Attorney General's Reference No. 3 of 1999

The House considered the proper construction of section 64(3B) of the Police and Criminal Evidence Act 1984 (PACE) and its relationship with the general discretion to exclude evidence under section 78 of PACE. The court held that section 64(3B)(a) operates to render information derived from a sample inadmissible in evidence against the person entitled to destruction, but that section 64(3B)(b) - which prohibits use of such information "for the purposes of any investigation" - does not itself automatically render evidence obtained as a result of such an investigation inadmissible. Instead the consequences of an unlawful investigation are to be addressed by reference to section 78 where the trial judge has a discretion to exclude evidence if its admission would adversely affect the fairness of proceedings.

The House rejected the Court of Appeal's construction that section 64(3B)(b) creates an absolute bar to admissibility and rejected arguments that the Human Rights Act 1998 or the Convention required a different interpretation.

Background and facts:

• On 23 January 1997 an elderly woman was the victim of a violent burglary and rape. Medical swabs later produced a DNA profile which was entered on the national DNA database.
• On 4 January 1998 the defendant was arrested and charged with an unrelated burglary, gave a false name, and a saliva sample was lawfully obtained under section 63(3A) of PACE. After his acquittal of that unrelated burglary on 23 August 1998 the sample should have been destroyed under section 64(1) but was not; the profile remained on the database and produced a match on 6 October 1998 with the victim's swab profile, leading to the defendant's arrest for the 1997 offences and the taking of a fresh sample on 15 October 1998 which the prosecution sought to use at trial.

Procedural posture:

• At trial the Crown conceded the earlier sample should have been destroyed and that its use in the subsequent investigation was in breach of section 64(3B)(b). The trial judge ruled that evidence obtained as a result of that prohibited investigation was inadmissible under section 64(3B) and, alternatively, that he would in any event exclude it under section 78; a verdict of not guilty was directed. The Attorney-General referred the legal question to the Court of Appeal under section 36 of the Criminal Justice Act 1972; the Court of Appeal held there was no judicial discretion and the fruits of the prohibited investigation must be excluded. The matter was referred to the House of Lords.

Issues framed:

• Whether, where a DNA sample taken in connection with offence A (of which the accused is acquitted) leads to information suggesting guilt for offence B, a judge has a discretion to permit a prosecution for offence B despite section 64(3B) of PACE; and specifically whether section 64(3B)(b) renders evidence obtained from the prohibited investigation automatically inadmissible.

Reasoning and conclusions:

• The House rejected a rigid mandatory/directory dichotomy and focused on consequences of non-compliance. It distinguished subsection (3B)(a), which expressly renders information derived from a sample inadmissible in evidence against the person, from subsection (3B)(b), which forbids use of the information for the purposes of investigation but does not itself state that evidence derived from the prohibited investigation is automatically inadmissible. The appropriate remedy for the unlawful use in investigation is the exercise of the trial judge's discretion under section 78 to exclude evidence where its admission would adversely affect fairness.
• Arguments based on the Royal Commission's report and on the Human Rights Act 1998 (including Article 8 ECHR) did not require a different construction: an interpretation which leaves the judge a discretion under section 78 is compatible with Convention rights.

Practical implication:

• The Court of Appeal's rulings were wrong; evidence resulting from an investigation into which unlawfully retained DNA information had fed is not automatically inadmissible by virtue of section 64(3B)(b), but may be excluded in the exercise of the section 78 discretion depending on fairness and the circumstances of the particular case.

Appeal allowed. The House held that section 64(3B)(a) renders information derived from a sample inadmissible in evidence against the person entitled to destruction, but section 64(3B)(b), which prohibits use of such information "for the purposes of any investigation", does not itself make automatically inadmissible evidence obtained as a result of that prohibited investigation. The consequences of unlawful use in investigation are to be addressed by the trial judge's discretion under section 78 of PACE; the Court of Appeal's absolute bar construction was rejected. Human Rights Act arguments did not require a contrary interpretation.

At first instance the judge excluded the DNA evidence as inadmissible under s.64(3B) (and alternatively would have excluded it under s.78) and directed a verdict of not guilty. The Attorney-General referred the legal question to the Court of Appeal under section 36 of the Criminal Justice Act 1972; the Court of Appeal ([2000] 3 WLR 1164) held there was no judicial discretion and that evidence resulting from a prohibited investigation must be excluded. The case was then referred to the House of Lords which allowed the appeal.