R (on The Application of R) v A Chief Constable
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pitchford,Mr Justice Hickinbottom |
| Judgment Date | 24 September 2013 |
| Neutral Citation | [2013] EWHC 2864 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 September 2013 |
| Docket Number | Case No: CO/3571/2013 |
[2013] EWHC 2864 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT SITTING IN BIRMINGHAM
Birmingham Civil Justice Centre
Priory Courts, 33 Bull Street, Birmingham
Lord Justice Pitchford and Mr Justice Hickinbottom
Case No: CO/3571/2013
Stephen Cragg QC (instructed by Bhatia Best) for the Claimant
Dijen Basu (instructed by Jason Woodman, Solicitor) for the Defendant
Introduction
It is common ground that by reason of his previous convictions the claimant was, from 7 March 2011, liable to have taken from him without his consent a non-intimate sample, pursuant to section 63(3B)(a) and (3BA)(a) of the Police and Criminal Evidence Act 1984 (as amended by section 2(7) of the Crime and Security Act 2010).
On 12 March 2013 the claimant was visited at his home by PC Woodcock and handed a letter dated 11 March 2013. The letter informed the claimant that he was requested to consent to the taking of a non-intimate sample. It concluded:
"You will be asked to consent to provide the sample. If you do not consent at this stage, we require you to attend a police station within 7 days. The time and date of your attendance can be discussed with the person delivering this letter.
At the police station, the sample may be taken with the authority of a police officer of the appropriate rank. If you fail to attend the police station as required you may be liable to arrest."
In his first witness statement the claimant says that he was told by PC Woodcock that he "had to make arrangements within 7 days to provide a non-intimate sample to be placed on the Police National DNA Database". He continued, "I was informed…that if I did not consent voluntarily to give a sample then I could be arrested and a sample could forcibly be taken". The claimant did not give his consent.
It is conceded on behalf of the defendant that the purpose of the request was to enable the defendant to compare the claimant's DNA profile with those held by the police in connection with unsolved crime (section 63A Police and Criminal Evidence Act 1984 — "PACE"). The effect, it is contended by the defendant, is to assist the detection of crime and to deter the commission of criminal offences by the claimant and others. There is an issue whether the terms of the letter amounted to a request only or to a requirement in the event that consent was not immediately forthcoming.
On 13 March 2013 the claimant's solicitors wrote a pre-action protocol letter challenging the 'decision'. The letter claimed that the claimant had handed to them a notice of a requirement to attend a police station under section 63A(3B) [sic] of the 1984 Act for the purpose that a non-intimate sample may be taken without his consent. In his reply the defendant confirmed that if the claimant did not consent to the taking of a sample he would be liable to arrest. On 19 March 2013 the claimant was notified that his appointment at the police station had been made for 26 March 2013. On 25 March 2013 the claimant filed his claim form. On 26 March 2013 Hickinbottom J granted an injunction restraining the defendant from exercising the power of arrest under paragraph 17, Schedule 2A of the 1984 Act. On 26 April 2013 Detective Inspector ("DI") Ashman gave his authorisation for the taking of the sample as "necessary to assist in the prevention or detection of crime" and made a requirement that the claimant should attend a police station for the purpose of taking a non-intimate sample, under section 63(3B) and paragraph 11 of schedule 2A Police and Criminal Evidence Act 1984, by 5 pm Friday 3 May 2013. On 3 May 2013 Kenneth Parker J granted permission to proceed. This is the hearing of the claim for judicial review in which the claimant seeks an order quashing the decisions to make the requirement, a declaration that the decision to require the claimant to attend the police station and/or to take a sample was unlawful, and damages.
Grounds of claim
The claimant contends that on 12 March 2013 and/or on 26 April 2013 the defendant unlawfully required the claimant to attend a police station for the purpose that a non-intimate sample could be taken without his consent. Art 8(1) of the European Convention on Human Rights ("ECHR") required the defendant to accord respect for the claimant's private life. Art 8 was engaged by the decisions: to 'require' the claimant to provide a non-intimate sample; to 'require' the claimant to attend a police station; to issue a threat to arrest the claimant if he did not comply; and to take or threaten to take a non-intimate sample without consent for the purpose of speculative searching and retention.
