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Session 2000-01
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Judgments - Attorney General's Reference No. 3 of 1999


Lord Steyn Lord Cooke of Thorndon Lord Clyde Lord Hutton Lord Hobhouse of Wood-borough






My Lords,

    The question of law referred to the House of Lords by the Court of Appeal involves an important point on the proper construction of section 64(3B) of the Police and Criminal Evidence Act 1984 (PACE).

I. The Narrative

    In the early hours of the morning of 23 January 1997, in London, a man climbed over a garden wall and forced open a ground floor window of a terraced house. The owner of the house was a 66-year-old woman. The burglar went to her bedroom. He threatened her. He punched her several times. He then tied her hands behind her back with flex. He raped her anally. He pushed her into a hallway cupboard and blocked the door to the cupboard with heavy items. After taking money and other items the burglar left. At 7pm that day the Police found the victim in the cupboard. The ordeal of the woman was horrendous and the offence of rape was of the utmost gravity.

    The victim was medically examined and swabs were taken from the areas around her vagina and anus. On 17 March 1997 semen was found on both the swabs. On 20 March 1997 a DNA profile was obtained from the semen. On 15 April 1997 the DNA profile was placed on the national DNA database.

    On 4 January 1998 the police arrested and charged the defendant with an unrelated offence of burglary. At the time of his arrest the defendant gave a false name to the police. A saliva sample was lawfully taken from the defendant without his consent. The sample was obtained in connection with the arrest for the burglary alone under section 63(3A) of PACE. If the defendant had given his real name to the police they would have discovered that his previous convictions included one for affray. That conviction would have permitted the police to obtain a DNA sample which would have justified the retention of the sample whatever the fate of the burglary charge. In any event, on 12 May 1998 the sample taken from the defendant was submitted for DNA profiling.

    On 23 August 1998 the defendant was acquitted of the offence of burglary, that is the offence for which he had been arrested on 4 January 1998. It is formally conceded on behalf of the Attorney-General that under section 64(1) of PACE the sample should have been destroyed as soon as it was practicable after the defendant's acquittal. It was not destroyed and information derived from it, namely the DNA profile, remained on the DNA data base. On 6 October 1998 a match was made between the DNA profile obtained from the swabs taken from the victim and the DNA profile obtained from the saliva taken from the defendant.

    Relying on the match between the two DNA profiles, the police arrested the defendant on 15 October 1998 in respect of the offences committed against the elderly victim in January 1997. In the course of an interview the defendant denied that he was involved in the offences. He refused to give his consent to the taking of an intimate sample. A police superintendent authorised the taking of a non-intimate sample of plucked head hair. On 18 October 1998 a forensic science laboratory confirmed that a DNA profile obtained from the plucked hair taken from the defendant matched the DNA profile on the swabs taken from the victim. In the opinion of the forensic scientist the frequency of the occurrence of obtaining such a match, if the DNA on the swabs had come from a person unrelated to the defendant, was one in 17 million. The defendant was charged with burglary, assault and rape.

II. Section 64 of PACE

    The question was what impact the failure to destroy the sample had on the case against the defendant. The courts below were principally concerned with the interpretation of section 64(1) read with section 64(3A) of PACE. Subsection 1 of section 64 is to the following effect:

    "If -


      fingerprints or samples are taken from a person in connection with the investigation of an offence; and


      he is cleared of that offence,

      they must, except as provided in subsection (3A) below, be destroyed as soon as is practicable after the conclusion of the proceedings."

Subsections (2) and (3) make corresponding provision for cases where it is decided not to prosecute and where the person concerned is not suspected of having committed an offence. Subsection 3(B) provides as follows:

    "Where samples are required to be destroyed under subsections (1), (2) or (3) above . . . information derived from the sample of any person entitled to its destruction under subsection (1), (2) or (3) above shall not be used -


      in evidence against the person so entitled; or


      for the purposes of any investigation of an offence."

The reference before the House involves the interpretation of part (b) of this provision.

