise a case to answer. The court noted that the defence would have the opportunity to challenge the evidence at trial, including presenting alibi or other evidence.
Finally, the court addressed arguments concerning facial mapping cases, rejecting suggestions that those principles conflicted with the treatment of DNA evidence, and noted the advances in DNA analysis techniques over the past decade.
Holding and Implications
The court allowed the prosecution appeal, holding that the recorder's ruling of no case to answer was WRONG IN LAW and that a trial should proceed before a Circuit Judge in the Crown Court.
The implication of this decision is that DNA evidence directly deposited during the commission of an offence, with an extremely high match probability, is sufficient to raise a case to answer, even in the absence of other corroborative evidence at the initial stage. The defence retains the opportunity to present exculpatory evidence at trial. The decision reinforces and clarifies the distinction between DNA found on items left at a crime scene and DNA deposited during the offence itself. No new precedent was established beyond the application and clarification of existing authorities.