Ruling on 'old' DNA results frees rape case men

Two men accused of rape and murder could not be convicted on "compelling" DNA evidence because their original samples should have been destroyed by police, three Court of Appeal judges ruled yesterday.

Two men accused of rape and murder could not be convicted on "compelling" DNA evidence because their original samples should have been destroyed by police, three Court of Appeal judges ruled yesterday.

In both cases, the DNA samples which linked the men to the crimes were taken by police investigating earlier offences for which the men were cleared.

Under the terms of the Police and Criminal Evidence Act (PACE), DNA samples must be destroyed if the donor is acquitted, and cannot be used as evidence in future, unrelated crimes.

The judges ruled that Parliament never intended a court to exercise discretion over such DNA samples, "which results in the exclusion in these cases of that powerful evidence".

Lord Justice Swinton Thomas, sitting with Mr Justice Butterfield and Mrs Justice Rafferty, went on: "Whether, in the light of these two cases and the repercussions in relation to other cases, the authorities or Parliament wish to revisit Section 64 of PACE is not a matter for this court, but there can be no doubt as to the seriousness of the consequences."

The judges had heard the two cases together but delivered separate judgments.

In the first, Michael Weir appealed against his conviction for murder, burglary and assault, for which he was sentenced to life imprisonment at the Old Bailey in July 1999. He was linked to the murder of the owner of a flat in north London in January 1998 by a DNA sample taken after he was charged with drugs-related offences in August 1997. But the drug charges were discontinued and Weir was discharged.

The judges said the Crown accepted that under the terms of PACE, the DNA profile should not have been accessible on the database after the charges were dropped.

In the second case, a man had been accused of raping a 66-year-old woman in her home in London in January 1997. A DNA profile from the victim was put on the national DNA database and when the man was arrested for an unrelated burglary offence in January 1998, a DNA profile was obtained from a saliva sample.

But in August 1998, the man was acquitted of the burglary offence, and, the judge said, the Attorney General had conceded that the sample taken from him should have been destroyed.