LORDS DECISIONSLORDS DECISIONS >>LORDSLORD STEYN LORD COOKE OF THORNDON LORD CLYDE LORD HUTTON LORD HOBHOUSE OF WOOD-BOROUGHLORDS OF APPEAL FOR JUDGMENTLORD STEYNLORDS,LORDS BY THE COURT OF APPEAL INVOLVES AN IMPORTANT POINT ON THE PROPER CONSTRUCTION OF SECTION 64(3B) OF THE POLICE AND CRIMINAL EVIDENCE ACT 1984 (PACE).JUSTICE ACT 1972. THE QUESTION REFERRED WAS AS FOLLOWS:JUSTICE (1993) (CM. 2263), PP. 16-17: SEE 1179G-1180H. IN EVALUATING THIS MATERIAL THE COURT HAD THE ADVANTAGE THAT ONE OF ITS MEMBERS (RAFFERTY J.) HAD BEEN A MEMBER OF THE ROYAL COMMISSION. GIVING THE JUDGMENT OF THE COURT LORD JUSTICE SWINTON THOMAS OBSERVED (AT 1182C-G):LORD JUSTICE SWINTON THOMAS REFERRED TO THE CASE OF REG. V. WEIR (UNREPORTED, 26 MAY 2000) WHICH WAS HEARD BY THE COURT OF APPEAL TOGETHER WITH THE REFERENCE IN THE INSTANT CASE. IN WEIR'S CASE THE APPELLANT WAS CONVICTED OF A PARTICULARLY BRUTAL MURDER ON WHAT LORD JUSTICE SWINTON THOMAS ALSO DESCRIBED AS COMPELLING DNA EVIDENCE. APPLYING THE REASONING IN THE JUDGMENT ON REFERENCE TO THE HOUSE THE COURT OF APPEAL FELT COMPELLED TO QUASH THE CONVICTION. IN GIVING JUDGMENT IN THE CASE OF WEIR THE COURT OF APPEAL OBSERVED:LORDS, I ACKNOWLEDGE AT ONCE THAT REASONABLE MINDS MAY DIFFER AS TO THE CORRECT INTERPRETATION OF A SUBSECTION WHICH HAS NO PARALLEL IN PACE OR ANY OTHER STATUTE. NEVERTHELESS, THERE DO SEEM TO BE SECURE FOOTHOLDS WHICH MAY LEAD TO A TOLERABLY CLEAR ANSWER. IT IS NOT ALONG THE ROUTE ADOPTED BY THE PROSECUTION OF ASKING WHETHER THE RELEVANT PROVISION IS MANDATORY OR DIRECTORY. IN LONDON AND CLYDESIDE ESTATES LTD. V. ABERDEEN DISTRICT COUNCIL [1980] 1 WLR 182, AND 188-190, LORD HAILSHAM OF ST MARYLEBONE L.C. CONSIDERED THIS DICHOTOMY AND WARNED AGAINST THE APPROACH "OF FITTING A PARTICULAR CASE INTO ONE OR OTHER OF MUTUALLY EXCLUSIVE AND STARKLY CONTRASTED COMPARTMENTS." IN R. V. IMMIGRATION APPEAL TRIBUNAL, EX PARTE JEYEANTHAN [1999] 3 ALL ER 231, AT 237A-B, LORD WOOLF, M.R. NOW LORD CHIEF JUSTICE, ECHOED THIS WARNING AND HELD THAT IT IS "MUCH MORE IMPORTANT TO FOCUS ON THE CONSEQUENCES OF THE NON-COMPLIANCE." THIS IS HOW I WILL APPROACH THE MATTER.LORD COOKE OF THORNDON ELICITED, THE ADDITION AT THE END OF PART (B) OF THE WORDS "NOR SHALL EVIDENCE OF THE RESULTS OF ANY PROHIBITED INVESTIGATION BE ADMISSIBLE." THE DIFFICULTY IN THIS APPROACH IS OBVIOUS. IF ONE READS SECTION 64(3B)(B) TOGETHER WITH SECTION 78 THE STATUTE IS ENTIRELY WORKABLE WITHOUT ANY IMPLICATION. MOREOVER, THE IMPLICATION WOULD RESULT IN A MEANING WHICH WOULD BE PRODUCTIVE OF ABSURD RESULTS WHICH ARE CONTRARY TO THE PUBLIC INTEREST. THE SUGGESTED IMPLICATION IS UNNECESSARY AND UNWARRANTED.LORD COOKE OF THORNDONLORDS,LORD STEYN, I AM IN COMPLETE AGREEMENT WITH IT. IN PARTICULAR I WISH TO BE ASSOCIATED WITH HIS INVOCATION OF THE APPROACH OF LORD HAILSHAM OF ST. MARYLEBONE L.C. IN LONDON AND CLYDESIDE ESTATES LTD. V. ABERDEEN D.C. [1980] 1 WLR 182, 188-190, WHICH HAD THE AGREEMENT OF LORD WILBERFORCE IN THAT CASE AND HAS BEEN ECHOED BY LORD WOOLF IN R. V. IMMIGRATION APPEAL TRIBUNAL, EX PARTE JEYEANTHAN [1999] 3 ALL ER 