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Cite as: [2000] UKHL 63

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Attorney General's Reference No. 3 of 1999 [2000] UKHL 63; [2001] 2 WLR 56 (14th December, 2000)

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 the match between the two DNA profiles, the police arrested the defendant on 15 October 1998 in respect of the offences committed against the elderly victim in January 1997. In the course of an interview the defendant denied that he was involved in the offences. He refused to give his consent to the taking of an intimate sample. A police superintendent authorised the taking of a non-intimate sample of plucked head hair. On 18 October 1998 a forensic science laboratory confirmed that a DNA profile obtained from the plucked hair taken from the defendant matched the DNA profile on the swabs taken from the victim. In the opinion of the forensic scientist the frequency of the occurrence of obtaining such a match, if the DNA on the swabs had come from a person unrelated to the defendant, was one in 17 million. The defendant was charged with burglary, assault and rape.

II. Section 64 of PACE

The question was what impact the failure to destroy the sample had on the case against the defendant. The courts below were principally concerned with the interpretation of section 64(1) read with section 64(3A) of PACE. Subsection 1 of section 64 is to the following effect:

(a)

(b)

Subsections (2) and (3) make corresponding provision for cases where it is decided not to prosecute and where the person concerned is not suspected of having committed an offence. Subsection 3(B) provides as follows:

(a)

(b)

The reference before the House involves the interpretation of part (b) of this provision.

III. The trial

The prosecution case depended solely on DNA evidence. It is however, necessary to distinguish between the two samples taken from the defendant. Information derived from the sample taken on 4 January 1998 led to the defendant's arrest on 15 October 1994 which in turn led to the taking of a new sample from the defendant. At the trial the prosecution did not adduce evidence relating to the 4 January 1998 sample. The prosecution relied solely on the match between the DNA profile of the sample taken on 15 October 1998 from the defendant and the DNA profile obtained from the swabs taken from the victim.

It was conceded by the prosecution before the judge that under section 64(1) of the PACE the saliva sample taken on 4 January 1998 should have been destroyed after his acquittal on the unrelated burglary charge; that such information was used in the investigation of an offence in contravention of section 64(3B)(b); and that this led to the arrest of the defendant on 15 October 1998.

The defence submitted that the evidence based on information derived from the sample of the 15 October 1998 was rendered inadmissible by the mandatory terms of section 64(3B). The prosecution submitted that section 64(3B)(b) was merely of directory effect. The judge ruled that the provision was mandatory and that the evidence tendered by the prosecution was inadmissible. But the judge also concluded that, if, section 64(3B) was merely of directory effect, he would have had to exercise his discretion under section 78 of PACE to exclude the DNA evidence. Given these conclusions the prosecution case collapsed and despite what the Court of Appeal subsequently described as 'compelling evidence,' the judge directed a verdict of not guilty.

IV. The Court of Appeal

The Attorney-General referred the matter to the Court of Appeal. He acted under section 36 of the Criminal Justice Act 1972. The question referred was as follows:

The question raised an issue of the admissibility of evidence which depended on the proper construction in its contextual setting of section 64(3B)(b) of PACE. The Court of Appeal answered this question in the negative.

The judgment of the Court of Appeal is reported: Attorney-General's Reference (No. 3 of 1999) [2000] 3 WLR 1164. The court attached considerable importance to paragraphs 34, 35 and 36 in the report of the Royal Commission on Criminal Justice (1993) (Cm. 2263), pp. 16-17: see 1179G-1180H. In evaluating this material the court had the advantage that one of its members (Rafferty J.) had been a member of the Royal Commission. Giving the judgment of the court Lord Justice Swinton Thomas observed (at 1182C-G):

"Section 64(3B) 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."

Towards the end of this judgment Lord Justice Swinton Thomas referred to the case of Reg. v. Weir (unreported, 26 May 2000) which was heard by the Court of Appeal together with the reference in the instant case. In Weir's case the appellant was convicted of a particularly brutal murder on what Lord Justice Swinton Thomas also described as compelling DNA evidence. Applying the reasoning in the judgment on reference to the House the Court of Appeal felt compelled to quash the conviction. In giving judgment in the case of Weir the Court of Appeal observed:

Turning back to the judgment in the case directly under consideration, the Court of Appeal did not deal with the alternative basis of the judge's decision, namely the judge's view that, in any event he would have had to exclude the DNA evidence under section 78 of PACE.

