No breach of privacy to request DNA sample from ex con

24 September 2013 by

DNA code analysisR (on the application of R) v Chief Constable  [2013] EWHC 2864 (Admin) 24 September 2013 – read judgment

The High Court has ruled that it is not a breach of the right to private life to request DNA samples from 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.

Background Facts

The claimant was asked, by reason of his previous convictions, to provide a DNA sample under the Police and Criminal Evidence Act to enable the police compare the his DNA profile with those held by the police in connection with unsolved crime.  He refused to give the sample when it was sought initially, so he was sent a letter requiring him to attend at a police station to provide the sample on pain of arrest. He applied for judicial review of this requirement, arguing that it was an unlawful incursion on his right to privacy under Article 8.

In the light of the fact that the claimant’s previous convictions had been for manslaughter and kidnapping, the police had identified him as falling within the criteria for a nationwide operation to ensure that those convicted of homicides and/or sexual offences have a confirmed DNA profile held on the National DNA Database.  The sample requested from the claimant was destined for comparison with the 158,191 crime scene profiles held in the NDNAD. The issue therefore for the court in this case was  whether the collection of the claimant’s sample for the purpose of speculative checking against other samples and the retention of his DNA profile once produced was a proportionate exercise of the statutory power under PACE.

The Court’s decision

It was the defendant’s case that the fact that the claimant’s profile was not already held on the NDNAD was simply an accident of timing. After 5 April 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.

In S and Marper v United Kingdom (2009) the Strasbourg Court found that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences was a disproportionate interference with Article 8.  PACE has been subsequently adjusted to take account of this judgment. But that case did not deal with the taking of a sample without the individual’s consent  when that individual had in the past been convicted of serious offences. In S, it was the “indiscriminate reach of the statutory power” that rendered the retention objectionable, in particular, “its tendency to stigmatise unconvicted persons who had come under suspicion”.

Pitchford LJ, giving the main judgment,  accepted the defendant’s contention that the statistical probability that any one of the samples gathered would produce a match with the crime scene database was not determinative of the issue of proportionality:

In my judgment, acceptance of propensity to commit offences as a measure (albeit an imprecise measure) of probability in the detection and proof of further offences is now so widespread that the defendant was fully justified in placing weight upon it. [40]

In the light of this, and their finding that “significant weight” was to be attached to the legitimate interest in the detection of crime, the Court dismissed the claim that the claimant’s Article 8 rights had been inadequately protected.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:


  1. Anyoldiron says:

    It certainly is NOT a breach of privacy to request DNA sample from ex con. Absolutely spot on. It may well be a breach of privacy however, if a sample is taken without the person’s consent.

  2. 2speeddriver says:

    As predicted by Amnesty International and almost everyone else the “fishing excercise” begins

  3. pawisuPaWiSu says:

    The thing is, the judge was subject to a barrage of publicity of the dire consequences if he found in the man’s favour – including a claim, I understand from Radio 4, that 6,000 cases might have to be abandoned. Given all this pressure it could be argued that his judgement was not unbiased. As laws didn’t use to be back-dated and people are subject to the law as it was when they committed the crime I would argue that they should whistle for his DNA and the police should concentrate on cutting current crime rather than trawling back 20, 30, 40 years.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.


Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza genetics Germany Google Grenfell Health HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
%d bloggers like this: