High Court rejects ex-prisoner's DNA sample challenge

Lawyers argued that the request by police infringed his human rights

John Aston
Tuesday 24 September 2013 12:13

An ex-prisoner's legal challenge to a police force request for him to provide DNA samples has been rejected by the High Court.

Lawyers for the ex-prisoner, referred to as R, argued that the request infringed his human rights.

But Lord Justice Pitchford and Mr Justice Hickinbottom, sitting in London, dismissed his application for judicial review.

Lord Justice Pitchford said the request was both "lawful and proportionate".

R is now considering whether to appeal against today's ruling.

The test case was triggered by Operation Nutmeg, under which DNA samples have been collected from prisoners whose crimes pre-date routine collection.

The police force at the centre of the case, which also must not be be named for legal reasons, wanted R's sample as part of the push across England and Wales to collect genetic material from people jailed for serious crimes before 1994.

After that date, people convicted of serious crimes had DNA swabs routinely taken to add to the national database.

Peter Neyroud, former head of the National Policing Improvement Agency head, told BBC Radio 4's Today programme: "Collecting this DNA is worthwhile. It helps solve serious, historic cases. Of the 6,000 samples taken so far there are around 100 matches. I'm sure the police will get something worthwhile in around 50 of these cases. We are talking about pretty serious crimes here."

Stephen Cragg QC, who led today's legal challenge, said: "The claimant in this case accepts he committed a serious crime, but not since 1999.

"Now he has been asked to provide a sample he says his human rights have been breached as he has a right to a private life."

Mr Cragg also questioned whether statistics backed up the police case. He said: "If you take DNA from everybody you will solve more crimes.

"But will this improve the detection rate? It remains a very low rate. Often DNA evidence will throw up red herrings."

Lord Justice Pitchford described in his judgment how R was convicted of manslaughter in 1984.

He was told by police last March that he was required to provide a non-intimate DNA sample to assist with the detection of unsolved crime and as a deterrent to further offending.

His DNA profile was wanted for "speculative checking" with the 158,191 crime scene profiles held in the national DNA database.

When his solicitors challenged the request, R was warned that if he did not consent he would be liable to arrest.

He was granted an injunction to prevent any arrest while he launched his High Court bid - heard in Birmingham - for damages for a breach of his human rights and a declaration that the police demand was unlawful.

His lawyers argued the DNA request infringed R's Article 8 right to respect for his private life under the European Convention on Human Rights, and was also unlawful because he had not been given an opportunity to make representations.

The lawyers conceded that the "requirement" of a sample was for the legitimate purpose of the fight against crime, but argued in R's circumstances the "purely speculative" exercise was a disproportionate interference with his private life.

The judge said R had made a witness statement describing how well into the 1990s he was a heavy drinker who frequently went out with friends and acquaintances drinking and getting involved in petty crime.

Some 13 years ago he had turned his life around, gave up drinking and started his own business. His wife was diagnosed with a life-threatening illness some five years ago and he was now her sole carer.

The judge ruled the initial demand for a sample in March was unlawful because it was made without prior authorisation by a police officer of the rank of inspector or above, contrary to the requirements of the 1984 Police and Criminal Evidence Act, as amended by the 2010 Crime and Security Act.

But a detective inspector made a valid requirement in April.

The judge said the European Court of Human Rights had recognised the importance of technological advances in the fight against crime, and the amended powers were deliberately confined to particular categories of persons.

"We are concerned with those who were convicted of serious offences before it became commonplace to take samples for the production of DNA profiles for the investigation of crime.

"No stigma attaches to the claimant in the present case by reason only of the requirement to provide a non-intimate sample.

"His conviction for serious offences are matters of public record. The claimant is but one of 11,000 people who by virtue of their criminal antecedents were liable, depending upon their individual circumstances, to provide samples for the purpose of speculative checking against the crime scene database profiles."

The judge ruled that the detective inspector "was fully justified in concluding that the public interest in the detection of crime outweighed the limited interference with the claimant's private life".

Mr Justice Hickinbottom agreed and said the requirement of a sample was "clearly appropriate and proportionate".