Attorney General's Reference No. 3 of 1999

HOUSE OF LORDS

Lord Steyn Lord Cooke of Thorndon Lord Clyde Lord Hutton Lord Hobhouse of Wood-borough

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

ATTORNEY GENERAL'S REFERENCE NO. 3 OF 1999

ON 14 DECEMBER 2000

LORD STEYN

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…