Neutral Citation Number: [2013] EWCA Crim 1294
Case No: 2012/5253/C1 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Friday, 28 June 2013
 
B e f o r e:

LORD JUSTICE ELIAS 

MR JUSTICE MACKAY 
 
SIR RODERICK EVANS 
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 R E G I N A 

v 

ROBERT OGDEN
 
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Miss M O'Gunleye appeared on behalf of the Appellant 
Mr M Hooper appeared on behalf of the Crown 
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 J U D G M E N T 
1.	LORD JUSTICE ELIAS:  On 1st August 2012 the defendant was convicted of one offence of burglary.  He was sentenced by Mr Recorder Haar QC on the same day to 12 months' imprisonment suspended for two years with one requirement of a curfew for one month.  He now appeals against conviction by leave of the single judge.  The sole ground is that the judge wrongly rejected a half‑time application for the case to be withdrawn from the jury on the grounds that there was insufficient evidence to sustain a conviction.
2.	The prosecution case at trial comprised a number of statements and a number of highly relevant admissions made pursuant to section 10 of the Criminal Justice Act 1967.  The background was this.  Between 10.00 in the morning and 5.00 in the afternoon on 12th December 2011, a house was burgled at Gunner Lane, Woolwich.  A number of electrical items were stolen.  The burglar gained entry via a window.  On the floor in front of the smashed window a scarf had been left.  The scarf did not belong to either of the occupants and the only reasonable inference was that it must have belonged to the burglar.  
3.	The scarf was examined by the prosecution.  There were two small areas of blood, only one of which however was tested.  It was accepted that the blood matched the profile of the defendant with a one in a billion probability of it belonging to someone else unrelated to him.  There were a number of admissions before the jury in relation to this forensic evidence.  They included the fact that it was not possible to date the DNA.  It was therefore possible that another person had carried the scarf to the scene of the burglary, the defendant's DNA already being on it.  It was not possible either to say how the DNA came to be on the scarf, whether it was by direct contact with somebody or by airborne droplets.  There was no independent evidence that the burglar had cut himself on the window.  It was agreed that the remainder of the scarf had not been tested and nor, as we have said, was the other patch of blood.  
4.	Prior to the trial, defence counsel became aware that the scarf had in fact been accidentally destroyed and the officer in charge only found this out following a request from the defence to be allowed to test the scarf for DNA.  Of course that meant that the defence was not able to follow up the possibility that there may have been the DNA of somebody else found on the scarf, or perhaps on the other blood sample.
5.	This DNA evidence was the only evidence against the appellant.  At one point it was thought that his mother might come and give evidence against him for the prosecution, but that did not happen.  He in fact gave a full account in interview without the assistance of a lawyer.  He said he had no idea how the DNA came to be on this scarf.  He did not believe the scarf belonged to him because he did not wear scarves.  He said that he had been at home preparing for Christmas at the time in question.  He remembered the occasion because certain relatives of his had failed to turn up for dinner.  He did not, however, give evidence at the trial itself and there is no complaint about the learned judge's summing‑up.
6.	At the close of the prosecution case a submission of no case had been made relying on the second limb in Galbraith.  It was said that the evidence was insufficient in the absence of any other circumstantial evidence to justify a conviction of this defendant.
7.	The learned judge was not persuaded by that submission.  He said this:  
"It seems to me that the discovery of that scarf in the burgled premises with Mr Ogden's blood on it does in practical terms call for an explanation.  Certainly a jury, if no further evidence is given, would be entitled to reach a verdict of guilty.  Maybe some juries would, some juries would not but that is entirely within the domain of the jury and so the application is dismissed."  
Counsel says that this ruling was wrong.  She relies in particular upon two authorities.  In Lashley [2000] EWCA Crim. 88 the sole evidence against an appellant was DNA found on a cigarette left at the scene of the crime.  It was accepted that there would be between seven and ten males in the United Kingdom to whom this profile related.  There was no other evidence before the jury linking the defendant to the crime.  This court found that the judge ought to have acceded to submissions at the close of the prosecution case that the case should be withdrawn from the jury.  In the course of giving judgment, the Vice President, Kennedy LJ, referred to certain observations of Phillips LJ (as he then was) in the case of Doheny and Adams [1997] 1 Cr. App. R. 369 where Phillips LJ had said this at page 372: 
"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 UK with a matching DNA should have been in the vicinity of the crime will seem almost incredible 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."  
Accordingly in an appropriate case the additional evidence need only be very limited, but there must be some independent evidence establishing a nexus between the defendant and the crime.  
8.	The second authority relied upon was R v Grant [2008] EWCA Crim. 1890.  This concerned DNA found on a Balaclava left at the scene of a robbery.  Again, there was a probability of a one in a billion that it was DNA matching someone other than the appellant.  In substance the argument advanced in that case was exactly the same as that advanced here.  There was no other independent evidence which could be relied upon by the prosecution to establish guilt.  The experts were unable to say how the DNA was deposited on the balaclava and as in this case it was possible that it had been taken to the scene by somebody else.  The appeal against conviction was successful and it should be noted in that case in fact there had been a no comment interview.  By contrast here the appellant had, as we have said, given a full interview.
9.	We have no doubt that in the light of those authorities the judge was wrong in this case not to accede to the half time application.  The prosecution accept that that was the case.  It was perhaps unfortunate that the judge was not referred to the authority of Grant in particular which is very similar to the facts of this case.  There was no case that could properly have been left to the jury.  Therefore the conviction has to be quashed.