London Borough of Lewisham v D (Police disclosure of DNA Sample to Local Authority)
| Jurisdiction | England & Wales |
| Judge | Stephen Cobb |
| Judgment Date | 29 March 2010 |
| Neutral Citation | [2010] EWHC 1239 (Fam) |
| Date | 29 March 2010 |
| Court | Family Division |
[2010] EWHC 1239 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Stephen Cobb QC
sitting as a Deputy High Court Judge
Ms Jane E Gill for the Local Authority
Mr. Dorian Day for the First Respondent
Mr. Neil Bullock for the Fifth Respondent
Ms Samantha King for the Seventh to Tenth Respondents (children by their Children's Guardian)
Mr. Tom Little for the Commissioner of the Police of the Metropolis
Ms Samantha Broadfoot for the Secretary of State for the Home Department
Hearing dates: 23 rd March 2010
Introduction
This Judgment should be read alongside the Judgment which I delivered in these proceedings on the 17 th February 2010.
The current application was foreshadowed in the earlier proceedings, and referred to in paragraph 21(b) of that earlier Judgment. The Judgment delivered on the 17 th February 2010 was at the conclusion of what I described as the 'first stage' of a disclosure process between criminal and family processes; this judgment is delivered at the conclusion of the 'second stage'.
The background history to the application is summarised in paragraph 7 of the earlier Judgment, and I do not propose to rehearse it here, save to say that I remain concerned generally in these proceedings with the welfare of four children
(a) R
(b) A
( c) B
(d) J
The application before me now is that dated 23 rd February 2010; by that application the Local Authority seeks the following relief namely:
…disclosure from the Commissioner of Police of the Metropolis of the result of the matching of the DNA of the children R, A, B and J with that of the DNA of D.
For the purposes of the application, the parties are the same (and save, in one respect, are represented by the same counsel); additionally, for this hearing, I have had the benefit of submissions from the Secretary of State for the Home Department, whom I had cause to be served with the position statements and application when I was informed in February that this application was likely to be made.
The Application is opposed by the Commissioner of Police of the Metropolis, by the Secretary of State for the Home Department, and by the First and Fifth Respondents. The Children's Guardian reluctantly felt obliged to oppose the Local Authority's application as drafted, though in submissions advocated an alternative course which would have led to the disclosure of other potentially relevant material. I turn to this later in this judgment.
The law
The power of the Commissioner of Police of the Metropolis to retain samples of DNA taken from arrested purposes is to be found within the provisions of PACE 1984. At paragraph 26 of the earlier Judgment I set out the full terms of section 64(1A) of the Police and Criminal Evidence Act 1984. For ease of reference, I repeat it here.
'Where—
(a) Fingerprints … or samples are taken from a person in connection with the investigation of an offence, and
(b) subsection (3) below does not require them to be destroyed,
the fingerprints … or samples may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution…'
It is also helpful for the purposes of this judgment, that I should set out here in full the provisions of section 64(1B) of PACE 1984:
" In subsection (1A) above—
(a) the reference to using a fingerprint … includes a reference to allowing any check to be made against it under section 63A( 1) or (1C) above and to disclosing it to any person;
(b) the reference to using a sample includes a reference to allowing any check to be made under section 63A( 1) or (1C) above against it or against information derived from it and to disclosing it or any such information to any person.
(c) The reference to crime includes a reference to any conduct which
i) Constitutes one or more criminal offences …
ii) Is, or corresponds to, any conduct which, if it all took place in any one part of the United Kingdome would constitute one or more criminal offences;
And
(d) the references to an investigation and to a prosecution include references, respectively, to any investigation outside the United Kingdome of any crime or suspected crime and to a prosecution brought in respect of any crime in a country or territory outside the United Kingdom."
[my emphasis in each instance]
Section 64(3) provides
" If—
(a) the fingerprints… or samples are taken from a person in connection with the investigation of an offence; and
(b) that person is not suspected of having committed the offence,
they must, except as provided in the following provisions of this section, be destroyed as soon as they have fulfilled the purpose for which they were taken."
