R (on the application of R) v A Chief Constable  EWHC 2864 (Admin) (24 September 2013)
The UK High Court of Justice held that the power to demand a non-intimate sample from an individual previously convicted of serious offences without that individual’s consent was a proportionate interference with the right of respect for that person’s private life.
The claimant’s first conviction was when he was 17 years old and his last when he was aged 41 years. He was convicted of 25 offences over that time, including convictions for manslaughter and kidnapping. Thirteen years after his last conviction, the claimant was visited by a police officer and handed a letter outlining a request to collect a DNA sample under the Police and Criminal Evidence Act 1984 (UK) in order to compare the claimant’s DNA profile with those held by the police in connection with unsolved crimes.
The letter informed the claimant that if he did not attend a police station to provide the sample, he would be liable to arrest. He refused to provide the sample and applied for judicial review of the requirement to do so. A detective inspector (DI Ashman) then gave his authorisation for the taking of the sample, and again directed the claimant to attend a police station. The claimant sought to quash both the requirement made in the initial letter, and the later requirement made by the detective inspector, on the grounds that they interfered with his right to respect for private life in Article 8(1) of the European Convention of Human Rights, and that the interference was not justified under Article 8(2) because it was not proportionate. Article 8(2) relevantly provides that there should be no interference with the right in Article 8(1) except as is necessary in a democratic society for the prevention of disorder or crime.
That the claimant’s profile was not already held on the DNA database was a product of timing. After 2004, any person convicted of any one of the offences committed by the claimant would expect his sample to be taken and his DNA profile to be retained indefinitely.
Lord Justice Pitchford and Mr Justice Hickinbottom found that the requirement made in the initial letter given to the claimant that he attend a police station so that a sample could be taken from him was unlawful, because it was made without prior authorisation by a police officer of the rank of inspector or above. This was contrary to the legislation.
However, the court then found that while D.I. Ashman’s requirement that the claimant give a sample was an interference with Article 8(1), it was a lawful and proportionate interference. The claimant’s attack on the authorisation was based largely upon the statistical improbability that profiling would reveal any information of value to the police. The claimant argued that the absence of suspicion, based upon evidence, that he had committed any other offence rendered the requirement for a sample purely speculative, and for that reason, a disproportionate interference with his private life. The court rejected this argument, and found that the statistical probability of a match was not determinative of the issue of proportionality.
Significant weight was attached to the legitimate interest in the detection of crime. While there was evidence before the police that there had been a change in the claimant’s lifestyle at some stage after his last conviction for a serious offence, the court accepted that the police were justified in placing weight upon the claimant’s propensity to commit offences, and that the absence of specific grounds for suspicion did not render the requirement for a sample disproportionate.
Furthermore, the powers under the legislation were deliberately confined to particular categories of persons –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 attached to the claimant by reason only of the requirement to provide a non-intimate sample, as his convictions for serious offences were matters of public record, the process of collection could have been carried out in the privacy of his own home if he had consented, and, in the event that consent was withheld and a sample forcibly taken, there was no public announcement of the fact that a requirement had been made.
In 2002, Victoria became the first state in Australia to require samples from offenders of serious offences who were outside of the prison system. The Crimes (DNA Database) Act 2002 (Vic) amends the Crimes Act 1958 (Vic) so that it operates largely in the same way as the UK legislation mentioned above. Critics have noted that the requirement to provide a sample effectively imposes a new penalty on offenders after they have served their time.
Daniella Phair is a Law Graduate with King & Wood Mallesons Human Rights Law Group.