It is conceded by the claimant that for the purpose of Art 8(2) the requirement was made for the legitimate purpose of the prevention of disorder or crime. However, his case is that for the interference to be lawful a fair balance must be struck between the right of the claimant to respect for his private life and the public interest in the legitimate aim identified. The claimant's case is that the decision to make the requirement in the circumstances was disproportionate and, therefore, unlawful. In his witness statement of 25 March 2013 the claimant says that he was convicted of manslaughter (on 14 November 1984) in consequence of picking up a male friend in his car. The claimant drove to a car park where they were disturbed, he thought, by a security vehicle. His companion fled the car and "jumped over what I assume he thought was a low wall". The deceased suffered injuries from which he died. The defendant has since recovered the statement under caution made by the claimant on 13 June 1984 at the time of the investigation. This statement was not available to the defendant at the time the decision was made to make the requirement to provide a non-intimate sample. It is, however, relevant to the credibility of the claimant's assertion that the requirement was disproportionate and I would, exceptionally, admit the statement in evidence. In that statement the claimant said that he engaged in consensual sexual activity with a male who then asked for money. An argument ensued. Both men left the claimant's car and they grappled with one another in the immediate vicinity of a wall about 4 feet 6 inches in height. In the course of the struggle the deceased went over the wall and fell some 25 feet to the ground below, suffering severe injuries from which he died. It was the prosecution case that the claimant had pushed the deceased over the wall. The claimant told the police in a subsequent interview that he could not remember whether he had pushed the deceased or not. He did not give evidence at his trial and he was convicted of unlawful act manslaughter. At paragraph 9 of his current witness statement the claimant says that before he surrendered himself to the police he "confessed everything" to his then partner (now his wife). His partner made a witness statement on 14 June 1984 in which she said that the claimant told her he had pushed the deceased over the wall. Two weeks later she retracted that statement.
The claimant acknowledges in his witness statement that following his release from prison and well into the 1990s he was a heavy drinker "and prioritised my own selfish wellbeing over that of my wife and my children". He said that he frequently went out with friends and acquaintances drinking and getting involved in petty crime. It was during this period that the claimant admitted being involved in the kidnap of "a friend" by taking him "into the country". The claimant described this incident as "a stupid prank" for which, following conviction, he was sentenced to four months imprisonment.
The claimant said at paragraph 13 of his witness statement that he turned his life around some 13 years ago. He commenced his own business and gave up drinking. His wife was diagnosed with a life-threatening illness some five years ago and he is now her sole carer.
The claimant further contends that the manner in which the requirement to provide a non-intimate sample was made was, in any event, unlawful since it failed to comply with the statutory pre-condition that authorisation should be given by a police officer of the rank of inspector before the requirement was made. Although the authorisation may, other things being equal, justify a future requirement such as that made on 26 April 2013, the requirement made on 12 March was unlawful. However, it is said that other things are not equal. The claimant contends that the reasons given by DI Ashman for providing the authorisation failed to strike the balance required.
Finally, the claimant contends that before the requirement was made to provide a non-intimate sample the defendant was bound, in order to ensure fairness and/or to render the demand proportionate, to provide him with the opportunity to make representations and this the defendant failed to do.
S v United Kingdom
In S v UK [2009] 48 EHRR 50 the European Court of Human Rights ("ECtHR") considered the applications of two British nationals who had been required to provide samples of their fingerprints and cellular material for DNA analysis under sections 61 and 63 of the Police and Criminal Evidence Act 1984 following their arrests on suspicion of criminal offences. Subsequently, they were acquitted, or the proceedings were discontinued. Section 64(1A), as inserted by section 82 Criminal Justice and Police Act 2001, provided that the fingerprints and samples might be retained but should not be...
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