V. The question before the House:

The Court of Appeal referred the very question upon which it had been called to rule to the House. Whatever the opinion of the House on this question the acquittal of the defendant stands. It is necessary therefore to consider the point about the correct interpretation of section 64(3B) not only in the light of the facts of the present case but also in the context of other cases which may arise. It was agreed between counsel that the House was not called upon to travel beyond this point, notably we are not asked to consider the correct approach of a judge in dealing with such an issue under section 78. For the avoidance of doubt, and with due respect to the judge, I would emphasise that nothing I say must be regarded as an endorsement of his reasoning on this aspect.

VI. The interpretation of section 64(3B)

My Lords, I acknowledge at once that reasonable minds may differ as to the correct interpretation of a subsection which has no parallel in PACE or any other statute. Nevertheless, there do seem to be secure footholds which may lead to a tolerably clear answer. It is not along the route adopted by the prosecution of asking whether the relevant provision is mandatory or directory. In London and Clydeside Estates Ltd. v. Aberdeen District Council [1980] 1 WLR 182, and 188-190, Lord Hailsham of St Marylebone L.C. considered this dichotomy and warned against the approach "of fitting a particular case into one or other of mutually exclusive and starkly contrasted compartments." In R. v. Immigration Appeal Tribunal, ex parte Jeyeanthan [1999] 3 All ER 231, at 237A-B, Lord Woolf, M.R. now Lord Chief Justice, echoed this warning and held that it is "much more important to focus on the consequences of the non-compliance." This is how I will approach the matter.

It is, of course, clear that after the acquittal of the defendant the sample should have been destroyed. In imperative terms section 64(1) provides that it "must" be destroyed. The existence of the duty to destroy the sample and its breach is merely the starting point. It does not provide the answer to the precise point before the House. The question before us relates to the consequences of the breach of the duty to destroy a sample which should have been destroyed by reason of the provisions of section 64(1). Subsection (3B) is in two parts. Subsection (3B)(a) unambiguously spells out of the legal consequences of a breach of the obligation to destroy a sample: it may not be used in evidence against the person entitled to its destruction. So far the provision is perfectly clear.

The problem arises in regard to the second part of subsection (3B), which provides that samples which are required to be destroyed "shall not be used . . . (b) for the purposes of any investigation." The difference between parts (a) and (b) is striking. Part (a) legislates for the inadmissibility in evidence against the person concerned of the sample that should have been destroyed. By contrast part (b) contains no language to the effect that evidence obtained as a result of the prohibited investigation shall be inadmissible. It does not make provision for the consequences of a breach of the prohibition on investigation. This does not mean that this particular prohibition is toothless. On the contrary, it must be read with section 78(1) of PACE. It provides as follows:

In other words, there is in the very same statute a discretionary power in the trial judge, in the face of a breach of part (b) of subsection (3B), to exclude the evidence if it would be unfair to admit it.

Counsel for the respondent submitted that parts (a) and (b) of subsection (3B) must stand together. In other words, because (a) provides for the inadmissibility of evidence, (b) must have a like meaning. That is how the Court of Appeal also reasoned. But, with due respect, this is too simplistic. It does not address the critical difference that part (a) expressly provides for the consequences of a breach but that part (b) does not. It also does not meet the point that no verbal manipulation of (b) is required if it is simply read together with section 78.

Counsel for the respondent, like the Court of Appeal, thought that certain paragraphs of the report of the Royal Commission supported the construction that subsection (3B)(b) creates an absolute bar to the admissibility of the fruits of a prohibited investigation. If it had done so, it could not have prevailed over the plain language of the statute. But the report yields no such support. It does record in emphatic language the recommendation that after an acquittal a sample must be destroyed. But the report does not address the precise point of statutory construction before the House.

Counsel for the respondent was further compelled to concede that the construction adopted by the Court of Appeal leads to absurd consequences. Counsel for the Attorney-General gave the following illustration. The police receive information from a forensic laboratory that X appears to have been responsible for a number of serial murders. The source of the information is derived from a sample which ought to have been destroyed pursuant to section 64(1) of PACE. The police can do nothing until a further crime is committed. Even a consequential confession by X or discovery of the murder weapon in the house of X could not be used. But one does not have to resort to hypothetical examples: on the interpretation of the judge and the Court of Appeal a case involving evidence of a very serious rape could never reach the jury and in Weir a conviction for a brutal murder was quashed on the ground that the DNA evidence should not have been placed before the jury. It must be borne in mind that respect for the privacy of defendants is not the only value at stake. The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public. In my view the austere interpretation which the Court of Appeal adopted is not only in conflict with the plain words of the statute but also produces results which are contrary to good sense. A consideration of the public interest reinforces the interpretation which I have adopted.

