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). Section 64(1) imposes a mandatory duty to destroy fingerprints or samples when a person is cleared of the offence for which they were taken; section 64(3B)(a) expressly renders information derived from such samples inadmissible in evidence against the person entitled to destruction. Section 64(3B)(b) prohibits use of such information "for the purposes of any investigation of an offence" but does not itself state that evidence subsequently obtained in that investigation is automatically inadmissible.

The House held that the correct consequence of unlawful use for the purposes of an investigation is to engage the trial judge's discretion under section 78(1) of PACE to exclude evidence if its admission would have an adverse effect on the fairness of the proceedings. In short, subsection (3B)(b) forbids the investigation but does not of itself render fruit of that investigation automatically inadmissible; admissibility is governed by section 78. The Court rejected arguments that Convention rights under the Human Rights Act 1998 required a different construction.

Background and facts. In January 1997 a 66‑year‑old woman was violently attacked, robbed and anally raped. Swabs were taken from the victim and a DNA profile obtained and placed on the national DNA database. In January 1998 the defendant was lawfully arrested for an unrelated burglary; a saliva sample was taken and, after the defendant's acquittal on that burglary, the sample should have been destroyed under section 64(1) PACE but was not. A match between that retained profile and the victim's swabs led to the defendant's arrest in October 1998 and a further (non‑intimate) sample was taken; evidence based on that later sample was the sole basis of the prosecution.

Procedural posture and nature of the reference. At trial the judge ruled that section 64(3B) rendered the later evidence inadmissible and directed an acquittal. The Attorney‑General referred to the Court of Appeal under section 36 of the Criminal Justice Act 1972, which answered that there was no judicial discretion to permit the use of evidence obtained as a result of a prohibited investigation. The matter was referred to the House of Lords to resolve the point of law.

Issues framed. (i) Whether section 64(3B)(b) of PACE, read with section 64(1), creates an absolute bar so that evidence resulting from an investigation which relied upon information from a sample that should have been destroyed is inadmissible as a matter of law; and (ii) if not, what are the legal consequences of the breach and the role of the trial judge under section 78.

Court’s reasoning and decision. The House distinguished subsection (3B)(a), which expressly makes information inadmissible in evidence against the person entitled to destruction, from subsection (3B)(b), which prohibits use "for the purposes of any investigation" but does not itself provide that evidence resulting from that investigation is inadmissible. The proper construction is to read (3B)(b) with section 78(1) PACE: the statutory prohibition on investigation is enforceable but any question whether evidence obtained in breach of that prohibition should be admitted is for the judge in exercise of the broad section 78 discretion, having regard to fairness and all circumstances. The House rejected an implied further bar and rejected submissions based on the Human Rights Act 1998 (Article 8 and Article 6) that would require a different construction.

Subsidiary points. The House emphasised that it was not deciding whether the trial judge should in fact have excluded the evidence under section 78; that exercise of discretion was not the matter before the House and the acquittal therefore stood.

Appeal allowed. The House held that section 64(3B)(b) prohibits use of information for the purposes of investigation but does not, by itself, render inadmissible as a matter of law evidence obtained as a result of such a prohibited investigation; the admissibility of any such evidence is to be determined by the trial judge in the exercise of the section 78(1) discretion, having regard to fairness and all the circumstances.

At first instance the trial judge ruled that the DNA evidence was inadmissible under section 64(3B) and directed a verdict of not guilty. The Attorney‑General referred the point under section 36 of the Criminal Justice Act 1972. The Court of Appeal held that no judicial discretion existed and reported its decision at [2000] 3 WLR 1164. The House of Lords allowed the Attorney‑General's reference and reversed the legal ruling of the Court of Appeal on the construction of section 64(3B).