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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> B, R v  EWCA Crim 42 (26th May, 2000)
Cite as:  Crim LR 994,  EWCA Crim 42,  2 Cr App R 416,  3 WLR 1164,  2 Cr App Rep 416,  4 All ER 360
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Case No: 99/7811/R1
IN THE COURT OF APPEAL
Royal Courts of justice
Strand, London, wc2a 2ll
Friday 26 May 2000
"Where samples are required to be destroyed under sub-sections (i), (ii) or (iii) above, and sub-section 3(A) does not apply, information derived from the sample of any person entitled to its destruction under sub-section (i), (ii) or (iii) 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 material facts giving rise to the prosecution were these. In the early hours of the morning of the 23rd January, 1997, HB, a 66 year old woman, was raped and assaulted in the bedroom of her house in London. The intruder, who was unknown to HB, had gained entrance to the premises by scaling a garden fence and forcing open a ground floor window. He made his way into the bedroom where he threatened HB before tying her hands behind her back with flex. He then punched HB several times and raped her per anum. Following the rape, HB was put by the intruder into a hallway cupboard, and the door to the cupboard was blocked by articles being placed against it. The intruder left the premises, taking a quantity of money and other items. HB was found, still in the cupboard, by police officers at shortly before 7p.m. that same day. The offence of rape was clearly of the utmost gravity.
HB was medically examined and external swabs were taken from the areas around her vaginas and anus. That is an important fact in the context of this reference. On 17th March, 1997, semen was found on both the swabs. On the 20th March, 1997, a DNA profile was obtained from the semen. On 15th April the DNA profile obtained from the semen was placed on the National DNA Data base.
On the 4th January 1998, the Defendant was arrested in respect of an unrelated offence of burglary. On his arrest he gave a false name. Following his arrest and charge in respect of the burglary, which is a recordable offence under the provisions of PACE, a mouth swab saliva sample was lawfully taken from the Defendant without his consent. The sample was taken under the provisions of Section 63 (3A) of PACE. A saliva sample can be taken from a person without consent under Section 65 of PACE if he has been charged with a recordable offence. At the time that the sample was taken, the Defendant was told that the sample might be used for a speculative search, namely a check against other samples held in police records.
On the 4th January, 1998, when the Defendant was arrested and charged with the unrelated offence of burglary, he had a previous conviction, dated 17th July 1995, for an offence of affray. That fact was unknown to the police officers who were dealing with the Defendant at that time, because he had given the false name. In consequence, the officers could have taken the mouth swab saliva from the Defendant by reason of the previous conviction as opposed to taking it by reason of the offence of burglary in accordance with Section 63(3B) in which event it would not have had to be destroyed. That fact is relied upon by Mr Perry, who appears for the Attorney General on this Reference, as indicating that Parliament could not have intended the interpretation to be placed on Section 64(3B) that was placed on it by the trial Judge and as illustrating the illogical consequences, as he would submit, of placing that construction on the Section.
The sample taken from the Defendant on 4th January, 1998, was submitted to the DNA data base and received there on 6th January. On the 12th May the sample was submitted for DNA profiling. On 23rd August 1998, the Defendant was acquitted of the offence of burglary in respect of which he had been arrested and charged on 4th January. On 23rd September, a full DNA profile was obtained from the Defendant's sample and this profile was loaded onto the DNA Data base. It is conceded on behalf of the Attorney General that by reason of his acquittal, the sample taken from the Defendant on 4th January should have been destroyed under the provisions of Section 64(1) of PACE "as soon as is practicable after the conclusion of the proceedings". The fact that the sample should have been destroyed is central to the arguments and submissions that have been made on this reference.
In fact the Defendant's sample had not been destroyed, and the information derived from it, namely the DNA profile, remained on the DNA Data base. On 6th October 1998, a match was made between the DNA profile obtained from the swabs taken from HB and the DNA profile obtained from the saliva taken from the Defendant. The information concerning the match was passed to the officer investigating the offences of rape etc., committed against HB by a letter dated 6th October 1998. The letter stated that the information was "for intelligence use only", and that a blood sample was required from the suspect in order to confirm the result. The letter also stated:-
"Please ensure that the DNA record for this individual is legally held on the data base in accordance with the Criminal Justice and Public Order Act 1994 as a failure to do so may invalidate the result".