VII. Implication

Somewhat reluctantly counsel for the respondent sought in the alternative to support the conclusion of the Court of Appeal on the basis of implying words in subsection (3B). The suggested implication involves, as my noble and learned friend Lord Cooke of Thorndon elicited, the addition at the end of part (b) of the words "nor shall evidence of the results of any prohibited investigation be admissible." The difficulty in this approach is obvious. If one reads section 64(3B)(b) together with section 78 the statute is entirely workable without any implication. Moreover, the implication would result in a meaning which would be productive of absurd results which are contrary to the public interest. The suggested implication is unnecessary and unwarranted.

VIII. The Human Rights Act 1998

On the supposition that on ordinary principles of construction section 64(3B)(b) does not provide that the evidence obtained as a result prohibited investigation is always inadmissible, counsel for the respondent argued that the incorporation of the European Convention of Human Rights by the Human Rights Act 1998 now compels the interpretation for which she contends. Counsel relied in the first place on article 8 of the Convention. Article 8 reads as follows:

Counsel submitted that, because a sample must be destroyed after an acquittal, it cannot ever be "in accordance with the law" to admit in evidence the results of a prohibited investigation. The question whether it meets this requirement is the very issue of interpretation which the House has to decide. If the construction I have adopted is correct "the interference" is "in accordance with law," the critical point being that admissibility is governed by judicial discretion under section 78. And "the interference," so qualified, is plainly necessary in a democratic society to ensure the investigation and prosecution of serious crime. There is plainly no breach of article 8.

In the alternative, counsel in her printed case relied on article 6. In oral argument she expressly abandoned this argument. That was not surprising. Article 6 provides inter alia that in the determination of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Under the general law the trial judge has adequate powers to ensure fairness: (1) he has jurisdiction to stay the proceedings as an abuse of the process and (2) he has a discretion to exclude evidence under section 78 if it would be unfair to admit the evidence "having regard to all the circumstances, including the circumstances in which the evidence was obtained." If trial is allowed to proceed, and the evidence is not excluded, the accused will have a full opportunity to contest the reliability and accuracy of the DNA evidence. In any event, the question of admissibility is a matter for regulation under national law. There is no principle of Convention law that unlawfully obtained evidence is not admissible: Schenk v. Switzerland (1988) 13 E.H.R.R. 242, at para. 46, pp. 265-266; R. v. Khan (Sultan) [1997] AC 558. I would therefore reject the argument under this heading.

It follows that the law as I have stated it is fully compatible with the relevant Convention rights. The interpretative obligation under section 3 of the Act of 1998 is not in play.

Conclusion

I would therefore rule that the Court of Appeal's rulings in the reference, as well as in the appeal of Weir, were wrong and accede in substance to the argument presented on behalf of the Attorney-General. On the other hand, the question formulated by the Attorney-General is too compressed and contains no reference to section 78. It is, however, unnecessary to redraft it since the correct position is clearly stated in the opinions of the House.

LORD COOKE OF THORNDON

My Lords,

Having had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn, I am in complete agreement with it. In particular I wish to be associated with his invocation of the approach of Lord Hailsham of St. Marylebone L.C. in London and Clydeside Estates Ltd. v. Aberdeen D.C. [1980] 1 WLR 182, 188-190, which had the agreement of Lord Wilberforce in that case and has been echoed by Lord Woolf in R. v. Immigration Appeal Tribunal, ex parte Jeyeanthan [1999] 3 All ER 231, 236-239.

In the present case I think that the Court of Appeal fell into the trap (and they were in good company in doing so) of treating the issues to be resolved according to whether section 64(3B)(b) of the Police and Criminal Evidence Act 1984 should be classified as mandatory or directory. That it is in ordinary language mandatory there can be no doubt. In clear terms it provides that certain categories of samples required to be destroyed shall not be used for the purposes of any investigation of an offence. Use in breach of this prohibition is plainly unlawful. But paragraph (b), in contrast with paragraph (a), does not go on to provide that, in the event of such unlawful use, the results of the investigation shall not be admissible in evidence against the person who was entitled to the destruction of the sample. Nor does it provide that an unlawful investigation shall be null and void or deemed never to have occurred - provisions which would indeed read rather oddly in relation to an investigation. So far as the law of evidence is concerned, any remedy for the unlawfulness is to be found in section 78(1) of the same Act. It is to be noted that the terms of section 78(1) show that the fairness of the proceedings is a wide concept and extends to the circumstances in which the evidence was obtained.

