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Cite as: [2000] EWCA Crim 43

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R V Michael Clive Joseph Weir [2000] EWCA Crim 43 (26th May, 2000)

Case No: 99/4829/W2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of justice
Strand, London, wc2a 2ll
Friday 26 May 2000

Before:

LORD JUSTICE SWINTON THOMAS
MR. JUSTICE BUTTERFIELD
AND
MRS. JUSTICE RAFFERTY

____________________
Regina
V
Michael Clive Joseph Weir
____________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
____________________
Sir Derek Spencer, QC (instructed by Traymen & Co. of London appeared for the Appellant)
Mrs. R. Poulet (instructed by C.P.S London Branch appeared for the Respondent)
____________________
Judgment
As Approved by the Court
Crown Copyright ©

On the 12^th July, 1999, at the Central Criminal Court before Scott-Baker J. the appellant was convicted of Murder, Burglary and Assault Occasioning Actual Bodily Harm. He was sentenced to serve life imprisonment. He appeals against his conviction with the leave of the Single Judge.
In the afternoon of 28^th January 1998, an estate agent was showing clients a flat at 31 Whittington Court, Aylmer Road, London, N.2, the home of a Mr and Mrs Harris. They heard a cry and found Mr Harris lying in the hall. He had severe head injuries. Inside the flat Mrs Harris was found in the bedroom suffering from head injuries. The bedroom had been ransacked. An ambulance was called. Mr Harris died as a result of his injuries that he had sustained on 16^th June 1998.
On 1^st August 1997, the appellant had been charged with drugs related offences and a sample of saliva in the form of a mouth swab was taken from him and submitted for DNA profiling. On 29^th October, 1997, at the Highbury Corner Magistrates Court, the drugs related charges were discontinued and the appellant was discharged. It is conceded by the Crown that in accordance with the provisions of Section 64(1) of the Police and Criminal Evidence Act 1984, the sample should have been destroyed as soon as was practicable after that date. The sample of saliva appears to have been destroyed but the DNA profile obtained from it was not, and it remained on the DNA data base in Birmingham. The Crown accepts that the DNA profile should not have remained on the database in a searchable or accessible form.
On 3^rd February 1998, two non-matching gloves were found on a grass verge outside Whittington Court. On the 5^th February, the matching pair to those gloves was found in the disturbed bedroom at 31 Whittington Court. On the 10^th February, the four gloves were submitted to the Forensic Science Laboratory. On 13^th May, the National DNA Database Unit identified a match between a small blood stain on the inside of one of the gloves found on the grass verge and the appellant's profile. The blood of Mrs Harris was also found on the inside of this glove. The match with the appellant was made because the DNA profile from the sample of saliva taken from him on the 1^st August 1997, which ought to have been destroyed, remained on the DNA database. The Crown concedes that if the profile had been removed from the database, as it should have been, then there would have been no link between the appellant and the attack on Mr and Mrs Harris. That is a vital fact when we come to consider whether any evidence resulting from the link made between that profile and the appellant should have been admitted in evidence. The investigating officers were unaware that the information should not have been used by them under the provisions of Section 64(3B)(b) of the Police and Criminal Evidence Act, 1984.
On receipt of the information linking the appellant with the attack on Mr and Mrs Harris, he was arrested on the 4^th June. When interviewed he denied any involvement in the crime or that he was present at the scene. He consented to provide fingerprints and a sample of blood. On 5^th June, 1998, two samples of blood were taken from him. Those samples were examined by a forensic scientist and a match was obtained between that sample and the glove found on the grass verge. Expert evidence was called by the Crown to the effect that the person chosen at random having the same DNA profile is less than one in one thousand million. It is stressed on behalf of the Crown that it was evidence relating to the second sample obtained after the arrest on 4^th June, 1998, and the DNA profile obtained from it as opposed to the profile obtained from the sample taken on 1^st August 1997, which was led by the prosecution at the appellant's trial. The prosecution did not lead nor make any reference to the original sample of saliva and the DNA profile obtained from it.
It was submitted on behalf of the appellant that the evidence obtained from the DNA profile should not be admitted at the trial. That application was heard by the Recorder of London on 17^th May, 1999. The Recorder of London ruled that the evidence was admissible. He said:

"I consider that in the circumstances of this case, the prosecution rely plainly on the second sample and the second sample alone; they do not emphatically rely on the first sample. It is clear that there was a significant impropriety, very likely unwitting, in the making of the arrest on the information obtained from the database and therefore the second sample would not otherwise have been obtained.

That impropriety, significant though it was, does not, in my view, render the evidence of the second sample that is the evidence of Mr Eames which is the subject of objection, inadmissible as a matter of statutory interpretation."
The Recorder based his reasoning on the fact that the Crown relied on the evidence obtained from the second sample as opposed to the evidence obtained from the first sample which should have been destroyed. Although he made reference to the provisions of Section 64(3B)(b) of the Police and Criminal Evidence Act, 1984, to which we will refer in more detail below, he did not in terms deal with the submission that Parliament had provided in the section that the sample should not be used for the purposes of any investigation of an offence. The Recorder then dealt with the second submission made on behalf of the appellant, namely that the evidence should be excluded under the provisions of Section 78 of the Police and Criminal Evidence Act. He concluded that the admission of the evidence would not have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Accordingly the evidence was admitted in the trial, which subsequently took place before Scott-Baker J. and the appellant was convicted.

