Whether DNA sample taken for criminal purposes can be used for paternity test?

X & 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 thePolice 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.