It may be worth adding that just as in European Community law, as Lord Steyn has pointed out, there is no principle that unlawfully obtained evidence is not admissible, so there is no such general principle in Commonwealth countries. Approaches differ somewhat among the jurisdictions. Thus in Canada evidence obtained in breach of the Charter will be excluded if its admission is likely to bring the administration of justice into disrepute (R v. Collins [1987] 1 S.C.R. 265) ; in Australia the leading cases recognise a judicial discretion in which the competing demands of the public interest in the prevention and punishment of crime, on the one hand, and fairness to the accused, on the other, have to be weighed (Bunning v. Cross (1978) 141 C.L.R. 54; Ridgeway v. The Queen (1995) 184 C.L.R. 19); and in New Zealand, while it has long been held that the judicial discretion to exclude unfairly obtained evidence is wider than that recognised in England at common law in R v Sang [1980] AC 402 and Kuruma v. The Queen [1955] AC 197, a line of cases has treated evidence obtained in breach of the semi-constitutional provisions of the Bill of Rights as prima facie inadmissible but subject to exceptions created by the overriding demands of justice. (Howden v. Ministry of Transport [1987] 2 NZLR 747; R v. Grayson and Taylor [1997] 1 NZLR 399). The cases in the various jurisdictions on this pervasive and perennial problem are legion. I have cited only a handful. The point of present significance is simply that, apart from express statutory provisions, nowhere in the Commonwealth does there appear to be any remorseless principle of the exclusion of evidence unlawfully obtained. In the instant case there is in paragraph (b) no such express statutory provision; and in my view, it would be astonishing if Parliament had intended the evidence eventually tendered to have been ruled out.

Accordingly I agree that the reference should be disposed of as proposed by Lord Steyn.

LORD CLYDE

My Lords,

I have had the opportunity of reading in draft the speech which has been prepared by my noble and learned friend Lord Steyn and I agree with the conclusion which he has reached for the reasons which he has given.

I agree in particular that this is not a case in which it is useful to adopt any technical distinction between mandatory and directory constructions. Indeed the present is a case where such an approach can be misleading and dangerous. The critical subsection, section 64(3B) of the Police and Evidence Act 1984, specifies two situations in which information derived from the sample "shall not be used". The same words govern the two situations set out as (a) and (b) respectively. It is then temptingly attractive to concentrate upon the word "shall" and by giving it a single classification, either mandatory or directory, determine the effect of the two provisions which follow, so far as the admission of evidence is concerned, in a way which must be the same in respect of each of the two situations. But if that approach is rejected one is free to ask in respect of each separately what the effect of the particular obligation is to be. This is not to hold that the word "shall" has at the same time two different meanings. It has the constant meaning of imposing obligations. But the effect of each particular obligation, particularly where the possibility of a failure in compliance arises, may be different. I agree that while part (a) is complete in itself so far as a possible breach is concerned, a breach of part (b) is to be regulated by reference to section 78.

LORD HUTTON

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn and I gratefully adopt his account of the statutory background and the events and proceedings which have given rise to the present reference to this House.

Section 64(3B) of the Police and Criminal Evidence Act 1984 (PACE) provides:

The Crown did not seek to adduce in evidence the sample taken from the defendant on 4th January 1998 when he was charged with burglary and which should have been destroyed as soon as was practicable after his acquittal on that charge pursuant to section 64(1) of PACE which provides:

But the sample taken on 4th January 1998 was used to make a match on 6th October 1998 between the DNA profile obtained from that sample and the DNA profile obtained from the swabs taken from the victim of the offences of rape, burglary and assault committed on 23rd January 1997. This investigation led to the arrest of the defendant on 15th October 1998 in respect of those offences and on 15th October 1998 a sample of plucked head hair was taken from him, which was the sample which the Crown wished to use in evidence against him. Therefore the sample taken on 4th January 1998 was used, in breach of the prohibition contained in section 64(3B)(b), for the purposes of an investigation into the offences of rape, burglary and assault committed on 23rd January 1997.

