Neutral Citation Number: [2008] EWCA Crim 1890
 
No: 200706601/D1 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Friday, 18th July 2008
 
B e f o r e:

LORD JUSTICE GAGE

MR JUSTICE SILBER 
 
HIS HONOUR JUDGE RADFORD 
(Sitting as a Judge of the CACD)
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R E G I N A 

v 

ALAN IAN GRANT 
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Miss s Dodd appeared on behalf of the Appellant
Mr D Kerr appeared on behalf of the Crown
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J U D G M E N T
1.	LORD JUSTICE GAGE:  This appellant, Alan Ian Grant, was convicted at Liverpool Crown Court on 21st November 2007 of two offences.  They were robbery, count 1, and possessing a firearm at the time of committing the offence, count 2.  He was sentenced in respect of those offences to 7 years' imprisonment less 175 days which he had spent on remand in respect of count 1 and 2 years' imprisonment concurrent in respect of count 2.  The total sentence therefore was 7 years' imprisonment less 175 days.  The judge ordered forfeiture of a ball bearing firing handgun, pursuant to section 52(1) of the Firearms Act 1968. 
2.	The issue at trial was the identity of the robber.  The prosecution case depended on DNA evidence, connected with a balaclava helmet, which was discovered close to the premises that had been robbed, shortly after the robbery.
3.	The facts adduced in evidence by the prosecution were not in dispute.  They are as follows.  The robbery occurred at Ladbrokes Bookmakers, situated at Argyle Street in Birkenhead, on the evening of 17th April 2007.  A man entered the premises brandishing a firearm.  He was wearing a dark jacket, a cap and a homemade balaclava.  All these items of clothing together with gloves were very quickly recovered by police officers, after the robbery, from an alleyway next to the premises.  In addition they recovered cash bags and the majority of money which had been taken in the robbery.  They also found in a bin a firearm.
4.	The only identification of the offender who committed the robbery was that he had a local accent and blue eyes.  There was no relevant CCTV footage.
5.	Scientific tests were made on the balaclava helmet and they revealed the following.  There was a complete DNA profile which matched the DNA profile of the appellant.  The agreed scientific evidence of two experts, one instructed on behalf of the prosecution and on one of behalf of the defence was that the odds of it being someone unrelated to the appellant were estimated at one in one billion.  The testing, however, revealed the presence of a minor incomplete DNA profile of at least one other person.  It was agreed between the two experts that this evidence did not assist with the question as to whether the appellant or the other contributor or contributors to the DNA on the balaclava wore the item at the time of the robbery.  It was not possible to age the DNA.  It was not possible to determine which DNA deposit was made first and it was not possible to determine whether the DNA attributed to the appellant was from skin, saliva or some other part of the body or material.  There was no attempt made by the experts to examine the complete balaclava.  
6.	The prosecution expert, Mr Doyle, made a number of assumptions in order to conduct his enquiry.  He assumed that the balaclava was being worn with the wider portion towards the bottom of the face, and that it was being worn with the inside of the garment next to the face.  Mr Doyle accepted these assumptions may have been erroneous.  The area of the balaclava that was examined was the part that he assumed would cover the nose and mouth area of the robber.  No test was made for the presence of saliva.  It was accepted by Mr Doyle that, had other areas of the Balaclava been tested, further DNA profiles might have been obtained.
7.	On behalf of the appellant it is submitted that the essence of the agreed scientific evidence amounted to this. First, there was DNA of more than one person on the balaclava.  Secondly, that it was not possible to determine how or when the DNA had been deposited, and thirdly, it was therefore not possible to say which contribution to the DNA was deposited at the time of the robbery.  It was accepted by Mr Doyle that the balaclava could have been worn by someone at the time of the robbery and that their DNA either had not been recovered or was not deposited in the balaclava.  
8.	At the close of the prosecution case the appellant, having declined to answer any questions asked of him at interview, counsel for the appellant submitted to the judge that there was no case to answer and that the case should be stopped.  That application was rejected by the judge and the case proceeded.
9.	The appellant gave evidence.  His evidence was that on the day when the robbery had taken place, he was moving between his mother's and grandmother's houses and he would have been at one stage or other at either of these houses.  Neither of them was close to the bookmakers.  The first time he said that he saw the balaclava was in court.  He said that he did not own a sweater with an arm cut off.  It appeared that the balaclava had been fabricated from a part of the arm of a sweater.  He said that he did not tend to wear other people's clothes but might lend his clothes to other people.  When he finished with his clothes he either gave them to his younger brother or to his mother who took them to a charity shop.  His case was that he did not commit the robbery.
10.	The single ground of appeal in this case is that the judge ought to have stopped the case at the close of the prosecution evidence.
11.	The prosecution today, before us, submit that there was sufficient evidence for the judge properly to conclude that case should go to the jury and that the verdict was safe.
12.	In his skeleton argument Mr Kerr, and in his oral submissions, submits to us that the fact that the only complete DNA was the appellant's is significant.  He submits that the fact that the other DNA material found on the balaclava was partial DNA, shows that there was evidence that, at the place where one would expect DNA to be found from someone who was wearing the balaclava helmet, was in and around the nose and mouth.  Accordingly, it is submitted, that that provides sufficient evidence for the matter to go to the jury and the subsequent evidence and submissions were matters for the jury to consider.  Accordingly it is submitted that the verdict of the jury was safe.  
13.	In our judgment, the judge was wrong to reject the submission at the close of the prosecution case.  The fact of the matter is that there was on the balaclava DNA material from two different people, possibly more than two different people.  From that evidence, it seems to us that it was always going to be impossible for the prosecution to satisfy the jury, so that they were sure, that this appellant was the man who was wearing the balaclava at the time that the robbery was committed.  For instance, suppose the prosecution was able to identify that the other person whose partial DNA was on the balaclava, and he or she was arrested, it would not be possible without more to identify with certainty which of the two committed the robbery.  That was a problem, or a hurdle which the prosecution always faced and, it seems to us, that that difficulty provides the answer to this appeal. 
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.
15.	In the circumstances, having reached the conclusion that the case ought to have been stopped at the close of the prosecution, in our judgment, this appeal must be allowed and the conviction quashed.