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Richard Padley
Richard Padley

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Criminal Law Update - Early 2017 Edition – Criminal Evidence

The use of intermediaries came under scrutiny in the case of R v Rashid [2017] EWCA Crim 2 and whether an intermediary should have been granted for the entirety of the trial. Practitioners should be readily aware of the distinction between an intermediary being required for the entirety of their client’s trial and part of the trial. Courts are becoming increasingly reluctant to grant a trial for the entirety of a trial, as in the case in Rashid.

Until s33BA of the Youth Justice and Criminal Evidence Act 1999 comes into force the power to appoint an intermediary for a defendant giving evidence is found at common law. The judge at first instance will be required to assess the need for an intermediary at different stages of a trial and should not automatically assess the requirement as being for the entire trial. The court in Rashid noted that assistance to a defendant suffering from mental or other disability could generally be given simply through competent legal representation and good trial management. Clearly there will be circumstances where legal practitioners alone cannot provide the sort of assistance required be some defendants.

Defendants can require two distinct needs during trial – the first is general support, reassurance and calm interpretation of unfolding events. The second is skilled support and interpretation of evidence. It is the second that requires an intermediary. In Rashid it was outlined that courts, after determining the mental capacity of a defendant, must distinguish between what was necessary for the particular defendant. 

The role of the advocate in such a case was also considered in Rashid and for practitioners commonly dealing with defendants who require the assistance of an intermediary what the court said will come of no surprise. The use of short and simple questions, along with easy to use language and a neutral tone of voice was considered key.

Rashid considered that the circumstances where an individual would require an intermediary for the entire trial would be rare. Practitioners should be alert to the issues raised in this case and Judges should ensure that the position is reviewed throughout the trial and not just in its earliest stages.

The situation where DNA evidence was being relied upon by the Crown as sole and decisive was considered recently in the case of R v Tsekiri [2017] EWCA Crim 40. In this case the victim of a robbery had been pulled out of her car and had a gold necklace pulled from her neck. The Crown sought to rely upon DNA evidence found on the car handle of a victim of a robberyproducing a mixed result with the major contributor matching the appellant with a probability of 1 in a billion. The regular limitations of DNA had been explored, namely that the scientist could not say when it had been deposited, what the source component was or how the DNA had got on to the door handle.

The court in this case considered the recent authority of R v FNC [2016] 1 Cr App R 13 which had earlier considered that where it was clear that DNA had been directly deposited during the commission of a crime a very high DNA match with the defendant would be sufficient without more to give rise to a case to answer. Further the court considered an earlier case of Byron [2015] 2 Cr. App. R. 21 in which it was stated that where a moveable item with mixed DNA is solely relied upon this would not be sufficient to found a conviction. The court in Tsekiri considered Byron to be incorrect, with the comments surrounding the foundation of a conviction based on mixed DNA as nothing more than obiter – there was no sensible rationale for this as a principle. By analogy facial mapping evidence can be left before the jury for consideration of its merits. Consequently, the court considered that when DNA was left on an article found at the scene of a crime it can, without more, raise a case to answer. Whether it will depends on the facts of the case. The court considered the following matters relevant when considering whether there was a case to answer:

  1. Is there any evidence of another explanation for the presence of the Defendant’s DNA on the item other than involvement in the crime?

  2. Was the article associated with the offence itself?

  3. How readily movable was the article in question?

  4. Is there evidence of geographical association between the offence and the offender?

  5. Is the Defendant the major contributor (if mixed)?

  6. Is it more or less likely that the DNA profile was deposited by primary or secondary transfer?

There is no exhaustive list of factors, and each case will need to be considered on its own facts. But the court considered there was no evidential or legal principle which prevents a case solely dependent on the presence of the defendant’s DNA profile on an article left at the scene of a crime from being considered by a jury.  

Posted by Richard Padley on 06 March 2017 at 10:39