It is conceded that the DNA record was not legally held because it should have been destroyed under Section 64(1). Following the receipt of that letter enquiries ensued in relation to the Defendant's antecedents and it was ascertained that he had been acquitted of the offence of burglary. The Defendant was arrested on 15th October, 1998 in respect of the offences committed against HB. At the time of his arrest the Defendant was in possession of a Stanley knife and he was then further arrested for having a bladed article in a public place which is a recordable offence. That is also a fact relied upon by Mr Perry in that it was open to the police to take samples in relation to that offence. The Defendant was interviewed and denied being involved in the offences against HB. At the conclusion of the interview a police Superintendent gave authority for an intimate sample of blood to be taken to prove or disprove the Defendant's involvement in the offences of the 23rd January, 1997. He refused to give his consent to the taking of an intimate sample with the result that the Superintendent authorised the taking of a non-intimate sample of plucked head hair. On the 16th October the sample of plucked hair was submitted to the Forensic Science Laboratory in Wetherby. On 18th October the Laboratory confirmed that the DNA profile taken from the plucked head hair from the Defendant matched the DNA profile on the swabs taken from HB. In the opinion of the Forensic Scientist, the frequency of occurrence of obtaining such a match if the DNA on the swabs had come from a person unrelated to the Defendant was one in seventeen million. On 18th October the Defendant was interviewed again and denied his involvement. He was then charged with Burglary, Assault and Rape. On the 17th December he was committed for trial and on the 18th June, 1999 the Judge ruled that the sample should have been destroyed following his acquittal on 23rd August 1998, and that it could not be used to found an investigation into the offences committed against HB.
As we have related, the prosecution case depended solely on the DNA evidence. The Crown relied not on the sample taken on the 4th January, 1998, but on the sample taken on the 15th October, 1998. Accordingly the provisions of Section 64(3B)(a) did not apply. However the information derived from Sample 1, the sample taken on 4th January, 1998, had led to the arrest of the Defendant on 15th October with the result that information derived from the sample was used for the purposes of an investigation of an offence which brings into play the provisions of Section 64(3B)(b).
Judge Hitching heard submissions over a period of two and a half days. Mrs Poulet Q.C., who appeared for the Defendant at the trial and on this Reference submitted that the Judge should either stay the proceedings as an abuse of process or, alternatively, if he ruled that the evidence of the DNA profile was admissible as a matter of law, he should exclude it under the provisions of Section 78 of the Police and Criminal Evidence Act, 1984. The Judge found that as a matter of law the evidence was not admissible. Lest he should be wrong in making that finding, he went on to consider the provisions of Section 78 and concluded on the facts, that if he had a discretion to admit the evidence, he would exclude it. The Attorney General submits that the Judge was wrong in respect of both rulings.
We turn to consider the statutory framework.
By Section 65 of PACE 1984, as amended by the 1994 Act, a non-intimate sample means:
a) a sample of hair other than pubic hair;
b) a sample taken from a nail or from under a nail;
c) a swab from any part of the body including the mouth, but
not from a body orifice;
d) saliva; or
e) a footprint or similar impression of any part of the body
except the hand.
Under Section 63 a non-intimate sample can be taken without consent:
a) if the suspect is in police detention or in police custody
on the authority of a court and an officer of at least
the rank of Superintendent authorises the taking of a sample because he has reasonable grounds for:
i) suspecting the involvement of the suspect
in a recordable offence; and
ii) believing that the sample would tend to
prove or confirm the involvement of a suspect
in that offence.
b) whether or not the suspect is in a police station, if he has been charged with a recordable offence or informed that he will be reported for such an office; and......
c) if he has been convicted of a recordable offence.
A recordable offence is an offence which is recordable on the Police National Computer. These offences are:-
a) all offences punishable by imprisonment;
b) certain other offences, including having an
article with a blade or point in a public place
contrary to Section 139 of the Criminal Justice
By Section 63, the suspect must be informed that the sample may be the subject of a speculative search.
The relevant provisions of Section 64 are:
1) 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, .........be destroyed
as soon as is practicable after the conclusion of the
2) If -
a) fingerprints or samples were taken from a person in
connection with such an investigation; and
b) it is decided that he shall not be prosecuted for the
offence and he has not admitted it and been dealt with
by way of being cautioned by a constable,
they must ........be destroyed as soon as is practicable after that
decision is taken.
