DNA sample taken for criminal purposes may not be used for paternity test – Amy Woolfson

11 February 2015 by

dna-evidenceX & Anor v Z (Children) & Anor [2015] EWCA Civ 34 – read judgment

The Court of Appeal has ruled that it would not be lawful for DNA originally collected by the police to be used by a local authority for the purposes of a paternity test. 

Factual and legal background

X’s wife had been found murdered.  The police took DNA from the crime scene.  Some of the DNA belonged to X’s wife and some was found to be X’s.  X was tried and convicted of his wife’s murder.

X’s wife had young children and they were taken into the care of the local authority.  During the care proceedings X asserted that he was the biological father of the children and said he wanted to have contact with them.  He refused to take a DNA test to prove his alleged paternity.  The local authority asked the police to make the DNA from the crime scene available so that it could be used in a paternity test.  The police, with the support of the Home Secretary, refused on the grounds that they did not believe that it would be lawful to do so.

There are two ways in which the police can lawfully collect and use DNA.  Part V of the Police and Criminal Evidence Act 1985 (as amended) gives the police authority to collect and use samples from a person, and Part II of PACE gives the police authority to collect and use samples from premises.

In S and Marper v UK (2009) 48 EHRR 50the European Court of Human Rights held that Part V of PACE (as amended) did not adequately protect the right to respect for privacy and family life  under Article 8 of the European Convention of Human Rights.  As a consequence, parliament enacted the Protection of Freedoms Act 2012, which restricts the use of DNA collected under Part V of PACE.  Crucially, the POFA provides that DNA collected from a person may not be used for a purpose unconnected with criminal investigations.

Part II of PACE was not mentioned in Marper and the POFA did not amend its wording.  The Local Authority argued that the construction of Part II of PACE therefore allowed DNA collected from premises to be used for purposes unconnected with criminal investigations – such as, in this case, for a paternity test.

The Court’s Decision

The Court of Appeal rejected the local authority’s argument.  Lord Dyson pointed out that DNA collected from premises under Part II was generally only of use if it could be linked to a person – and therefore it was as sensitive as DNA collected under Part V.  It would be arbitrary and irrational to read the legislation in such a way that suggested that Parliament wanted such sensitive material to be treated in different ways depending on how it was collected.  Instead, the Court should bear in mind that Parliament passed the Protection of Freedoms Act 2012 in order to remove the incompatibility between English law and the Article 8 ECHR.  Consequently, Part II of PACE should be read as meaning that DNA collected from premises must not be used for purposes unconnected with criminal investigations.

Lord Dyson went on to say that if there was any doubt about how he had interpreted Part II of PACE, it should be noted that s.3 of the Human Rights Act 1998 requires primary legislation to be read and given effect in a way which is compatible with Convention rights.  As the collection and retention of a person’s DNA clearly engages the right to a private life under Article 8, and Marper established that using DNA collected from a person (i.e. under Part V of PACE) for purposes unconnected with criminal investigations was incompatible with Convention rights, so it followed that using DNA collected from premises (i.e. under Part II of PACE) for purposes unconnected with criminal investigations would also be incompatible with Convention rights.  Consequently, the Human Rights Act also requires Part II of PACE to be read and given effect as restricting the use of DNA to purposes connected with criminal investigations.

Comment

At first blush, it might seem obvious that the local authority should be able to use DNA collected by the police in this way.  In the circumstances, how else are they going to be able to resolve the question of whether X is the children’s father?  But this engages important principles of human rights law and specifically the right to respect for private and family life, which were considered by the ECtHR in Marper.  Parliament’s response to the finding against the UK in that case was to legislate to tighten up the use of DNA collected from a person by passing the Protection of Freedoms Act 2012.  As Lord Dyson suggested, it undermine the logic of that statute to assume that Parliament meant to restrict how the police use DNA collected from a person (i.e. under Part V of PACE) but not DNA collected from a premises (i.e. under Part II of PACE).  It is encouraging that the police and the Home Secretary considered themselves bound by Marper and the Strasbourg Court’s interpretation of Article 8 here, although one can see from the local authority’s submissions that the case could have gone the other way.

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

Related posts:

 

4 comments


  1. DNA says:

    I agree with the court – DNA taken should not be used in such a frivolous way. Whay are the police even involved in a non criminal case?

  2. John Allman says:

    DNA taken from the crime scene was found to match DNA taken from the suspect, now convicted. Why was permission sought to use anything other than the DNA taken from the suspect, for the paternity test, or just the data on computer stored following the analysis of that sample for that matter?

    Why does biological paternity matter in the family application for contact with the children? Surely it is enough that the applicant has parental responsibility, having been married to the deceased mother.

    I’d be interested to know on what evidence the accused was convicted. When A is married to B, it is surely to be expected, is it not?, that A’s DNA and B’s DNA are likely to be found in the same places a great deal of the time, whether there has been an unsolved homicide or not. Married couples contaminate one another with their DNA routinely.

  3. ritajoseph says:

    Once again adult rights to ‘privacy’ trump the child’s right to “his or her identity” and “as far as possible, the right to know…
    his or her parents”.

    See the Convention on the Rights of the Child:

    Article 7

    1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.

    2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.

    Article 8

    1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

    2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.

  4. Biscuit says:

    “At first blush, it might seem obvious that the local authority should be able to use DNA collected by the police in this way.” My first reaction was the opposite: the Data Protection Act says data can only be stored and used for the purposes for which it is collected.

Comments are closed.

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.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals 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 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation 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 Secret trials sexual offence Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


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.

%d bloggers like this: