Attorney General's Reference (No. 3 of 1999); R v B

JurisdictionUK Non-devolved
Judgment Date14 December 2000
Neutral Citation[2000] UKHL 63
Date14 December 2000
CourtHouse of Lords

[2000] UKHL J1214-1

Lord Steyn

Lord Cooke of Thorndon

Lord Clyde

Lord Hutton

Lord Hobhouse of Wood-borough



My Lords,


The question of law referred to the House of 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).


I. The Narrative


In the early hours of the morning of 23 January 1997, in London, a man climbed over a garden wall and forced open a ground floor window of a terraced house. The owner of the house was a 66-year-old woman. The burglar went to her bedroom. He threatened her. He punched her several times. He then tied her hands behind her back with flex. He raped her anally. He pushed her into a hallway cupboard and blocked the door to the cupboard with heavy items. After taking money and other items the burglar left. At 7pm that day the Police found the victim in the cupboard. The ordeal of the woman was horrendous and the offence of rape was of the utmost gravity.


The victim was medically examined and swabs were taken from the areas around her vagina and anus. On 17 March 1997 semen was found on both the swabs. On 20 March 1997 a DNA profile was obtained from the semen. On 15 April 1997 the DNA profile was placed on the national DNA database.


On 4 January 1998 the police arrested and charged the defendant with an unrelated offence of burglary. At the time of his arrest the defendant gave a false name to the police. A saliva sample was lawfully taken from the defendant without his consent. The sample was obtained in connection with the arrest for the burglary alone under section 63(3A) of PACE. If the defendant had given his real name to the police they would have discovered that his previous convictions included one for affray. That conviction would have permitted the police to obtain a DNA sample which would have justified the retention of the sample whatever the fate of the burglary charge. In any event, on 12 May 1998 the sample taken from the defendant was submitted for DNA profiling.


On 23 August 1998 the defendant was acquitted of the offence of burglary, that is the offence for which he had been arrested on 4 January 1998. It is formally conceded on behalf of the Attorney-General that under section 64(1) of PACE the sample should have been destroyed as soon as it was practicable after the defendant's acquittal. It was not destroyed and information derived from it, namely the DNA profile, remained on the DNA data base. On 6 October 1998 a match was made between the DNA profile obtained from the swabs taken from the victim and the DNA profile obtained from the saliva taken from the defendant.


Relying on the match between the two DNA profiles, the police arrested the defendant on 15 October 1998 in respect of the offences committed against the elderly victim in January 1997. In the course of an interview the defendant denied that he was involved in the offences. He refused to give his consent to the taking of an intimate sample. A police superintendent authorised the taking of a non-intimate sample of plucked head hair. On 18 October 1998 a forensic science laboratory confirmed that a DNA profile obtained from the plucked hair taken from the defendant matched the DNA profile on the swabs taken from the victim. In the opinion of the forensic scientist the frequency of the occurrence of obtaining such a match, if the DNA on the swabs had come from a person unrelated to the defendant, was one in 17 million. The defendant was charged with burglary, assault and rape.


II. Section 64 of PACE


The question was what impact the failure to destroy the sample had on the case against the defendant. The courts below were principally concerned with the interpretation of section 64(1) read with section 64(3A) of PACE. Subsection 1 of section 64 is to the following effect:

"If -

(a) fingerprints or samples are taken from a person in connection with the investigation of an offence; and

(b) he is cleared of that offence,

they must, except as provided in subsection (3A) below, be destroyed as soon as is practicable after the conclusion of the proceedings."


Subsections (2) and (3) make corresponding provision for cases where it is decided not to prosecute and where the person concerned is not suspected of having committed an offence. Subsection 3(B) provides as follows:

"Where samples are required to be destroyed under subsections (1), ( 2) or (3) above … information derived from the sample of any person entitled to its destruction under subsection (1), ( 2) or (3) above shall not be used -

(a) in evidence against the person so entitled; or

(b) for the purposes of any investigation of an offence."


The reference before the House involves the interpretation of part (b) of this provision.


III. The trial


The prosecution case depended solely on DNA evidence. It is however, necessary to distinguish between the two samples taken from the defendant. Information derived from the sample taken on 4 January 1998 led to the defendant's arrest on 15 October 1994 which in turn led to the taking of a new sample from the defendant. At the trial the prosecution did not adduce evidence relating to the 4 January 1998 sample. The prosecution relied solely on the match between the DNA profile of the sample taken on 15 October 1998 from the defendant and the DNA profile obtained from the swabs taken from the victim.


It was conceded by the prosecution before the judge that under section 64(1) of the PACE the saliva sample taken on 4 January 1998 should have been destroyed after his acquittal on the unrelated burglary charge; that such information was used in the investigation of an offence in contravention of section 64(3B)(b); and that this led to the arrest of the defendant on 15 October 1998.


The defence submitted that the evidence based on information derived from the sample of the 15 October 1998 was rendered inadmissible by the mandatory terms of section 64(3B). The prosecution submitted that section 64(3B)(b) was merely of directory effect. The judge ruled that the provision was mandatory and that the evidence tendered by the prosecution was inadmissible. But the judge also concluded that, if, section 64(3B) was merely of directory effect, he would have had to exercise his discretion under section 78 of PACE to exclude the DNA evidence. Given these conclusions the prosecution case collapsed and despite what the Court of Appeal subsequently described as 'compelling evidence,' the judge directed a verdict of not guilty.


IV. The Court of Appeal


The Attorney-General referred the matter to the Court of Appeal. He acted under section 36 of the Criminal Justice Act 1972. The question referred was as follows:

"Where a sample of DNA is lawfully taken from an accused in respect of offence A (of which offence the accused is subsequently acquitted), and information derived from the sample suggests that the accused is guilty of offence B, does a Judge have a discretion to permit a prosecution to proceed against the accused for offence B, notwithstanding the terms of section 64(3B) of the Police and Criminal Evidence Act?"


The question raised an issue of the admissibility of evidence which depended on the proper construction in its contextual setting of section 64(3B)(b) of PACE. The Court of Appeal answered this question in the negative.


The judgment of the Court of Appeal is reported: Attorney-General's Reference (No. 3 of 1999) [2000] 3 W.L.R. 1164. The court attached considerable importance to paragraphs 34, 35 and 36 in the report of the Royal Commission on Criminal 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):

"The words of the section are clear. In our judgment, the provisions contained in section 64(3B)(a) and (b) stand together. We do not accept Mr. Perry's submission that if Parliament had intended to exclude the exercise of a judge's discretion, it would have said so. In our judgment, on the contrary, if Parliament had intended that a judge should have a discretion in the circumstances envisaged in section 64(3B)(a) or in (3B)(b), Parliament would have said so. It would have been perfectly possible for Parliament to conclude that the fight against crime was so important that there should be no restriction on the use of DNA samples, so that where such samples were lawfully obtained by the police the information derived from them could be retained on a database for all purposes. It would have been equally possible for Parliament to enact that whilst information derived from samples taken from persons cleared of involvement in offences should not normally be used for the investigation of other offences the investigating authorities should have a discretion to use that information for the purposes of a further investigation in exceptional circumstances only. Parliament could have enacted that the information should not be used for the purpose of an investigation of an offence subject to the discretion of the court to permit such use if in the circumstances the court thought it right to do so. Parliament did not choose to take any of those courses. Indeed a discretionary power such as envisaged above would have rendered virtually nugatory the plain intention of Parliament that samples should be destroyed and information obtained from them not used after one or other of the events set out in section 64(1) to (3). "Section 64(3B) expressly and without qualification forbids the use of the sample which is required to be destroyed either in evidence...

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