Attorney-General’s Reference (No 3 of 1999)

A breach of the duty in section 64 of Police and Criminal Evidence Act 1984 to destroy a sample after acquittal does not, without more, make inadmissible evidence later obtained through an investigation prompted by information unlawfully retained from that sample.

Section 64(3B)(a) expressly bars use of the retained information itself in evidence against the person entitled to destruction. By contrast, section 64(3B)(b) forbids investigative use of that information but does not itself prescribe automatic exclusion of the fruits of the investigation. Their admissibility is instead governed by the trial judge’s discretion under section 78.

The mandatory or directory classification does not resolve the issue. The consequences of non-compliance depend on the language, context and statutory scheme.

The reference arose from a prosecution for rape, burglary and assault in which the Crown case depended on DNA evidence. A saliva sample had earlier been lawfully taken from the defendant in connection with an unrelated burglary. After his acquittal on that charge, the sample should have been destroyed under section 64(1) of Police and Criminal Evidence Act 1984, but the DNA profile derived from it remained on the national database.

A later match between that profile and semen recovered from the victim led to the defendant’s arrest and to the taking of a fresh sample, from which the prosecution sought to adduce evidence. The trial judge held that section 64(3B) made that evidence inadmissible and added that he would in any event exclude it under section 78. He therefore directed a verdict of not guilty.

On a reference under section 36 of Criminal Justice Act 1972, the Court of Appeal held that section 64(3B)(b) imposed an absolute bar. The question before the House was whether a judge retained any discretion to permit a prosecution to proceed where information from a sample that ought to have been destroyed had been used to investigate another offence.

Held

1. The House allowed the appeal unanimously. Lord Steyn gave the leading speech, with which Lord Cooke, Lord Clyde, Lord Hutton and Lord Hobhouse agreed in substance. The House held that the Court of Appeal had been wrong to treat section 64(3B)(b) of Police and Criminal Evidence Act 1984 as creating an automatic rule of inadmissibility.

2. Per Lord Steyn, the proper question was not whether section 64(3B)(b) was “mandatory” or “directory”. Section 64(1) undoubtedly imposed a duty that the sample “must” be destroyed after acquittal, and that duty had been breached. But the real issue was the legal consequence of that breach.

3. Section 64(3B)(a) and (b) had different effects. Paragraph (a) expressly provided that information derived from a sample liable to destruction should not be used in evidence against the person entitled to its destruction. Paragraph (b), by contrast, prohibited use of that information for the purposes of any investigation of an offence, but said nothing about the admissibility of evidence later obtained as a result of such an investigation. Lord Clyde and Lord Hobhouse likewise stressed that the same imperative language imposed obligations in both limbs, yet the consequences of breach were different.

4. The statutory consequence of breach of paragraph (b) was to be addressed through section 78(1), which conferred a discretionary power to exclude evidence where its admission would adversely affect the fairness of the proceedings. The statute was workable without implying additional words into section 64(3B)(b), and any implication creating automatic exclusion would be both unnecessary and productive of absurd results. Lord Hutton also relied on the general principle that relevant evidence is not rendered inadmissible merely because it was unlawfully obtained, absent express statutory language.

5. The House rejected reliance on the Royal Commission report and on Convention rights. Per Lord Steyn, article 8 was not infringed if admissibility was governed by law through section 78 and the investigation and prosecution of serious crime. Article 6 added nothing because fairness was protected by the court’s powers, including abuse of process and section 78. Lord Hutton agreed.

6. The House decided only that the later DNA evidence was not inadmissible as a matter of law under section 64(3B)(b). It did not determine whether the trial judge would have been entitled to exclude it under section 78 on the facts of the particular case.

1. House of Lords: allowed the appeal from the Court of Appeal and held that section 64(3B)(b) of Police and Criminal Evidence Act 1984 did not itself render inadmissible evidence later obtained through an investigation prompted by unlawfully retained DNA information.
2. Court of Appeal (Criminal Division): in Attorney-General's Reference (No. 3 of 1999) [2000] 3 WLR 1164, answered the Attorney General’s reference in the negative and held that section 64(3B)(b) imposed an absolute prohibition, so that all evidence resulting from the prohibited investigation had to be excluded.
3. Crown Court: the trial judge ruled that the later DNA evidence was inadmissible under section 64(3B) and further indicated that, if wrong on that point, he would exclude it under section 78; he then directed a verdict of not guilty.