(3B) where samples are required to be destroyed under sub- sections (1), (2) or (3) above, and sub-section (3A) above does not apply information derived from the sample of any person entitled to its destruction under sub-section (1), (2) or (3) shall not be used -
a) in evidence against the person so entitled; or
b) for the purposes of any investigation of
This Reference concerns the interpretation of Section 64(3B)(b).
Mr Perry submits that Section 64(3B)(b) should not be read literally and that it is not mandatory for a court to exclude information derived from the sample which is required to be destroyed which has been used for the purposes of an investigation of an offence. He submits that the court retains a discretion to admit it. He concedes that the sample should have been destroyed following the Defendant's acquittal on the 23rd August, 1998, and prior to the match being made on the 6th October, and that it was information derived from that match which led to the Defendant's arrest. He also concedes that the sample and any profile obtained from it could not have been used in evidence against the Defendant by reason of the provisions of Section 64(3B)(a) and that the court would have no discretion to admit it. However he points to the fact that the Crown did not seek to use the sample or the profile derived from it which ought to have been destroyed, that is sample 1, taken on 4th January 1998, but on the sample and resulting profile taken on 15th October, 1998, which was lawfully taken. He then seeks to distinguish the provision set out in Section 64(3B)(a) from that set out in 64(3B)(b).
Mr Perry's principal submission to us was that a literal reading of Section (3B)(b) would produce very peculiar and anomalous results. He gave examples. He submitted that Parliament could not have intended such results when enacting the amendments to the 1984 Act. He submits, clearly rightly, that by reference to other amendments to PACE made by the Criminal Justice and Public Order Act, 1994, Parliament was intending to broaden the legitimate use of DNA samples. Accordingly he submits further that it would be odd if, in Section 64(3B)(b), Parliament intended to restrict the eventual use of DNA profiles to the extent of excluding its use altogether in the circumstances defined in the Section. Mr Perry points to the fact that if the Defendant had not given a false name when he was arrested on the 4th January 1998, but had given his correct name with the result that the police would then know that he had a relevant previous conviction, then information from the sample could have been properly used for the purposes of a speculative search, and he submits that Parliament cannot have intended that in those circumstances a court should be debarred from admitting evidence which, but for the use of the false name, could have been lawfully obtained and admitted at the trial without objection.
Mr Perry placed reliance on passages of the judgments of this court in R v Nathaniel  2 Crim.App.R.565 and R v Kelt  1999 Crim.App.R.372. It is important to note that the convictions in those cases occurred prior to 10th April 1995, the date on which the amendments to the Police and Criminal Evidence Act, 1984, made by the Criminal Justice and Public Order Act, 1994, came into force.
In Nathaniel the appellant was convicted of a rape committed in 1989. The primary evidence linking him to that rape consisted of a DNA profile which was obtained from a sample taken from him in relation to offences in respect of which he was acquitted and which should have been destroyed. The court, presided over by the Lord Chief Justice, Lord Taylor, held that the evidence was admissible but should have been excluded, on the facts of the case, under Section 78 PACE. On page 570 Lord Taylor said:-
"The link between the appellant's DNA profile and that of the crime sample having been conveyed to the police, even if it be held that it was wrongly conveyed, they were entitled and indeed duty bound in our view to act upon that information. The investigation of very serious crime is not a game. However the information reached the police, if it gave rise to reasonable grounds for suspecting the appellant, the police would have been in dereliction of their public duty if they had failed to investigate the matter. That, in our view, was the position at the time of this appellant's arrest."
However, Lord Taylor foresaw the problem that arises in this case when he added:
"It is true that the Criminal Justice and Public Order Act 1994 introduces an amendment which for the future restricts not only the use of sample which ought to have been destroyed as evidence, but also their use for the purposes of investigation".
In Kelt the appellant was convicted of Murder. A sample of his blood was taken which, it was submitted, ought to have been destroyed. The Crown submitted that the statutory duty to destroy the sample had not then arisen. In giving judgment Kennedy L.J. said at page 375:
"In any event, we are satisfied for the purpose of this appeal that despite the warnings of Mr Batten as to the danger of undermining the statutory scheme, the words of the statute should not be interpreted as he contends. Of course, the police must act in good faith, but the public interest would not be served if a sample lawfully obtained in connection with one investigation could not be compared with blood left at the scene of another serious crime. As Mr Bate in the course of his argument has pointed out, if a serial rapist were to be arrested and were to give a sample in the course of an enquiry into an offence which he did not commit, it can hardly have been the intention of Parliament that the sample which he gave could not then be compared with a whole series of specimens obtained from rapes which he had committed. Of course, there is force in the arguments which Mr Batten had advanced, but if Parliament had intended that a sample obtained in connection with one inquiry could only be used in evidence in connection with that inquiry - as opposed to envisaging that generally it would be only so used - it would have said so, and it did not. In our judgment the trial judge was right to admit the evidence which established the match......"