III. The trial

    The prosecution case depended solely on DNA evidence. It is however, necessary to distinguish between the two samples taken from the defendant. Information derived from the sample taken on 4 January 1998 led to the defendant's arrest on 15 October 1994 which in turn led to the taking of a new sample from the defendant. At the trial the prosecution did not adduce evidence relating to the 4 January 1998 sample. The prosecution relied solely on the match between the DNA profile of the sample taken on 15 October 1998 from the defendant and the DNA profile obtained from the swabs taken from the victim.

    It was conceded by the prosecution before the judge that under section 64(1) of the PACE the saliva sample taken on 4 January 1998 should have been destroyed after his acquittal on the unrelated burglary charge; that such information was used in the investigation of an offence in contravention of section 64(3B)(b); and that this led to the arrest of the defendant on 15 October 1998.

    The defence submitted that the evidence based on information derived from the sample of the 15 October 1998 was rendered inadmissible by the mandatory terms of section 64(3B). The prosecution submitted that section 64(3B)(b) was merely of directory effect. The judge ruled that the provision was mandatory and that the evidence tendered by the prosecution was inadmissible. But the judge also concluded that, if, section 64(3B) was merely of directory effect, he would have had to exercise his discretion under section 78 of PACE to exclude the DNA evidence. Given these conclusions the prosecution case collapsed and despite what the Court of Appeal subsequently described as 'compelling evidence,' the judge directed a verdict of not guilty.

IV. The Court of Appeal

    The Attorney-General referred the matter to the Court of Appeal. He acted under section 36 of the Criminal Justice Act 1972. The question referred was as follows:

    "Where a sample of DNA is lawfully taken from an accused in respect of offence A (of which offence the accused is subsequently acquitted), and information derived from the sample suggests that the accused is guilty of offence B, does a Judge have a discretion to permit a prosecution to proceed against the accused for offence B, notwithstanding the terms of section 64(3B) of the Police and Criminal Evidence Act?"

The question raised an issue of the admissibility of evidence which depended on the proper construction in its contextual setting of section 64(3B)(b) of PACE. The Court of Appeal answered this question in the negative.

    The judgment of the Court of Appeal is reported: Attorney-General's Reference (No. 3 of 1999) [2000] 3 W.L.R. 1164. The court attached considerable importance to paragraphs 34, 35 and 36 in the report of the Royal Commission on Criminal Justice (1993) (Cm. 2263), pp. 16-17: see 1179G-1180H. In evaluating this material the court had the advantage that one of its members (Rafferty J.) had been a member of the Royal Commission. Giving the judgment of the court Lord Justice Swinton Thomas observed (at 1182C-G):

    "The words of the section are clear. In our judgment, the provisions contained in section 64(3B)(a) and (b) stand together. We do not accept Mr. Perry's submission that if Parliament had intended to exclude the exercise of a judge's discretion, it would have said so. In our judgment, on the contrary, if Parliament had intended that a judge should have a discretion in the circumstances envisaged in section 64(3B)(a) or in (3B)(b), Parliament would have said so. It would have been perfectly possible for Parliament to conclude that the fight against crime was so important that there should be no restriction on the use of DNA samples, so that where such samples were lawfully obtained by the police the information derived from them could be retained on a database for all purposes. It would have been equally possible for Parliament to enact that whilst information derived from samples taken from persons cleared of involvement in offences should not normally be used for the investigation of other offences the investigating authorities should have a discretion to use that information for the purposes of a further investigation in exceptional circumstances only. Parliament could have enacted that the information should not be used for the purpose of an investigation of an offence subject to the discretion of the court to permit such use if in the circumstances the court thought it right to do so. Parliament did not choose to take any of those courses. Indeed a discretionary power such as envisaged above would have rendered virtually nugatory the plain intention of Parliament that samples should be destroyed and information obtained from them not used after one or other of the events set out in section 64(1) to (3).

"Section 64(3B) expressly and without qualification forbids the use of the sample which is required to be destroyed either in evidence or for the purposes of any investigation. It is plainly mandatory and not directory. If the sample, which includes the profile, is used for the purposes of an investigation, then all evidence resulting from that investigation must be excluded. Accordingly, in our judgment, Judge Hitching was right to rule as he did on admissibility, and it is not necessary for the court to consider his ruling under section 78."