231, 236-239.LORD STEYN HAS POINTED OUT, THERE IS NO PRINCIPLE THAT UNLAWFULLY OBTAINED EVIDENCE IS NOT ADMISSIBLE, SO THERE IS NO SUCH GENERAL PRINCIPLE IN COMMONWEALTH COUNTRIES. APPROACHES DIFFER SOMEWHAT AMONG THE JURISDICTIONS. THUS IN CANADA EVIDENCE OBTAINED IN BREACH OF THE CHARTER WILL BE EXCLUDED IF ITS ADMISSION IS LIKELY TO BRING THE ADMINISTRATION OF JUSTICE INTO DISREPUTE (R V. COLLINS [1987] 1 S.C.R. 265) ; IN AUSTRALIA THE LEADING CASES RECOGNISE A JUDICIAL DISCRETION IN WHICH THE COMPETING DEMANDS OF THE PUBLIC INTEREST IN THE PREVENTION AND PUNISHMENT OF CRIME, ON THE ONE HAND, AND FAIRNESS TO THE ACCUSED, ON THE OTHER, HAVE TO BE WEIGHED (BUNNING V. CROSS (1978) 141 C.L.R. 54; RIDGEWAY V. THE QUEEN (1995) 184 C.L.R. 19); AND IN NEW ZEALAND, WHILE IT HAS LONG BEEN HELD THAT THE JUDICIAL DISCRETION TO EXCLUDE UNFAIRLY OBTAINED EVIDENCE IS WIDER THAN THAT RECOGNISED IN ENGLAND AT COMMON LAW IN R V SANG [1980] AC 402 AND KURUMA V. THE QUEEN [1955] AC 197, A LINE OF CASES HAS TREATED EVIDENCE OBTAINED IN BREACH OF THE SEMI-CONSTITUTIONAL PROVISIONS OF THE BILL OF RIGHTS AS PRIMA FACIE INADMISSIBLE BUT SUBJECT TO EXCEPTIONS CREATED BY THE OVERRIDING DEMANDS OF JUSTICE. (HOWDEN V. MINISTRY OF TRANSPORT [1987] 2 NZLR 747; R V. GRAYSON AND TAYLOR [1997] 1 NZLR 399). THE CASES IN THE VARIOUS JURISDICTIONS ON THIS PERVASIVE AND PERENNIAL PROBLEM ARE LEGION. I HAVE CITED ONLY A HANDFUL. THE POINT OF PRESENT SIGNIFICANCE IS SIMPLY THAT, APART FROM EXPRESS STATUTORY PROVISIONS, NOWHERE IN THE COMMONWEALTH DOES THERE APPEAR TO BE ANY REMORSELESS PRINCIPLE OF THE EXCLUSION OF EVIDENCE UNLAWFULLY OBTAINED. IN THE INSTANT CASE THERE IS IN PARAGRAPH (B) NO SUCH EXPRESS STATUTORY PROVISION; AND IN MY VIEW, IT WOULD BE ASTONISHING IF PARLIAMENT HAD INTENDED THE EVIDENCE EVENTUALLY TENDERED TO HAVE BEEN RULED OUT.LORD STEYN.LORD CLYDELORDS,LORD STEYN AND I AGREE WITH THE CONCLUSION WHICH HE HAS REACHED FOR THE REASONS WHICH HE HAS GIVEN.LORD HUTTONLORDS,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.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.LORD GODDARD STATED:LORDSHIPS' OPINION THE TEST TO BE APPLIED IN CONSIDERING WHETHER EVIDENCE IS ADMISSIBLE IS WHETHER IT IS RELEVANT TO THE MATTERS IN ISSUE. IF IT IS, IT IS ADMISSIBLE AND THE COURT IS NOT CONCERNED WITH HOW THE EVIDENCE WAS OBTAINED. WHILE THIS PROPOSITION MAY NOT HAVE BEEN STATED IN SO MANY WORDS IN ANY ENGLISH CASE THERE ARE DECISIONS WHICH SUPPORT IT, AND IN THEIR LORDSHIPS' OPINION IT IS PLAINLY RIGHT IN PRINCIPLE."LORD FRASER OF TULLYBELTON STATED: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: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.LORD STEYN THAT THE DEFENDANT DERIVES NO SUPPORT FOR HIS CASE FROM ARTICLE 6 OR ARTICLE 8 OF THE EUROPEAN CONVENTION.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 WOODBOROUGHLORDS,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 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.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 [1997] AC 558.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.