If the interpretation placed on Section 64(3B)(b) by the Crown on this Reference is wrong, then that passage in the judgment of the Court in Kelt can no longer stand.
In R v Sang  AC 402, Lord Diplock said in a well known passage at page 437:
"Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, he (the Judge) has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained. It is no ground for the exercise of discretion to exclude that the evidence was obtained as the result of the activities of an agent provocateur".
Mr Perry relies on that passage in this case but it is important to observe that Lord Diplock was considering "relevant admissible evidence".
The amendments to PACE contained in the Sections of the 1994 Act with which we are concerned on this Reference followed recommendations made by the Royal Commission on Criminal Justice. The relevant paragraphs contained in the recommendations in their report (CM2263) are:-
34. We have had proposals put to us by the police service for a clearer legislative approach to the taking and retention of samples for the purpose of maintaining and consulting DNA data bases. The police service point out that it is not uncommon for persons arrested for sexual offences to have previous convictions for other types of serious offence, for example, burglary. In order to assist in the identification and conviction of such offenders the police service propose that there should be power to take non intimate samples without consent for the purpose of DNA analysis from all those arrested for serious criminal offences, whether or not DNA evidence is relevant to the particular offence concerned. The relevant data of those who are subsequently convicted would be retained so that, in any subsequent investigation where the identity of the defendant is unknown but DNA evidence comes to light, that evidence can be checked against the samples in data base. The police service also propose that intimate DNA samples should be capable of being taken without consent, under a court order in cases where a person is reasonably suspected of having committed a sexual offence.
35. We agree that the rules need to be clear. We do not accept that the police need the power to take intimate samples without consent, subject to our recommendation at paragraph 29 above that saliva be reclassified as a non-intimate sample. Because, however, DNA profiling is now so powerful a diagnostic technique and so helpful in establishing guilt or innocence, we believe that it is proper and desirable to allow the police to take non-intimate samples (e.g. saliva, plucked hair etc) without consent from all those arrested for serious criminal offences, whether or not DNA evidence is relevant to the particular offence, and so recommend. The relevant DNA data or samples would be retained for subsequent use if the person concerned is convicted but not otherwise unless retained under the conditions recommended in the next paragraph for the purpose of a frequency data base.
36. The police service have argued that there should be clear legal provisions governing DNA samples kept on "frequency data bases", which are necessary for giving estimates of the likelihood of a DNA sample matching a sample in the data base (similar data bases are not necessary for fingerprints because it has long been accepted that each person's fingerprint is unique). The police argue that DNA data bases should not be confined to samples from convicted persons. We see no objection to the retention for data base purposes of any DNA samples obtained by the police in the course of their investigations provided that these are retained by an independent body. Where, however, a defendant is acquitted or a person is not proceeded against, it should only be possible to keep the sample on the data base for statistical purposes, as opposed to the purpose of assisting in further investigations, and there should be strong safeguards to ensure that such samples can no longer be linked by the police or prosecution to the persons from whom they were taken. The independent organisation responsible for keeping the data base may, however, need to be able to continue to identify the originators of the samples in order to avoid duplication".
A member of this Court, Rafferty J., was a member of the Royal Commission. The two important passages in the recommendations in our view are, first, that which provided that samples would be retained for subsequent use if the person is convicted but not otherwise, save under the conditions recommended for the purposes of a frequency data base. Second, the recommendation that where a defendant is acquitted or not proceeded against, the sample should be kept for statistical purposes only as opposed to the purpose of assisting in further investigations and that there should be strong safeguards to ensure that such samples can no longer be linked by the police or the prosecution to the persons from whom they were taken. Such a linking has been described as "the impermissible link".
In our judgment, it is clear that in making their recommendations the Royal Commission was striking a balance between the importance of investigating serious crime and convicting those who have committed serious crimes on the one hand and the rights and interests of the citizen on the other.
