CRIMINALEvidence - statutory prohibition on use of information derived from wrongfully retained DNA sample - no mandatory exclusion of evidence obtained in breach of prohibitionAttorney-General's Reference (No 3 of 1999): HL (Lord Steyn, Lord Cooke of Thorndon, Lord Clyde, Lord Hutton and Lord Hobhouse of Woodborough): 14 December 2000A DNA profile obtained from a saliva sample taken from B after he was charged with burglary was wrongfully retained following his acquittal, contrary to section 64(1) of the Police and Criminal Evidence Act 1984.Subsequently, a DNA profile obtained from swabs taken from a rape victim was found to match the retained profile.

B was arrested and a fresh sample taken which also matched that obtained from the swabs.He was charged with rape but the judge ruled that evidence of the link between B's DNA profile obtained from the second sample and the profile obtained from the swabs was inadmissible by reason of section 64(3B)(b) of the 1984 Act, which prohibited the use of information derived from a sample required to have been destroyed under section 64(1) for the purposes of any investigation of an offence.The Crown offered no further evidence and B was acquitted.

The Attorney-General referred a question for the opinion of the Court of Appeal as to whether in such circumstances a judge had a discretion to admit the relevant evidence.

The Court of Appeal [2000] Gazette, 6 July 37; [2000] 3 WLR 1164 answered the question in the negative but made a further reference to the House of Lords requested by the Attorney-General.David Perry and Duncan Penny (instructed by Crown Prosecution Service, Central Casework Directorate) for the Attorney-General.

Rebecca Poulet QC and Roxanne Morrell (instructed by Payton & Partners) for B.Held, that section 64(3B)(b), in prohibiting the use of an unlawfully retained sample for the purposes of any investigation, did not amount to a mandatory exclusion of evidence obtained as a result of a breach of that prohibition but, read with section 78 of the 1984 Act, left the question of its admissibility to the discretion of the trial judge; and that, accordingly, the evidence which had been obtained from the second sample, although unlawfully obtained by reason of the wrongful retention of original sample, ought not to have been ruled inadmissible under section 64(3B)(b).

(WLR)