It is submitted by Sir Derek Spencer on behalf of the appellant that the Recorder of London was wrong to rule as he did. He submits, first, that the plain wording of Section 64(3B)(b) of PACE, 1984, is to exclude the evidence resulting from any link between the sample of a person entitled to its destruction for the purposes of any investigation of an offence. He submits that the wording of the section does not permit the exercise of a Judge's discretion to admit such evidence at the trial.

Section 64(3B) which was inserted in the Act by the Criminal Justice and Public Order Act, 1994, provides:
"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 the offence".
Sir Derek submits that the Section is wide in its terms. The embargo was placed by Parliament on information derived from the sample over all stages of the investigation. The sub-section was framed as it is in order to preserve the liberty of the subject and the subject's privacy and must be given full effect. He submits that it is no answer to his submission to say that there is a possibility of undesirable results if his interpretation of the section is correct. It is, he submits, inevitable that anomalies will arise. He submits that the Section strikes a balance between the rights of the State and the rights of the citizen and that the exclusion of information derived from a sample which should have been destroyed in evidence, was precisely as intended by the recommendations of the Royal Commission on Criminal Justice which formed the basis of these amendments to PACE. Sir Derek submits that if he is wrong in his primary argument, then the Recorder of London was wrong to admit the evidence under the provisions of Section 78. The first issue that arises on this appeal is identical to the issue raised in The Attorney General's Reference, R v B which we heard immediately prior to the hearing of this appeal. In our judgment in that Reference, we set out the relevant law in some detail and the conclusions that we had reached. In those circumstances, it is not necessary for us to repeat them in this judgment.
Mr Horwell for the Crown in this appeal, adopted the submissions made by Mr Perry in the Attorney General's Reference in so far as they are relevant to this case. As we have stated, Mr Horwell concedes that the profile of the appellant taken from the sample of saliva which was obtained on 1^st August 1997, should have been removed from the relevant database as soon as was practicable after the proceedings were discontinued against him on 29^th October, 1997. If that had occurred, as it should have, there would have been no link between the appellant and the attack on Mr and Mrs Harris. Mr Horwell, however, submits that sub-section (3B)(b) is directed at "information derived from the sample" and not at the sample itself. Mr Horwell's submission is that in English law, evidence which is obtained improperly or even unlawfully remains admissible, subject only to the power of the trial judge to exclude it in the exercise of his discretion under Section 78 of the Police and Criminal Evidence Act, 1984. He relies on the well known passage in the speech of Lord Diplock in R v Sang [1980] AC 402 at page 437.