Towards the end of this judgment Lord Justice Swinton Thomas referred to the case of Reg. v. Weir (unreported, 26 May 2000) which was heard by the Court of Appeal together with the reference in the instant case. In Weir's case the appellant was convicted of a particularly brutal murder on what Lord Justice Swinton Thomas also described as compelling DNA evidence. Applying the reasoning in the judgment on reference to the House the Court of Appeal felt compelled to quash the conviction. In giving judgment in the case of Weir the Court of Appeal observed:

    ". . . the Royal Commission plainly intended that a balance should be struck between the interests of the State and the interests of the citizen and, following those recommendations, Parliament struck the balance as they did, and enacted that information derived from the sample of the person entitled to its destruction shall not be used in evidence against the person so entitled or for the purposes of any investigation of an offence. It is, in our judgment, impossible, either in relation to the section itself or in endeavouring to ascertain the intention of Parliament to draw a distinction between subsection (a) and subsection (b) so as to exclude the exercise of the Judge's discretion in (a) but to say that such a discretion exists in relation to (b). In our judgment the court has no discretion in respect of either."

Turning back to the judgment in the case directly under consideration, the Court of Appeal did not deal with the alternative basis of the judge's decision, namely the judge's view that, in any event he would have had to exclude the DNA evidence under section 78 of PACE.

V. The question before the House:

    The Court of Appeal referred the very question upon which it had been called to rule to the House. Whatever the opinion of the House on this question the acquittal of the defendant stands. It is necessary therefore to consider the point about the correct interpretation of section 64(3B) not only in the light of the facts of the present case but also in the context of other cases which may arise. It was agreed between counsel that the House was not called upon to travel beyond this point, notably we are not asked to consider the correct approach of a judge in dealing with such an issue under section 78. For the avoidance of doubt, and with due respect to the judge, I would emphasise that nothing I say must be regarded as an endorsement of his reasoning on this aspect.

VI. The interpretation of section 64(3B)

    My Lords, I acknowledge at once that reasonable minds may differ as to the correct interpretation of a subsection which has no parallel in PACE or any other statute. Nevertheless, there do seem to be secure footholds which may lead to a tolerably clear answer. It is not along the route adopted by the prosecution of asking whether the relevant provision is mandatory or directory. In London and Clydeside Estates Ltd. v. Aberdeen District Council [1980] 1 W.L.R. 182, and 188-190, Lord Hailsham of St Marylebone L.C. considered this dichotomy and warned against the approach "of fitting a particular case into one or other of mutually exclusive and starkly contrasted compartments." In R. v. Immigration Appeal Tribunal, ex parte Jeyeanthan [1999] 3 All. E.R. 231, at 237A-B, Lord Woolf, M.R. now Lord Chief Justice, echoed this warning and held that it is "much more important to focus on the consequences of the non-compliance." This is how I will approach the matter.

    It is, of course, clear that after the acquittal of the defendant the sample should have been destroyed. In imperative terms section 64(1) provides that it "must" be destroyed. The existence of the duty to destroy the sample and its breach is merely the starting point. It does not provide the answer to the precise point before the House. The question before us relates to the consequences of the breach of the duty to destroy a sample which should have been destroyed by reason of the provisions of section 64(1). Subsection (3B) is in two parts. Subsection (3B)(a) unambiguously spells out of the legal consequences of a breach of the obligation to destroy a sample: it may not be used in evidence against the person entitled to its destruction. So far the provision is perfectly clear.

    The problem arises in regard to the second part of subsection (3B), which provides that samples which are required to be destroyed "shall not be used . . . (b) for the purposes of any investigation." The difference between parts (a) and (b) is striking. Part (a) legislates for the inadmissibility in evidence against the person concerned of the sample that should have been destroyed. By contrast part (b) contains no language to the effect that evidence obtained as a result of the prohibited investigation shall be inadmissible. It does not make provision for the consequences of a breach of the prohibition on investigation. This does not mean that this particular prohibition is toothless. On the contrary, it must be read with section 78(1) of PACE. It provides as follows:

    "In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

    (My emphasis)

In other words, there is in the very same statute a discretionary power in the trial judge, in the face of a breach of part (b) of subsection (3B), to exclude the evidence if it would be unfair to admit it.