The amendments to the Police and Criminal Evidence Act, 1984, introduced by the Criminal Justice and Public Order Act, 1994, in relation to DNA samples follow closely the recommendations of the Royal Commission. The taking, retention and use of samples was extended, but clear safeguards were provided in respect of those who were accused but were subsequently acquitted or not proceeded against. Mr Perry accepts that proposition but, nonetheless, submits that, whereas Section 64(3B)(a) which provides that a sample which is required to be destroyed shall not be used in evidence against the person so entitled, is mandatory, the provision contained in Section 64(3B)(b) that information derived from the sample of the person entitled to its destruction shall not be used for the purposes of any investigation of an offence, is directory only. Accordingly, he submits, the Judge has a discretion to admit the evidence so obtained. He submits that if Parliament had intended to exclude such a discretion, it would have said so.
In support of his submission Mr. Perry invited our atention to a passage in Bennion: Statutory Interpretation (Third Edition 1997) as follows:
Mandatory and Directory Requirements.
(1) This section applies where -
(a) a person ("the person affcted") may be affected by a thing done under an enactment, and
(b) the legal affectiveness of that thing is subject to the performance by the same or any other person ("the person bound") of some statutory requirement ("the relevant requirement"), and
(c) the relevant requirement is not complied with, and
(d) the intended consequence of the failure to comply is not stated in the legislation.
(2) In ascertaining, in a case where this section applies, the effect of the failure to comply with the relevant requirement, it is necessary to determine whether the requirement was intended by the legislature to be mandatory or merely directory. For this purpose it may be relevant to consider whether the person affected and the person bound are the same, and whether the thing done under the enactment is beneficial or adverse to the person affected.
(3) Where the relevant requirement is held to be mandatory, the failure to comply with it will invalidate the thing done under the enactment.
(4) Where the relevant requirement is held to be merely directory, the failure to comply with it will not invalidate the thing done under the enactment; and the law will be applied as nearly as maybe as if the requirement had been complied with.
In the commentary it is said:
"It would be Draconian to hold that in every case failure to comply with the relevant requirement invalidates the thing done. So the courts' answer has been to devise a distinction between mandatory and directory duties."
Mr. Perry submits that to apply Section 64(3B)(b) so as to invalidate the result of an investigation of a serious crime would be absurd, and cannot have been intended by Parliament. Accordingly the requirement should be construed as being directory and not mandatory. The difficulty with that argument, in our judgment, lies in the wording of the Section itself coupled with the fact that the intended consequence of the failure to comply with it is plainly stated in the legislation.
Mrs. Poulet submits that the wording of Section 64 is clear and plain. The statute prohibits any link to be made between the sample which should have been destroyed and the investigation. Accordingly,the admission of any evidence resulting from such an investigation cannot be admitted because Parliament has prohibited it. In relation to the passage in Bennion relied upon by Mr. Perry she invited our attention to a further passage where this is said:
"Where an Act confers a right to interfere with the freedom of any individual, the prescribed conditions are treated as mandatory and must be strictly complied with."
In our judgment, despite the very able and helpful submissions made to us by Mr Perry, Mrs Poulet's submissions are correct and the Judge came to the right conclusion in his Ruling. 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 data base 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 or that 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 puspose 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)-(3).
The Section expressly and without qualification forbids the use of the sample which is required to be destroyed either in evidence or for the purposes of any investigation. It is plainly mandatory and not directory. If the sample, which includes the profile, is used for the purposes of an investigation, then all evidence resulting from that investigation must be excluded. Accordingly, in our judgment, Judge Hitching was right to rule as he did on admissibility, and it is not necessary for the Court to consider his ruling under Section 78.
Accordingly we answer the question posed as a point of law in the negative. We should add this caveat. We think it is possible to envisage circumstances where there is other evidence wholly independent of the DNA sample which was required to be destroyed. In such a case the Crown might well be permitted to proceed on the evidence which was not in any way linked to the DNA sample.
We heard this Reference, together with an appeal in the case of R v Weir. In the present case, there was compelling evidence against the Defendant. The Judge was obliged to rule, rightly in our judgment, that the evidence should not be admitted with the result that the prosecution failed. In Weir the appellant was convicted, again on compelling evidence of a particularly brutal murder. We have allowed his appeal against conviction on grounds that are identical to those that arise in this case. We have no doubt that the Royal Commission and Parliament intentionally struck the balance that they did which results in the exclusion in these two cases of that powerful evidence. Whether, in the light of these two cases and the repercussions in relation to other cases, the authorities or Parliament wish to revisit Section 64 of PACE is not a matter for this Court but there can be no doubt as to the seriousness of the consequences.