R v R [1991]

JurisdictionEngland & Wales
CourtCourt of Appeal
Judgment Date26 Jan 1994

Court of Appeal

Before Lord Justice Evans, Mr Justice Rougier and Mr Justice Douglas Brown

Regina
and
R

Criminal evidence - legal privilege - blood sample subject to DNA

Privilege in defendant's DNA sample result

Where a scientist carried out DNA tests at the request of defence solicitors on a blood sample provided by the defendant to his general practitioner for that purpose, that blood sample was an item subject to legal privilege under section 10(1)(c) of the Police and Criminal Evidence Act 1984 and the defendant was entitled to object to its production or to opinion evidence based upon it.

The Court of Appeal so stated when giving reserved reasons for dismissing on December 20, 1993, by applying the proviso to section 2 of the Criminal Appeal Act 1968, the appeal of the defendant R against his conviction on October 9, 1992 at Wolverhampton Crown Court, before Judge Evans, QC and a jury, of, incest and indecent assault.

Section 10 of the 1984 Act provides: "(1) … in this Act `items subject to legal privilege' means: … (c) items … made (i) in connection with the giving of legal advice; or (ii) in connection with or in contemplation of legal proceedings and for the purposes of such proceedings, when they are in the possession of a person who is entitled to possession of them."

Mr Anthony Barker, QC, assigned by the Registrar of Criminal Appeals, for the appellant; Mr Christopher Hotten for the Crown.

LORD JUSTICE EVANS, delivering the reasons of the court, said that during the prosecution case the judge permitted representatives of the Crown Prosecution Service to interview a scientist who had carried out DNA tests at the request of the defence solicitors on a blood sample provided by the defendant to his doctor for that purpose. Subsequently the judge ruled that the evidence of the scientist, who had been subpoenaed as a witness for the prosecution, was admissible against the defendant.

The question whether the prosecution was entitled to call as an expert witness a duly qualified person who had previously been consulted by the defendant's solicitors and who had advised them accordingly, was one of general interest and importance, and their Lordships would consider it first as a matter of principle.

There was no property in a witness: Harmony Shipping Co SA v Saudi Europe Line LtdWLR ((1979) 1 WLR 1380) applied in a criminal case in R v KingWLR ((1983) 1 WLR 411). The prosecution therefore could not be prevented from approaching or...

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