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Attorney General Reference No. 3 of 1999
Factual and Procedural Background
In the early hours of 23 January 1997, an assailant burgled a terraced house in The City, threatened and assaulted a 66-year-old victim, and committed anal rape. Swabs taken from the victim later produced a DNA profile that was uploaded to the national DNA database on 15 April 1997.
On 4 January 1998 police lawfully obtained a saliva sample from Defendant following his arrest for an unrelated burglary. After he was acquitted of that burglary on 23 August 1998, section 64(1) of the Police and Criminal Evidence Act 1984 (PACE) required the sample to be destroyed, but it was not. A database comparison on 6 October 1998 matched the profile from the unlawfully retained sample with the profile from the 1997 swabs. This led to Defendant’s arrest on 15 October 1998 for the 1997 offences and the lawful taking of a fresh hair sample, which independently matched the crime-scene DNA.
At trial the Crown relied solely on the DNA match derived from the 15 October 1998 hair sample. The trial judge ruled that section 64(3B)(b) rendered the evidence inadmissible and, in the alternative, would have excluded it under section 78. A directed acquittal followed. The Attorney General referred a point of law to the Court of Appeal, which upheld the trial judge. The matter then came before the House of Lords via Attorney General’s Reference No. 3 of 1999.
Legal Issues Presented
- Does section 64(3B)(b) of PACE impose an absolute statutory bar on using evidence obtained through an investigation that relied on a DNA sample which should have been destroyed?
- If not absolute, is admissibility governed by the discretionary exclusionary power under section 78 of PACE?
Arguments of the Parties
Attorney General’s Arguments
- Section 64(3B)(b) prohibits investigative use of an undeleted sample but does not itself dictate evidential consequences; Parliament left admissibility to the section 78 discretion.
- Reading an absolute exclusion into paragraph (b) would create irrational results, e.g., preventing prosecution of serious crimes even where compelling independent evidence exists.
- Section 78 provides a complete and flexible safeguard, making further implied sanctions unnecessary.
- The European Convention on Human Rights (Articles 6 and 8) is satisfied because section 78 ensures fair-trial rights and any privacy interference is “in accordance with law.”
Defendant’s Arguments
- Paragraphs (a) and (b) of section 64(3B) “stand together”; because paragraph (a) makes the original sample inadmissible, paragraph (b) must equally exclude all derivative evidence.
- The Royal Commission on Criminal Justice wanted samples from acquitted persons to play no role in future investigations; Parliament must have intended a total bar.
- Admitting evidence obtained through a prohibited investigation would conflict with Articles 6 and 8 of the Convention.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| London and Clydeside Estates Ltd. v. Aberdeen District Council [1980] 1 WLR 182 | Warned against rigid “mandatory vs. directory” classifications; focus on consequences of non-compliance. | Used to justify a purposive, consequence-based reading of section 64(3B). |
| R v Immigration Appeal Tribunal, ex p Jeyeanthan [1999] 3 All ER 231 | Endorsed the “consequences” approach over formal labels. | Supported rejecting a purely mandatory reading of section 64(3B)(b). |
| Schenk v. Switzerland (1988) 13 E.H.R.R. 242 | European Convention does not automatically exclude unlawfully obtained evidence. | Cited to rebut the argument that Articles 6 or 8 required absolute exclusion. |
| R v Khan (Sultan) [1997] AC 558 | Confirmed judicial discretion under section 78 for evidence obtained unlawfully. | Illustrated existing safeguards that make a statutory absolute bar unnecessary. |
| Kuruma v. The Queen [1955] AC 197 | Relevance, not legality of acquisition, determines admissibility at common law. | Used to demonstrate the common-law baseline that Parliament would need clear words to displace. |
| R v Sang [1980] AC 402 | Scope of judicial discretion to exclude unfair evidence. | Provided historical background to section 78 discretion. |
| Fox v. Chief Constable of Gwent [1986] AC 281 | Reaffirmed admissibility of relevant evidence irrespective of how obtained. | Reinforced the Kuruma principle. |
| The Queen v. Ireland [1971-72] 126 CLR 321 | Balancing public interest in prosecution against protection from unlawful conduct. | Cited to highlight the need for a balanced discretion rather than an absolute rule. |
Court's Reasoning and Analysis
All members of the appellate panel (Judge Steyn, Judge Cooke, Judge Clyde, Judge Hutton, Judge Hobhouse) agreed that:
- Section 64(3B)(a) explicitly renders the original sample inadmissible, whereas paragraph (b) is silent on evidential consequences. The statutory contrast is deliberate.
- Reading paragraph (b) together with section 78 supplies a coherent scheme: investigative use of an undeleted sample is unlawful, but any resultant evidence is subject to judicial discretion on fairness.
- Adopting the Court of Appeal’s absolute-bar interpretation would lead to absurd results, e.g., preventing prosecution for serious crimes despite reliable independent evidence and even suppressing voluntary confessions.
- The Royal Commission materials did not directly address evidential consequences and could not override the statute’s text.
- Convention rights are preserved: any privacy interference is lawful and proportionate, and trial fairness is fully protected by the section 78 discretion.
- The mandatory/directory dichotomy is unhelpful; the focus must be on statutory purpose and practical consequences, consistent with prior authority.
Holding and Implications
HELD: Section 64(3B)(b) does not automatically render inadmissible evidence obtained through an investigation that unlawfully relied on a sample which should have been destroyed. Admissibility is governed by the trial judge’s discretion under section 78 of PACE.
Implications: The decision overturns the Court of Appeal ruling in the present reference (and in the linked case of Weir). It clarifies that breach of the statutory duty to destroy a DNA sample triggers potential discretionary exclusion, not an absolute bar. The ruling preserves prosecutorial ability to rely on compelling derivative DNA evidence while safeguarding defendants through the section 78 fairness test. No new legislative precedent is created, but important guidance on statutory construction and evidential discretion is provided for future cases.
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