Most practitioners who have had regular dealings with cases where the Police, following arrest, bring their client in for questioning, often in respect of drug-related offences, robbery, burglary and other offences suggesting evidence is present at the scene.
In many of those cases the evidence presented at the police station is that the client’s DNA has been found at the scene and therefore the client, according to the Police, must have been present. In many cases the presence of a client’s DNA goes unquestioned and often where there is supporting evidence as to presence, guilty pleas are entered at an early state.
However, all practitioners must take particular care with respect to DNA cases particularly in the light of R v Ogden 2013 EWCA CRIM1294.
In this case the only evidence against the accused was that DNA was recovered from an item discovered at the crime scene and it was on that sole piece of evidence that the originating court rejected a submission of no case to answer and directed the case before a jury.
The Court of Appeal, in considering this question, concluded that there could be no doubt that the client’s DNA was recovered from a scarf which was found at the scene.
It was accepted by all parties that the blood matched the profile of the defendant. However, there were a number of submissions, including that it was possible that another person had carried the scarf to the scene of the burglary with the defendant’s DNA already on it, and it was not possible to show how the DNA came to be on the scarf, whether it was by direct contact with somebody or by airborne droplets.
In quashing the conviction, the Court of Appeal stated the judge was wrong not to accede to the application to dismiss, and that where the sole evidence against the accused is DNA on an item recovered at the crime scene, there must be some independent evidence establishing a nexus between the defendant and the criminal offence committed.
The Court of Appeal did not say what additional evidence would be required, but that there should be some and, often in many cases, limited additional evidence would suffice.
This case is a reminder to all practitioners not to take Police at their word when they claim the client was present as there was DNA at the scene.
It is imperative that practitioners probe the Police before interview as to whether there is any further evidence before advising as to the approach to be adopted in interview and thereafter as to plea.
At Lewis Nedas Law we pride ourselves on a reputation of thoroughly testing the strength of the prosecution’s case before advising as to plea.
If you require further advice relating to the above, please contact us by either completing our online enquiry form or by calling us on 020 7387 2032.
