Criminal

Evidence - DNA sample and profile - acquittal or discontinuance in earlier prosecution - use in subsequent prosecutionAttorney-General's Reference (No 3 of 1999); R v Weir: CA (Swinton Thomas LJ, Butterfield and Rafferty JJ): 26 May 2000

At B's trial on charges of rape and other offences, the Crown had sought to rely on DNA evidence that had been obtained from a sample relating to an earlier investigation, which had remained on the DNA database despite B's acquittal.The judge ruled the evidence inadmissible under s.64(3B) of the Police and Criminal Evidence Act 1984.

The Attorney-General referred a question under s.36 of the Criminal Justice Act 1972 as to whether the judge had a discretion in such circumstances to admit the evidence.In a prosecution of W on charges of murder and other offences the judge admitted DNA evidence involving a fresh sample (although that sample depended in part upon a profile which should have been destroyed following discontinuance of an earlier separate prosecution) despite an application under s.78 of the 1984 Act without ruling on the s.64(3B) issue.

W was convicted and appealed.David Perry (instructed by the CPS Central Case Work) for the Attorney-General; Rebecca Poulet QC (instructed by Payton & Partners) for B; Sir Derek Spencer QC (instructed by Traymans) for Weir; Richard Horwell (instructed by the CPS, London), for the Crown.Held, on the reference and allowing W's appeal, that s.64(3B) was unambiguous and mandatory in its effect; that where a sample of DNA was lawfully taken from a defendant in respect of offence A (of which offence he was subsequently acquitted), and information derived from the sample suggested the defendant was guilty of offence B, a judge did not have a discretion to permit a prosecution to proceed against the defendant for offence B, as was clear from s.64(3B) of the Police and Criminal Evidence Act 1984; and that where a sample (which included the profile) was used for the purposes of an investigation, then all evidence resulting from that investigation was to be excluded in a subsequent prosecution.