By Kirsty Brimelow QC
R v S
 EWCA 390 (Crim)
Challenging the use of DNA in sexual offences
The Appellant (78 years old) was convicted of:
- 5 counts of sexual intercourse with a girl under 13 (s.5 Sexual Offences Act 1956). The complainants were the 7 year old daughter of his girlfriend [W] and his 6 – 8 year old daughter [Z]
- Indecent assault (s.14(1) Sexual Offences Act 1956 against Z);
- Rape of another daughter when she was 14 [V] (s.1(1) Sexual Offences Act 1956).
All offences were historic and occurred between 22 and 37 years previously.
He was sentenced to a total of 21 years’ imprisonment comprising a custodial element of 20 years and an extended licence of one year.
Bad character evidence was admitted which related to a prosecution of the appellant in 1994 sexually assaulting the 9 year old daughter of a girlfriend (U) in August 1983. The prosecution had offered no evidence in court and a not guilty verdict had been entered. At the time of this trial, a significant witness – the mother of U had died. The Judge allowed her statements in 1993 and 1994 to be read.
Z went to the police in 2015. The police subsequently traced W and U who also made complaints. However, V did not make a statement or give evidence. The prosecution indicated that it did not rely upon her as a witness of truth. The prosecution relied upon DNA evidence, obtained in 2007 by police by seizing toothbrushes of V’s child (C 1) which showed C1 to be the appellant’s daughter.
V had given birth to the C1 when she was 15 years’ old and she and Z had been taken into care. V’s account when she was interviewed by police in 2007 was that she had inseminated herself with sperm of her father which she had collected from a condom in the family home. She said that she did this to get pregnant so that she would get her own accommodation. She refused to cooperate with a prosecution in 2007 and criminal investigation ceased.
The DNA was kept against V’s wishes. She specifically requested that it be destroyed. The prosecution’s case relied entirely on the inference that a 14 year old would not willingly have sex with her father and so the only inference that the jury could reasonably draw was that he had raped her.
The defence submitted that it was not a safe inference and that there was an equally compelling inference supporting an offence of incest. In addition, it was argued that the Crown could not rely on either inference when the last account from V was that she had self-inseminated and no offence had been committed against her.
Leave was granted to appeal conviction on all grounds – which were all related to legal rulings of the trial judge. It was submitted that there was an abuse of process and breach of Article 6 (1) ECHR due to delay concerning all complainants, abuse of process in the use of unlawfully retained DNA (it was admitted to be unlawfully retained by the Crown), breach of section 63T of PACE 1983, breach of Article 8 concerning the retention of the DNA of a non-suspect and wrongful refusal to exclude the DNA pursuant to section 78 PACE and wrongful admission of both bad character evidence pursuant to 101(1) (d) CJA 2003 and hearsay evidence, pursuant to section 116(1) (a) CJA 2003.
The Court of Appeal dismissed all grounds. The application that there were questions of public importance to be considered by the UKSC, the substance of which is referred to in the commentary below was refused by the Court of Appeal and pronounced in Court on the 18th of June 2019. The identified questions of public importance were:
1. Where a DNA profile is unlawfully retained from non-suspect A in order to investigate suspect B, is a Judge prohibited from allowing the profile to be used as evidence against suspect B in subsequent criminal proceedings? Does section 63T of PACE 1984 (as amended/inserted by the Protection of Freedoms Act 2012) apply equally to non-defendants?
2. Where police obtain a DNA profile from a child in the course of a criminal investigation is it in violation of Article 8 ECHR and the Convention on the Rights of a Child to retain the DNA without written consent from the person or institution with parental responsibility?
3. In cases involving potential child victims of rape and sexual assault or incest who are aged from 13 years’ old, is lack of consent so central to the offence of rape (and sexual assault) that it cannot be proved by DNA and the age of the alleged victim being under 16 without evidence of lack of consent from the alleged victim?
The style of this judgment was dismissal of arguments rather than engaging with the reasoning. Undoubtedly, the Court of Appeal were not sympathetic to the underlying allegations. However, the Court of Appeal did not address the elements of rape and how it was safe inference for a jury to convict of the offence of rape without evidence from a complainant; why the offence of rape was proven over – at its highest- incest. It did not address how the prosecution could proceed advocating the inference when it had material that the latest account from the NS had been that she had self-inseminated.
Concerning the DNA, the prosecution and Court of Appeal relied heavily upon the House of Lords authority Attorney General Reference (No. 3 of 1999)  2 AC 91 . But the AG’s Reference focused upon DNA from a suspect and its use in investigation, not as the basis of evidence in a trial. In that case a new sample formed the basis of the evidence in the trial – not the illegally retained DNA.
It did not address section 63 of PACE 1984 (as amended / inserted by the Protection of Freedoms Act 2012) and in particular section 63T which states that any material to which 63D and 63R pertains must not be used in evidence against the person to whom the material relates or for the purposes of the investigation of any offence.
No consideration was given to the Court of Appeal as to whether the same mandatory criteria apply to the evidential use of an unlawfully retained DNA profile from a non-defendant against a defendant in trial proceedings.
In addition, the Court of Appeal did not properly consider the importance of DNA samples having been taken when the person was a child and then used as evidence in criminal proceedings against another when the person was an adult (and withheld consent). The Supreme Court increasingly highlights the privacy of a child or young person as an important interest, protected under Article 16 of the UN Convention on the Rights of the Child and Article 8 of the European Convention on Human Rights. The Christian Institute and Others v The Lord Advocate  UKSC 51, 28 July 201 is the last Supreme Court case considering similar issues. It concerns data sharing rather than use of unlawfully retained DNA in criminal proceedings. The Court of Appeal considered only that NS’s child was now an adult and knew the identity of her father and concluded that the human rights law arguments fell away.
Finally, the Court of Appeal did not fully grasp the importance to examine the obligations upon local authorities with parental responsibility or persons with parental responsibility when granting permission for police retention of a child’s DNA. It did not apply the law governing the giving of consent pre and post the Protection of Freedoms Act 2012. It misunderstood the comparison that the appellant made to Family Court proceedings, namely that sections 20 and 21 of the Family Law Reform Act 1969 apply and consent is required or a direction of the court is necessary to obtain material for paternity testing.
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