The principal submission advanced by Mrs. Poulet Q.C. on behalf of the defendant before the Crown Court Judge and the Court of Appeal was that section 64(3B)(b) by its express words prohibited the Crown using in evidence against the defendant the sample taken on 15th October 1998, and in support of that submission Mrs. Poulet further submitted that sub clause (b) of section 64(3B) cannot be detached from sub clause (a) of that sub section but must be read together with it, so that as sub clause (a) prohibited the use of evidence derived from the sample which should have been destroyed, sub clause (b) must be read as prohibiting the use of evidence resulting from an investigation arising from that sample. This submission was accepted by the Court of Appeal, Swinton Thomas L.J. stating [2000] 3 WLR 1164, 1182:

My Lords I consider, with respect, that the Court of Appeal erred in accepting this submission. In my opinion section 64(3B)(b) prohibits the sample liable to destruction from being used for the purposes of any investigation of the offences committed on 23rd January 1997, but it does not prohibit evidence resulting from such an investigation from being used in criminal proceedings in respect of those offences.

The wording of sub clause (a) by its express words does prohibit the use in evidence of information derived from a sample which should have been destroyed but, in contrast, sub clause (b) is silent as to the admissibility of evidence resulting from an investigation which it prohibits. Therefore, in my opinion, the issue which arises in a case such as the present one is whether evidence which has been unlawfully obtained, in that it arises from a line of investigation which has been prohibited, is inadmissible as a matter of law (as opposed to being subject to exclusion in exercise of the trial judge's discretion conferred on him by section 78 of PACE). On that issue the law is clear.

In Kuruma v. The Queen [1955] AC 197, 203 Lord Goddard stated:

And in Fox v. Chief Constable of Gwent [1986] A.C. 281, 292 Lord Fraser of Tullybelton stated:

Reg. v. Sang

Counsel for the defendant in advancing her submission based on the express words of section 64(3B)(b) relied on passages in the Report of the Royal Commission on Criminal Justice presented to Parliament in July 1993, but she also relied on those passages in support of the alternative submission which she advanced to this House that the words of sub clause (b) by necessary implication prohibited the admission of the evidence relating to the sample taken on 15th October 1998. It is clear that the Royal Commission intended to extend the scope of DNA testing but counsel submitted that the Royal Commission also intended that where a person had been acquitted, no evidence should be adduced against him resulting from an investigation arising from a sample taken from him in the course of investigating an offence of which he was subsequently acquitted, and counsel relied on the following passages in paragraphs 34, 35 and 36 of the Report:

It was submitted that the amendments to PACE, including sub section (3B) of section 64, followed closely the recommendations of the Royal Commission and that therefore, if the express words of sub section (3B) did not do so, it was a necessary implication that Parliament intended that evidence resulting from the prohibited investigation should not be admitted in evidence. My Lords, I am unable to accept that submission, because the Royal Commission did not consider the issue whether evidence resulting from a prohibited investigation should be automatically rendered inadmissible. Bearing in mind that the principle stated in Kuruma is a well established one, I would be slow to hold that in enacting the provisions of section 64(3B) Parliament intended to exclude automatically evidence resulting from a prohibited investigation, irrespective of the circumstances in which the evidence was obtained, and irrespective of its weight and cogency and the gravity of the crime to which it related. Accordingly I am of the opinion that the words of section 64(3B) do not prohibit the admissibility of the evidence which the Crown wished to adduce in this case, and therefore the issue whether the prohibition contained in sub clause (b) is mandatory or directory does not arise.

I am in respectful agreement, for the reasons which he gives, with the opinion of my noble and learned friend Lord Steyn that the defendant derives no support for his case from Article 6 or Article 8 of the European Convention.

In conclusion I would observe that before the Crown Court judge two questions arose. The first question was whether the evidence relating to the sample taken from the defendant on 15th October 1998 was admissible in law. If it was, the second question was whether the judge should exercise his discretion under section 78 of PACE to exclude that evidence. The Crown Court judge ruled that the evidence was inadmissible but, if he should be wrong in his view that the evidence was inadmissible, he further ruled that he would exclude the evidence in the exercise of his discretion under section 78. The question formulated by the Attorney General does not distinguish between these two issues. The judgments of the House are related to the first issue and make it clear that the evidence was admissible.

