|Judgments - Attorney General's Reference No. 3 of 1999
Accordingly I agree that the reference should be disposed of as proposed by Lord Steyn.
I have had the opportunity of reading in draft the speech which has been prepared by my noble and learned friend Lord Steyn and I agree with the conclusion which he has reached for the reasons which he has given.
I agree in particular that this is not a case in which it is useful to adopt any technical distinction between mandatory and directory constructions. Indeed the present is a case where such an approach can be misleading and dangerous. The critical subsection, section 64(3B) of the Police and Evidence Act 1984, specifies two situations in which information derived from the sample "shall not be used". The same words govern the two situations set out as (a) and (b) respectively. It is then temptingly attractive to concentrate upon the word "shall" and by giving it a single classification, either mandatory or directory, determine the effect of the two provisions which follow, so far as the admission of evidence is concerned, in a way which must be the same in respect of each of the two situations. But if that approach is rejected one is free to ask in respect of each separately what the effect of the particular obligation is to be. This is not to hold that the word "shall" has at the same time two different meanings. It has the constant meaning of imposing obligations. But the effect of each particular obligation, particularly where the possibility of a failure in compliance arises, may be different. I agree that while part (a) is complete in itself so far as a possible breach is concerned, a breach of part (b) is to be regulated by reference to section 78.
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn and I gratefully adopt his account of the statutory background and the events and proceedings which have given rise to the present reference to this House.
Section 64(3B) of the Police and Criminal Evidence Act 1984 (PACE) provides:
The Crown did not seek to adduce in evidence the sample taken from the defendant on 4th January 1998 when he was charged with burglary and which should have been destroyed as soon as was practicable after his acquittal on that charge pursuant to section 64(1) of PACE which provides:
But the sample taken on 4th January 1998 was used to make a match on 6th October 1998 between the DNA profile obtained from that sample and the DNA profile obtained from the swabs taken from the victim of the offences of rape, burglary and assault committed on 23rd January 1997. This investigation led to the arrest of the defendant on 15th October 1998 in respect of those offences and on 15th October 1998 a sample of plucked head hair was taken from him, which was the sample which the Crown wished to use in evidence against him. Therefore the sample taken on 4th January 1998 was used, in breach of the prohibition contained in section 64(3B)(b), for the purposes of an investigation into the offences of rape, burglary and assault committed on 23rd January 1997.
The principal submission advanced by Mrs. Poulet Q.C. on behalf of the defendant before the Crown Court Judge and the Court of Appeal was that section 64(3B)(b) by its express words prohibited the Crown using in evidence against the defendant the sample taken on 15th October 1998, and in support of that submission Mrs. Poulet further submitted that sub clause (b) of section 64(3B) cannot be detached from sub clause (a) of that sub section but must be read together with it, so that as sub clause (a) prohibited the use of evidence derived from the sample which should have been destroyed, sub clause (b) must be read as prohibiting the use of evidence resulting from an investigation arising from that sample. This submission was accepted by the Court of Appeal, Swinton Thomas L.J. stating  3 WLR 1164, 1182:
My Lords I consider, with respect, that the Court of Appeal erred in accepting this submission. In my opinion section 64(3B)(b) prohibits the sample liable to destruction from being used for the purposes of any investigation of the offences committed on 23rd January 1997, but it does not prohibit evidence resulting from such an investigation from being used in criminal proceedings in respect of those offences.
The wording of sub clause (a) by its express words does prohibit the use in evidence of information derived from a sample which should have been destroyed but, in contrast, sub clause (b) is silent as to the admissibility of evidence resulting from an investigation which it prohibits. Therefore, in my opinion, the issue which arises in a case such as the present one is whether evidence which has been unlawfully obtained, in that it arises from a line of investigation which has been prohibited, is inadmissible as a matter of law (as opposed to being subject to exclusion in exercise of the trial judge's discretion conferred on him by section 78 of PACE). On that issue the law is clear.
In Kuruma v. The Queen  A.C. 197, 203 Lord Goddard stated:
And in Fox v. Chief Constable of Gwent  A.C. 281, 292 Lord Fraser of Tullybelton stated:
Counsel for the defendant in advancing her submission based on the express words of section 64(3B)(b) relied on passages in the Report of the Royal Commission on Criminal Justice presented to Parliament in July 1993, but she also relied on those passages in support of the alternative submission which she advanced to this House that the words of sub clause (b) by necessary implication prohibited the admission of the evidence relating to the sample taken on 15th October 1998. It is clear that the Royal Commission intended to extend the scope of DNA testing but counsel submitted that the Royal Commission also intended that where a person had been acquitted, no evidence should be adduced against him resulting from an investigation arising from a sample taken from him in the course of investigating an offence of which he was subsequently acquitted, and counsel relied on the following passages in paragraphs 34, 35 and 36 of the Report:
It was submitted that the amendments to PACE, including sub section (3B) of section 64, followed closely the recommendations of the Royal Commission and that therefore, if the express words of sub section (3B) did not do so, it was a necessary implication that Parliament intended that evidence resulting from the prohibited investigation should not be admitted in evidence. My Lords, I am unable to accept that submission, because the Royal Commission did not consider the issue whether evidence resulting from a prohibited investigation should be automatically rendered inadmissible. Bearing in mind that the principle stated in Kuruma is a well established one, I would be slow to hold that in enacting the provisions of section 64(3B) Parliament intended to exclude automatically evidence resulting from a prohibited investigation, irrespective of the circumstances in which the evidence was obtained, and irrespective of its weight and cogency and the gravity of the crime to which it related. Accordingly I am of the opinion that the words of section 64(3B) do not prohibit the admissibility of the evidence which the Crown wished to adduce in this case, and therefore the issue whether the prohibition contained in sub clause (b) is mandatory or directory does not arise.
