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

Information derived from a sample which should have been destroyed cannot lawfully be used to investigate an offence. That prohibition does not, however, make evidence subsequently obtained through the prohibited investigation automatically inadmissible.

Section 64(3B)(a) of the Police and Criminal Evidence Act 1984 expressly excludes the information derived from the original sample. Section 64(3B)(b) contains no equivalent exclusion of resulting evidence. Its admissibility is governed by the trial judge’s discretion under section 78, which requires consideration of all the circumstances and the effect of admission on the fairness of the proceedings.

Statutory non-compliance should be analysed by examining its consequences in context, rather than by assigning the provision to rigid mandatory or directory categories.

A saliva sample was lawfully taken from the defendant during an investigation into an unrelated burglary. After he was acquitted, section 64(1) of the Police and Criminal Evidence Act 1984 required its destruction. It was retained, and its DNA profile was unlawfully used to identify a match with material recovered following a rape, assault and burglary. That match led to the defendant’s arrest and the lawful taking of a fresh hair sample, which produced further matching DNA evidence.

The Crown Court held that section 64(3B)(b) made the later evidence inadmissible. It added that the evidence would otherwise have been excluded under section 78. The resulting collapse of the prosecution led to a directed acquittal.

On the Attorney-General’s reference, the Court of Appeal held in Attorney-General’s Reference (No 3 of 1999) [2000] 3 WLR 1164 that the prohibition was mandatory and that all evidence resulting from the prohibited investigation had to be excluded. It referred the same question to the House of Lords. The central issue was whether section 64(3B)(b) imposed automatic inadmissibility or left the resulting evidence subject to the section 78 discretion.

1. Disposition. The House unanimously determined the reference in substance in the Attorney-General’s favour. Lord Steyn delivered the leading speech. Lord Cooke agreed completely; Lord Clyde agreed with the conclusion and reasons; Lord Hutton agreed with the construction and Convention analysis; and Lord Hobhouse agreed that the appeal should be allowed. The Court of Appeal’s construction was wrong, although the defendant’s acquittal remained undisturbed.

2. Consequences of non-compliance. Per Lord Steyn, the statutory question should not be resolved by classifying section 64(3B)(b) as either mandatory or directory. The court should instead determine the consequences of non-compliance from the language and context of the statute. Lord Cooke and Lord Clyde specifically endorsed that approach.

3. Distinction between paragraphs (a) and (b). Section 64(1) of the Police and Criminal Evidence Act 1984 imposed an imperative duty to destroy the sample after the defendant’s acquittal. Section 64(3B)(a) expressly made information derived from that sample inadmissible against the person entitled to its destruction. By contrast, section 64(3B)(b) prohibited use of that information in an investigation but did not declare evidence subsequently obtained through the unlawful investigation inadmissible.

4. Section 78 discretion. The consequences of breaching section 64(3B)(b) were governed by section 78. The trial judge could exclude resulting evidence where, having regard to all the circumstances, including how the evidence was obtained, its admission would adversely affect the fairness of the proceedings to such an extent that it ought not be admitted. There was no need to imply an automatic exclusionary rule into section 64(3B)(b). Such an implication would duplicate section 78 and produce unreasonable consequences for the investigation and prosecution of serious crime.

5. Convention rights. Per Lord Steyn, admitting resulting evidence subject to the section 78 discretion was compatible with article 8 of the European Convention on Human Rights. The interference was governed by law and was capable of being necessary for investigating and prosecuting serious crime. Article 6 did not establish a general rule excluding unlawfully obtained evidence, and the trial judge possessed adequate powers to protect fairness. Section 3 of the Human Rights Act 1998 therefore did not require a different construction.

6. Reserved issue. The House decided only that section 64 did not make the later DNA evidence inadmissible as a matter of law. It did not determine whether the trial judge had correctly exercised the section 78 discretion. Lord Hutton considered that the interests of the defendant, victim and public were relevant to that discretion. Lord Hobhouse emphasised that the statutory criterion concerned fairness of the proceedings and depended upon the circumstances of each case.

1. House of Lords: Unanimously rejected the Court of Appeal’s construction and determined the reference in substance in the Attorney-General’s favour. The defendant’s acquittal remained undisturbed.

2. Court of Appeal: In Attorney-General’s Reference (No 3 of 1999) [2000] 3 WLR 1164, answered the Attorney-General’s question in the negative. It held that section 64(3B)(b) of the Police and Criminal Evidence Act 1984 automatically excluded all evidence resulting from the prohibited investigation, and referred the same question to the House.

3. Crown Court: Ruled that the later DNA evidence was inadmissible under section 64(3B). The judge stated alternatively that it would be excluded under section 78. The prosecution case consequently collapsed, and a verdict of not guilty was directed.