Later in this judgment I refer to section 63A(1) so I set this out at this stage thus:
"(1) Where a person has been arrested on suspicion of being involved in a recordable offence or has been charged with such an offence or has been informed that he will be reported for such an offence, fingerprints … or samples or the information derived from samples taken under any power conferred by this Part of this Act from the person may be checked against—
(a) other fingerprints … or samples to which the person seeking to check has access and which are held by or on behalf of any one or more relevant law-enforcement authorities or which are held in connection with or as a result of an investigation of an offence
(b) information derived from other samples if the information is contained in records to which the person seeking to check has access and which are held as mentioned in (a) above."
Some of these statutory provisions have already been considered by this Court in this case on two previous occasions in this case: by Macur J. on 20 th January 2010 (see para.19 of my earlier judgment), and by me on 17 th February 2010. At the hearing before Macur J. the parties had in fact formally agreed that—pursuant to the provisions of section 64(1A)—the Court could not direct the Commissioner of Police of the Metropolis to disclose or release any sample of the DNA taken from the First Respondent for the purposes of comparing it with the DNA taken by the children; if there was any doubt about their approach at that time, Ryder J in The London Borough of Lambeth v S C V J & others [2006] EWHC 326 (Fam) [2007] 1 FLR 152, (the " Lambeth case") laid such doubt to rest.
The Local Authority's case on the present application is set out in a Skeleton Argument, and has been advanced orally by Ms Gill at the hearing. It can be summarised in this way:
(a) The Local Authority does not seek disclosure of the First Respondent's DNA sample itself, rather it seeks the results of the analysis and/or the matching report following the comparison of the DNA samples of the First Respondent and the children;
(b) The Local Authority wishes to investigate the issue of familial relationships in these proceedings; it is important to their care planning. If the First Respondent has been involved in child trafficking this would have such serious child protection implications, and this issue therefore needs to be "investigated" by the Local Authority in the context of its proceedings brought under section 31 of the Children Act 1989;
(c) Disclosure of the 'DNA matching' report (it was even suggested even the DNA sample of the First Respondent itself) does not offend against section 64(1A) of PACE 1984 as the local authority need (and have a statutory duty) to investigate the alleged 'offence' of child trafficking for the purposes of their proceedings; it is argued that it matters not that the Local Authority is not a prosecuting body: it is further said that "the possibility that the First Respondent has committed a serious crime in relation to the children in the Local Authority's care is a matter which has to be properly looked into and "investigated" by the Local Authority";
(d) The Lambeth case can be distinguished on the basis that in that case the investigations in to serious crime had concluded, and the sole issue was paternity; here the investigations have not concluded;
and generally:
(e) Barriers should not be erected between different agencies in the justice system;
(f) All evidence which has been lawfully obtained should be made available to the Local Authority and to the Court;
(g) It is in the best interests of the children that their parentage is established;
(h) Without this critical piece of evidence, the Local Authority will be in ignorance of one highly material factor which would carry weight in their recommendations and final care plan.
As indicated above, all other parties oppose the application. The First and Fifth Respondent spoke with one voice in arguing that such disclosure would be "unlawful". The Children's Guardian realistically recognises that the Lambeth decision creates "clear difficulties" for the Local Authority in its application for disclosure of the DNA sample "or the profile derived from it by the police". The Children's Guardian conceded that the purpose to which the comparison test would be put would indeed be caught by section 64(1A) PACE 1984. The Children's Guardian invited consideration of the argument that the Court might nonetheless be empowered to direct disclosure of the 'matching' information held by the police into the care proceedings since this was ancillary to the primary purpose for which the sample was being kept and lawfully used by the police—essentially, it was argued that "the benefits to the care proceedings would be a by-product of the predominant purpose".
Specifically, I have been asked by...
To continue reading
Request your trial
-
Z (Children)
...London Borough v S, C, V and J (by his Guardian) [2006] EWHC 326 (Fam), [2007] 1 FLR 152, and Lewisham London Borough Council v D (Police Disclosure of DNA sample to local authority) [2010] EWHC 1239 (Fam), [2011] 1 FLR 908. 13 In the first of these cases, Ryder J as he then was said (par......