I am in respectful agreement, for the reasons which he gives, with the opinion of my noble and learned friend Lord Steyn that the defendant derives no support for his case from Article 6 or Article 8 of the European Convention.
In conclusion I would observe that before the Crown Court judge two questions arose. The first question was whether the evidence relating to the sample taken from the defendant on 15th October 1998 was admissible in law. If it was, the second question was whether the judge should exercise his discretion under section 78 of PACE to exclude that evidence. The Crown Court judge ruled that the evidence was inadmissible but, if he should be wrong in his view that the evidence was inadmissible, he further ruled that he would exclude the evidence in the exercise of his discretion under section 78. The question formulated by the Attorney General does not distinguish between these two issues. The judgments of the House are related to the first issue and make it clear that the evidence was admissible.
Counsel did not ask the House to consider the correctness of the approach taken by the Crown Court judge to the exercise of his discretion under section 78. I therefore wish to make it clear that in not expressing an opinion on the judge's ruling on the exercise of his discretion I am not to be taken as endorsing his reasoning on that point. In considering the interpretation of section 64(3B) my noble and learned friend Lord Steyn has stated in his speech that respect for the privacy of defendants is not the only value at stake, that the purpose of the criminal law is to protect citizens from harm and that there must be fairness to all, to the victim and to the public as well as to the defendant. I wish to express my concurrence with these observations, but in a case of this nature where very grave crimes were committed against an elderly woman in her own home, I consider that the observations of my noble and learned friend are also relevant to the exercise of the discretion under section 78. In the exercise of that discretion I consider that the interests of the victim and the public must be considered as well as the interests of the defendant. As Barwick C.J. stated in his judgment in the High Court of Australia in The Queen v. Ireland [1971-72] 126 C.L.R. 321, 335, with which all the members of the Court agreed:
LORD HOBHOUSE OF WOODBOROUGH
My Lords,I agree that this appeal should be allowed.
Upon the question of the construction of s.64(3B), I have little to add to what all your Lordships have already said and with which I agree. The unfortunate drafting of the various amendments which have been made to sections 61 to 65 have produced a maze of provisions with complex numbering which can only have the effect of making it more likely that differences of understanding will arise. The draftsmen have appreciated that different provisions are required in relation to the use and disposal of fingerprints and samples. In the case of samples it is the information derived from the scientific testing and analysis of the samples which is significant rather than the production of the sample itself. Indeed it may often be the case that the sample itself will have been destroyed by the scientific processes. Two consequences follow from this. Legislative provisions which depend upon a right to have the sample destroyed may not be fully coherent (s.64(1),(2) and(3)). The sample may already have been destroyed. Secondly, the information which has been derived from testing or analysing the sample may be partly contained in records and partly in peoples' minds. A police officer may have read a report which states that a certain match has been made. Is the statute requiring him artificially to "forget" what he knows? Maybe he will remember it for the purpose of not wasting time on what he knows will be a fruitless line of investigation. Maybe he will remember it for the purpose of excluding from a criminal trial or conviction a person whom he thereby knows is not guilty.
Subsection (3B), and the other similarly drafted provisions require that there shall be two consequences of the requirement to destroy a sample. The first, (a), is a requirement that the information shall not be used in evidence against the person who was entitled to have the sample destroyed. This is a requirement which makes the information inadmissible in evidence but only as against that person. It is thus limited in its scope but does not, within its scope, admit of exceptions: the evidence is inadmissible and there is no discretion to admit it as against that person. (If there is more than one defendant at the criminal trial, the familiar problems associated with evidence that is admissible against one defendant but not against another would have to be addressed.)
The second, (b), is different. It prohibits the use of the information in any investigation of an offence. It is not concerned with the admissibility of evidence at a trial. The judge and the Court of Appeal were in error in treating it as an implication of (a) that any evidence obtained in the course of an investigation which had involved some breach of the requirement of (b) must, as a matter of the statutory construction of s.64, be inadmissible. Like your Lordships, I consider that the implication is the reverse. But, in any event, when one takes into account that the statute also contains a provision covering the discretionary exclusion of evidence - s.78 - the right construction of s.64 becomes clear. If any question of the exclusion of evidence on the ground that the circumstances in which it has been obtained would make it unfair to admit it, then the trial judge should exercise his discretion under s.78 to exclude it. This is the approach which has most recently been endorsed by your Lordships' House in R v Khan  AC 558.
As your Lordships have pointed out, this appeal has been concerned only with the construction of s.64 and whether the relevant later evidence was made inadmissible by that section. The appeal has not concerned, and your Lordships have not heard argument about, the alternative decision of the judge to exclude the evidence under s.78. It is obvious that that decision was based upon reasoning which derived from his mistaken construction of s.64. In relation to s78, it is the duty of the judge to have regard to all the circumstances including the circumstances in which the evidence was obtained and then apply the statutory criterion "whether 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". The criterion is the effect which the admission of the evidence would have on the fairness of the proceedings. Each case must depend upon its own facts and circumstances. The two cases which came before the Court of Appeal dramatically illustrate the public importance of making the correct assessment under s.78. Subject to this, I, like your Lordships express no opinion about the ruling of the judge at the trial.
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