Mr Horwell's primary submission is that whereas Section 64(3B)(b) prohibited the use of the information derived from the profile from the first sample from being used for the purpose of the investigation into the murder of Mr Harris, the section refers to the investigation and does not refer to the trial process. Therefore, although prohibited information was used in the course of the police enquiry which was a breach of the sub-section, the sub-section itself does not state that evidence so obtained shall not be admitted in evidence at a trial. It is submitted that if Parliament had intended that such evidence should be excluded as a matter of law, Parliament would have said so and it would appear in the sub-section. He draws an analogy with Section 9(1) of the Interception of Communications Act 1985, which provides that in the stated circumstances "in any proceedings before any court or tribunal no evidence shall be adduced and no question in cross-examination shall be asked". He submits that if Parliament had intended to exclude evidence resulting from information derived from the sample which should have been destroyed, then Parliament could have readily used similar phraseology.
For the reasons given in the Attorney General's Reference, re B, we conclude that the submissions made by Sir Derek Spencer are correct. In our judgment the words used in Section 64(3B)(b) are plain and the effect is to exclude in (a) the evidence of the sample and profile and in (b) evidence arising from the use of information derived from the profile for the purposes of any investigation of the offence.
As we stated in our judgment in the A.G's reference, the Royal Commission plainly intended that a balance should be struck between the interests of the State and the interests of the citizen and, following those recommendations, Parliament struck the balance as they did, and enacted that information derived from the sample of the person entitled to its destruction shall not be used in evidence against the person so entitled or for the purposes of any investigation of an offence. It is, in our judgment, impossible, either in relation to the section itself or in endeavouring to ascertain the intention of Parliament to draw a distinction between sub-section (a) and sub-section (b) so as to exclude the exercise of the Judge's discretion in (a) but to say that such a discretion exists in relation to (b). In our judgment the court has no discretion in respect of either.
Accordingly the appeal against conviction must be allowed and the conviction must be quashed. In those circumstances it is not necessary for us to deal with the question that arises under Section 78.
This appellant was convicted of a brutal murder on the compelling evidence of the DNA sample. In the Attorney General's Reference the defendant was acquitted on the direction of the Judge in a case involving a very serious rape on an elderly woman where there was again, compelling DNA evidence. This is the inevitable result of the balance struck by Parliament in the amendment to the Police and Criminal Evidence Act 1984 by the 1994 amendment. As we stated in the Attorney General's Reference, it is not appropriate for the Court to say whether, in the light of the conclusions that we have reached, this issue should be re-visited by the authorities or by Parliament.
LORD JUSTICE SWINTON THOMAS: For the reasons given in the judgment which has been handed down, the court quashes this conviction.
MR. HORWELL: The prosecution have given notice of their intention to appeal. As Mr. Perry mentioned this morning, the issue of bail arises.
LORD JUSTICE SWINTON THOMAS: I suppose, as a matter of formality, although Mr. Perry did it, I think he was only, so to speak, mentioning the matter. I suppose formally you ought to make that application.
MR. HORWELL: I now do so.
LORD JUSTICE SWINTON THOMAS: You pose the same question as Mr. Perry? No. Perhaps not.
MR. HORWELL: I have only seen this just before coming into court today.
LORD JUSTICE SWINTON THOMAS: We will certainly, from a time point of view, treat the application as having been made today. Would you kindly put in an application in the usual form as to how you put it.
MR. HORWELL: Mr. Perry shall hereafter be taking both appeals. I am withdrawing from the case. I may quibble with one of the words in the question.
LORD JUSTICE SWINTON THOMAS: It is because of the different format of the two cases. It may be that your application notice will be in a slightly different form to Mr. Perry because of its being an Attorney-General's question in the other case.
MR. HORWELL: The issues that now arise are obvious for the court's consideration. We suggest that the court should have regard, in deciding whether or not the appellant should be admitted to bail, to these factors. The gravity ----
LORD JUSTICE SWINTON THOMAS: You oppose it?
MR. HORWELL: Yes. I ask the court to consider whether this is an appropriate case for him to be detained. The factors which we say are obvious are the gravity of the crime, and unusually this can be said. This court has not sought to doubt the verdicts of the jury. The court has accepted that the appellant was convicted on the compelling evidence that was placed before the jury. This court has ruled that that evidence was inadmissible. The court has not sought to doubt the factual basis upon which the jury reached its verdicts. We submit that this is a case which could and should be expedited hereafter. This is a case in which the appellant, in our submission, could and should be detained while that process takes place. Those are the issues we ask the court to consider.
MR. JAMESON: I appear on behalf of this appellant. I say on his behalf and express the gratitude that he has for the judgment that has been handed down. This is a case where bail must be granted. This appellant appeared at the Central Criminal Court charged with a serious offence, the most serious offence. His conviction was based on evidence which this court has now found to be inadmissible. As a result of that his conviction has been quashed, and for that reason it would be wrong and against the principles of natural justice for a defendant, whose conviction has been quashed quite lawfully by this court to be detained in custody any longer. I do not know how long the appeal process is going to take. Mr. Weir has had his conviction quashed. He should be admitted to bail. If you are minded to grant bail today I do have an address if the court is considering residence. I do ask that this appellant be admitted to bail forthwith.
LORD JUSTICE SWINTON THOMAS: Mr Horwell, is there anything you want to add? If we should grant bail -- I do not know one way or the other whether we will -- do you ask that any conditions be attached?
MR. HORWELL: Obviously residence must apply.
MRS JUSTICE RAFFERTY: What about reporting?
MR. JAMESON: I am sure that there would be no problem with that.
LORD JUSTICE SWINTON THOMAS: Has he a passport?
MR. JAMESON: The position is this. The appellant lost his passport and reported it stolen. At present he does not have a passport. He is happy to give an undertaking not to apply for a passport if admitted to bail.
LORD JUSTICE SWINTON THOMAS: Mr. Jameson, who acts on behalf of the appellant, applies for bail. That is opposed by Mr. Horwell on behalf of the Crown. He has indicated that the Crown wish to appeal to the House of Lords against the judgment we have given this morning. He points to the gravity of the crime. He points also to the fact that in the judgment which we have given we have not doubted the verdict of the jury. We have those points very much in mind but, none the less, the conviction having been quashed, we consider that it is right that the appellant should be granted bail on the condition that he surrenders to this court as and when directed following the disposal of any appeal by the House of Lords. There will be a condition of residence. The address will be handed in following this hearing to the court. We will make it a condition that the appellant reports twice daily at a police station to be agreed between the defence and the Crown, and at times similarly to be agreed. We will direct that the appellant should surrender any passport that he has to the police station to which he is reporting. We are told that he has lost his current passport. If that is found, it must be surrendered as a condition of the bail. We accept the undertaking that has been given on his behalf and with his consent through counsel, not to apply for an alternative passport until any appeal to the House of Lords has been finally disposed of.
MR. HORWELL: The police station that is convenient is Hackney. That will be acceptable to the prosecution. If it were to be said that Mr. Weir should surrender himself at 6 pm today, he can be given the times by the police officer at that station. There could be no uncertainty.
LORD JUSTICE SWINTON THOMAS: Mr Jameson, explain all this to Mr. Weir before he goes.
MR. JAMESON: I will, my Lord.