Counsel did not ask the House to consider the correctness of the approach taken by the Crown Court judge to the exercise of his discretion under section 78. I therefore wish to make it clear that in not expressing an opinion on the judge's ruling on the exercise of his discretion I am not to be taken as endorsing his reasoning on that point. In considering the interpretation of section 64(3B) my noble and learned friend Lord Steyn has stated in his speech that respect for the privacy of defendants is not the only value at stake, that the purpose of the criminal law is to protect citizens from harm and that there must be fairness to all, to the victim and to the public as well as to the defendant. I wish to express my concurrence with these observations, but in a case of this nature where very grave crimes were committed against an elderly woman in her own home, I consider that the observations of my noble and learned friend are also relevant to the exercise of the discretion under section 78. In the exercise of that discretion I consider that the interests of the victim and the public must be considered as well as the interests of the defendant. As Barwick C.J. stated in his judgment in the High Court of Australia in The Queen v. Ireland [1971-72] 126 C.L.R. 321, 335, with which all the members of the Court agreed:

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

I agree that this appeal should be allowed.

Upon the question of the construction of s.64(3B), I have little to add to what all your Lordships have already said and with which I agree. The unfortunate drafting of the various amendments which have been made to sections 61 to 65 have produced a maze of provisions with complex numbering which can only have the effect of making it more likely that differences of understanding will arise. The draftsmen have appreciated that different provisions are required in relation to the use and disposal of fingerprints and samples. In the case of samples it is the information derived from the scientific testing and analysis of the samples which is significant rather than the production the sample itself. Indeed it may often be the case that the sample itself will have been destroyed by the scientific processes. Two consequences follow from this. Legislative provisions which depend upon a right to have the sample destroyed may not be fully coherent (s.64(1),(2) and(3)). The sample may already have been destroyed. Secondly, the information which has been derived from testing or analysing the sample may be partly contained in records and partly in peoples' minds. A police officer may have read a report which states that a certain match has been made. Is the statute requiring him artificially to "forget" what he knows? Maybe he will remember it for the purpose of not wasting time on what he knows will be a fruitless line of investigation. Maybe he will remember it for the purpose of excluding from a criminal trial or conviction a person whom he thereby knows is not guilty.

Subsection (3B), and the other similarly drafted provisions require that there shall be two consequences of the requirement to destroy a sample. The first, (a), is a requirement that the information shall not be used in evidence against the person who was entitled to have the sample destroyed. This is a requirement which makes the information inadmissible in evidence but only as against that person. It is thus limited in its scope but does not, within its scope, admit of exceptions: the evidence is inadmissible and there is no discretion to admit it as against that person. (If there is more than one defendant at the criminal trial, the familiar problems associated with evidence that is admissible against one defendant but not against another would have to be addressed.)

The second, (b), is different. It prohibits the use of the information in any investigation of an offence. It is not concerned with the admissibility of evidence at a trial. The judge and the Court of Appeal were in error in treating it as an implication of (a) that any evidence obtained in the course of an investigation which had involved some breach of the requirement of (b) must, as a matter of the statutory construction of s.64, be inadmissible. Like your Lordships, I consider that the implication is the reverse. But, in any event, when one takes into account that the statute also contains a provision covering the discretionary exclusion of evidence - s.78 - the right construction of s.64 becomes clear. If any question of the exclusion of evidence on the ground that the circumstances in which it has been obtained would make it unfair to admit it, then the trial judge should exercise his discretion under s.78 to exclude it. This is the approach which has most recently been endorsed by your Lordships' House in R v Khan [1997] AC 558.

As your Lordships have pointed out, this appeal has been concerned only with the construction of s.64 and whether the relevant later evidence was made inadmissible by that section. The appeal has not concerned, and your Lordships have not heard argument about, the alternative decision of the judge to exclude the evidence under s.78. It is obvious that that decision was based upon reasoning which derived from his mistaken construction of s.64. In relation to s78, it is the duty of the judge to have regard to all the circumstances including the circumstances in which the evidence was obtained and then apply the statutory criterion "whether the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it". The criterion is the effect which the admission of the evidence would have on the fairness of the proceedings. Each case must depend upon its own facts and circumstances. The two cases which came before the Court of Appeal dramatically illustrate the public importance of making the correct assessment under s.78. Subject to this, I, like your Lordships express no opinion about the ruling of the judge at the trial.