    Counsel for the respondent submitted that parts (a) and (b) of subsection (3B) must stand together. In other words, because (a) provides for the inadmissibility of evidence, (b) must have a like meaning. That is how the Court of Appeal also reasoned. But, with due respect, this is too simplistic. It does not address the critical difference that part (a) expressly provides for the consequences of a breach but that part (b) does not. It also does not meet the point that no verbal manipulation of (b) is required if it is simply read together with section 78.

    Counsel for the respondent, like the Court of Appeal, thought that certain paragraphs of the report of the Royal Commission supported the construction that subsection (3B)(b) creates an absolute bar to the admissibility of the fruits of a prohibited investigation. If it had done so, it could not have prevailed over the plain language of the statute. But the report yields no such support. It does record in emphatic language the recommendation that after an acquittal a sample must be destroyed. But the report does not address the precise point of statutory construction before the House.

    Counsel for the respondent was further compelled to concede that the construction adopted by the Court of Appeal leads to absurd consequences. Counsel for the Attorney-General gave the following illustration. The police receive information from a forensic laboratory that X appears to have been responsible for a number of serial murders. The source of the information is derived from a sample which ought to have been destroyed pursuant to section 64(1) of PACE. The police can do nothing until a further crime is committed. Even a consequential confession by X or discovery of the murder weapon in the house of X could not be used. But one does not have to resort to hypothetical examples: on the interpretation of the judge and the Court of Appeal a case involving evidence of a very serious rape could never reach the jury and in Weir a conviction for a brutal murder was quashed on the ground that the DNA evidence should not have been placed before the jury. It must be borne in mind that respect for the privacy of defendants is not the only value at stake. The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public. In my view the austere interpretation which the Court of Appeal adopted is not only in conflict with the plain words of the statute but also produces results which are contrary to good sense. A consideration of the public interest reinforces the interpretation which I have adopted.

VII. Implication

    Somewhat reluctantly counsel for the respondent sought in the alternative to support the conclusion of the Court of Appeal on the basis of implying words in subsection (3B). The suggested implication involves, as my noble and learned friend Lord Cooke of Thorndon elicited, the addition at the end of part (b) of the words "nor shall evidence of the results of any prohibited investigation be admissible." The difficulty in this approach is obvious. If one reads section 64(3B)(b) together with section 78 the statute is entirely workable without any implication. Moreover, the implication would result in a meaning which would be productive of absurd results which are contrary to the public interest. The suggested implication is unnecessary and unwarranted.

VIII. The Human Rights Act 1998

    On the supposition that on ordinary principles of construction section 64(3B)(b) does not provide that the evidence obtained as a result prohibited investigation is always inadmissible, counsel for the respondent argued that the incorporation of the European Convention of Human Rights by the Human Rights Act 1998 now compels the interpretation for which she contends. Counsel relied in the first place on article 8 of the Convention. Article 8 reads as follows:

    "1. Everyone has the right to respect for his private and family life, his home and his correspondence.

    2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Counsel submitted that, because a sample must be destroyed after an acquittal, it cannot ever be "in accordance with the law" to admit in evidence the results of a prohibited investigation. The question whether it meets this requirement is the very issue of interpretation which the House has to decide. If the construction I have adopted is correct "the interference" is "in accordance with law," the critical point being that admissibility is governed by judicial discretion under section 78. And "the interference," so qualified, is plainly necessary in a democratic society to ensure the investigation and prosecution of serious crime. There is plainly no breach of article 8.

    In the alternative, counsel in her printed case relied on article 6. In oral argument she expressly abandoned this argument. That was not surprising. Article 6 provides inter alia that in the determination of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Under the general law the trial judge has adequate powers to ensure fairness: (1) he has jurisdiction to stay the proceedings as an abuse of the process and (2) he has a discretion to exclude evidence under section 78 if it would be unfair to admit the evidence "having regard to all the circumstances, including the circumstances in which the evidence was obtained." If trial is allowed to proceed, and the evidence is not excluded, the accused will have a full opportunity to contest the reliability and accuracy of the DNA evidence. In any event, the question of admissibility is a matter for regulation under national law. There is no principle of Convention law that unlawfully obtained evidence is not admissible: Schenk v. Switzerland (1988) 13 E.H.R.R. 242, at para. 46, pp. 265-266; R. v. Khan (Sultan) [1997] A.C. 558. I would therefore reject the argument under this heading.

