R (S and another) v Chief Constable of the South Yorkshire Police

JurisdictionUK Non-devolved
JudgeLORD CARSWELL,LORD RODGER OF EARLSFERRY,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD STEYN
Judgment Date22 July 2004
Neutral Citation[2004] UKHL 39
CourtHouse of Lords
Date22 July 2004
Regina
and
Chief Constable of South Yorkshire Police
(Respondent)

ex parte LS (by his mother and litigation friend JB) (FC)

(Appellant)
Regina
and
Chief Constable of South Yorkshire Police
(Respondent)

ex parte Marper (FC)

(Appellant)

(Consolidated Appeals)

[2004] UKHL 39

The Appellate Committee comprised:

Lord Steyn

Lord Rodger of Earlsferry

Baroness Hale of Richmond

Lord Carswell

Lord Brown of Eaton-under-Heywood

HOUSE OF LORDS

LORD STEYN

My Lords,

1

It is of paramount importance that law enforcement agencies should take full advantage of the available techniques of modern technology and forensic science. Such real evidence has the inestimable value of cogency and objectivity. It is in large measure not affected by the subjective defects of other testimony. It enables the guilty to be detected and the innocent to be rapidly eliminated from enquiries. Thus in the 1990s closed circuit television (CCTV) became a crime prevention strategy extensively adopted in British cities and towns. The images recorded facilitate the detection of crime and prosecution of offenders. Making due allowance for the possibility of threats to civil liberties, this phenomenon has had beneficial effects.

2

The use of fingerprint evidence in this country dates from as long ago as 1902. In due course other advances of forensic science followed. But the dramatic breakthrough was the use of DNA techniques since the 1980s. The benefits to the criminal justice system are enormous. For example, recent Home Office statistics show that while the annual detection rate of domestic burglary is only 14%, when DNA is successfully recovered from a crime scene this rises to 48%. It is, of course, true that such evidence is capable of being misused and that courts must be ever watchful to eliminate risks of human error creeping in. But as a matter of policy it is a high priority that police forces should expand the use of such evidence where possible and practicable.

I. Retention of fingerprints and samples

3

It is not in doubt that the taking of fingerprints and samples from persons suspected of having committed relevant offences is a reasonable and proportionate response to the scourge of serious crime. What the present appeals are concerned with is the retention of such material in cases when a suspect is subsequently acquitted or the charge is discontinued. Until the coming into effect on 11 May 2001 of section 82 of the Criminal Justice and Police Act 2001, the retention by the police of such fingerprints and samples was unlawful under section 64 of the Police and Criminal Evidence Act 1984 (PACE). There was public disquiet that this rule sometimes enabled defendants who had in all likelihood committed grave crimes to walk free. Parliament decided to reverse it. Section 64(1A) of PACE, as substituted by section 82 of the 2001 Act, authorises the retention of such fingerprints and samples. It provides:

"Where -

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

(b) subsection (3) below does not require them to be destroyed,

the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution."

(Emphasis supplied)

This statutory provision lies at the heart of the present appeals. Its effect is that if a match is made between a fingerprint or a sample found at a crime scene and a fingerprint or sample taken from an individual before he was cleared of an earlier offence, the police will be able to use the underlying information in the investigation of the offence. It can play a significant role in the elimination of the innocent, the correction of miscarriages of justice and the detection of the guilty.

II. The Explanatory Notes

4

The mischief against which section 64(1A) is aimed is set out in the Explanatory Notes which, in accordance with the system introduced in 1999, accompanied the Bill in its progress through Parliament. Explanatory Notes are not endorsed by Parliament. On the other hand, in so far as they cast light on the setting of a statute, and the mischief at which it is aimed, they are admissible in aid of construction of the statute. After all, they may potentially contain much more immediate and valuable material than other aids regularly used by the courts, such as Law Commission Reports, Government Committee reports, Green Papers, and so forth. The Explanatory Notes relating to what became the new section 64(1A) read as follows:

"186. An additional measure has been included to allow all lawfully taken fingerprints and DNA samples to be retained and used for the purposes of prevention and detection of crime and the prosecution of offences. This arises from the decisions of the Court of Appeal (Criminal Division) in R v Weir [ 26 May 2000, unreported] and R v D (Attorney General's reference No. 3/1999) May 2000, [[2001] 2 AC 91]. These raised the issue of whether the law relating to the retention and use of DNA samples on acquittal should be changed. In these two cases compelling DNA evidence that linked one suspect to a rape and the other to a murder could not be used and neither could be convicted. This was because at the time the matches were made both defendants had either been acquitted or a decision made not to proceed with the offences for which the DNA profiles were taken. Currently section 64 of PACE specifies that where a person is not prosecuted or is acquitted of the offences the sample must be destroyed and the information derived from it can not be used. The subsequent decision of the House of Lords overturned the ruling of the Court of Appeal. The House of Lords ruled that where a DNA sample fell to be destroyed but had not been, although section 64 of PACE prohibited its use in the investigation of any other offence, it did not make evidence obtained as a failure to comply with that prohibition inadmissible, but left it to the discretion of the trial judge. The Bill removes the requirement of destruction and provides that fingerprints and samples lawfully taken on suspicion of involvement in an offence or under the Terrorism Act [2000] can be used in the investigation of other offences. This new measure will bring the provisions of PACE for dealing with fingerprints and DNA evidence in line with other forms of evidence."

(References supplied)

The light cast on the interpretation of section 64(1A) by the notes is limited but it does show exactly what problem Parliament was addressing.

5

The reference in the Explanatory Notes to fingerprints is readily intelligible. But it is necessary to make clear what DNA evidence is. The Forensic Science Service on its website under the legend "What is DNA?" give a simple and useful explanation. So far as material it reads as follows:

"DNA stands for Deoxyribonucleic Acid.

DNA is the chemical which is found in virtually every cell in the body and which carries genetic information from one generation to the next. The genetic information carried in DNA is in the form of a code or language which, when translated, determines our physical characteristics and directs all the chemical processes in the body.

Except for identical twins, each person's DNA is unique. Half of the DNA is inherited from our father and the other half from our mother.

DNA can be extracted from any cells that contain a structure called the nucleus. This includes blood, semen, saliva or hair samples."

To this general description it is necessary to add that in the present appeal a distinction has been drawn between DNA samples and DNA profiles derived from the samples. Dr. Bramley, Chief Scientist of the Forensic Science Service and Custodian of the National DNA Database, explained in a witness statement (para 10.2):

"… The samples consist of what is taken by the police under PACE, and any sub-samples or part samples retained from these after analysis. The DNA profiles are digitised information and it is this digitised information that is stored electronically on the National DNA Database together with details of the person to whom it relates."

III. The Questions

6

The principal question before the House concerns the compatibility of section 64(1A) with the European Convention on Human Rights as scheduled to the Human Rights Act 1998, and in particular with the Convention rights contained in articles 8 and 14. Respectively these articles provide as follows:

"Article 8: Right To Respect For Private And Family Life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 14: Prohibition Of Discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

In addition there is a separate question whether the policy of the Chief Constable to retain, save in exceptional circumstances, fingerprints and samples of acquitted individuals in all cases is lawful and compatible with the fundamental rights of individuals.

IV. The value of such real evidence

7

...

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