    It follows that the law as I have stated it is fully compatible with the relevant Convention rights. The interpretative obligation under section 3 of the Act of 1998 is not in play.


    I would therefore rule that the Court of Appeal's rulings in the reference, as well as in the appeal of Weir, were wrong and accede in substance to the argument presented on behalf of the Attorney-General. On the other hand, the question formulated by the Attorney-General is too compressed and contains no reference to section 78. It is, however, unnecessary to redraft it since the correct position is clearly stated in the opinions of the House.


My Lords,

    Having had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn, I am in complete agreement with it. In particular I wish to be associated with his invocation of the approach of Lord Hailsham of St. Marylebone L.C. in London and Clydeside Estates Ltd. v. Aberdeen D.C. [1980] 1 W.L.R. 182, 188-190, which had the agreement of Lord Wilberforce in that case and has been echoed by Lord Woolf in R. v. Immigration Appeal Tribunal, ex parte Jeyeanthan [1999] 3 All E.R. 231, 236-239.

    In the present case I think that the Court of Appeal fell into the trap (and they were in good company in doing so) of treating the issues to be resolved according to whether section 64(3B)(b) of the Police and Criminal Evidence Act 1984 should be classified as mandatory or directory. That it is in ordinary language mandatory there can be no doubt. In clear terms it provides that certain categories of samples required to be destroyed shall not be used for the purposes of any investigation of an offence. Use in breach of this prohibition is plainly unlawful. But paragraph (b), in contrast with paragraph (a), does not go on to provide that, in the event of such unlawful use, the results of the investigation shall not be admissible in evidence against the person who was entitled to the destruction of the sample. Nor does it provide that an unlawful investigation shall be null and void or deemed never to have occurred - provisions which would indeed read rather oddly in relation to an investigation. So far as the law of evidence is concerned, any remedy for the unlawfulness is to be found in section 78(1) of the same Act. It is to be noted that the terms of section 78(1) show that the fairness of the proceedings is a wide concept and extends to the circumstances in which the evidence was obtained.

    It may be worth adding that just as in European Community law, as Lord Steyn has pointed out, there is no principle that unlawfully obtained evidence is not admissible, so there is no such general principle in Commonwealth countries. Approaches differ somewhat among the jurisdictions. Thus in Canada evidence obtained in breach of the Charter will be excluded if its admission is likely to bring the administration of justice into disrepute (R v. Collins [1987] 1 S.C.R. 265) ; in Australia the leading cases recognise a judicial discretion in which the competing demands of the public interest in the prevention and punishment of crime, on the one hand, and fairness to the accused, on the other, have to be weighed (Bunning v. Cross (1978) 141 C.L.R. 54; Ridgeway v. The Queen (1995) 184 C.L.R. 19); and in New Zealand, while it has long been held that the judicial discretion to exclude unfairly obtained evidence is wider than that recognised in England at common law in R v Sang [1980] A.C. 402 and Kuruma v. The Queen [1955] A.C. 197, a line of cases has treated evidence obtained in breach of the semi-constitutional provisions of the Bill of Rights as prima facie inadmissible but subject to exceptions created by the overriding demands of justice. (Howden v. Ministry of Transport [1987] 2 NZLR 747; R v. Grayson and Taylor [1997] 1 NZLR 399). The cases in the various jurisdictions on this pervasive and perennial problem are legion. I have cited only a handful. The point of present significance is simply that, apart from express statutory provisions, nowhere in the Commonwealth does there appear to be any remorseless principle of the exclusion of evidence unlawfully obtained. In the instant case there is in paragraph (b) no such express statutory provision; and in my view, it would be astonishing if Parliament had intended the evidence eventually tendered to have been ruled out.