X (1st Appellant) The Commissioner of Police of the Metropolis Secretary of State (2nd Appellant Intervener) v Z (Children) (1st Respondent) A Local Authority (2nd Respondent)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lord Justice Beatson,Master of the Rolls |
| Judgment Date | 05 February 2015 |
| Neutral Citation | [2015] EWCA Civ 34 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 February 2015 |
| Docket Number | Case No: B4/2014/2034 AND B4/2014/2037 |
[2015] EWCA Civ 34
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Rt. Hon. Sir James Munby, President
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Dyson, MASTER OF THE ROLLS
Lord Justice McFarlane
and
Lord Justice Beatson
Case No: B4/2014/2034 AND B4/2014/2037
Ms Sarah Morgan QC and Ms Rebecca Mitchell (instructed by Sternberg Reed Solicitors) for the 1 st Appellant
Ms Anya Proops and Mr Sean Aughey (instructed by The Metropolitan Police Services) for the 2 nd Appellant
Ms Samantha Broadfoot (instructed by The Treasury Solicitor) for the Intervener
Mr Roger McCarthy QC and Mr Neil Shah (instructed by TV Edwards Solicitors) for the 1 st Respondent
Mr Matthew Stott (instructed by A Local Authority) for the 2 nd Respondent
Hearing dates: 9 th–10 th December, 2014
Master of the Rolls:
This appeal concerns the question of the circumstances in which DNA profiles obtained by the police in exercise of their criminal law enforcement functions can, without the consent of the data subject, be put to uses which are remote from the field of criminal law enforcement. It is not in dispute that, where such profiles are obtained directly by the police under the questioning and treatment of persons provisions contained in Part V of the Police and Criminal Evidence Act 1985 (as amended) ("PACE"), they may not be used other than for the purposes specified in section 63T of PACE. I shall refer to these purposes as "criminal law enforcement purposes", although as will become apparent they are somewhat wider than what is conventionally considered to be criminal law enforcement. The question that we have to decide is whether a similar prohibition applies in relation to DNA profiles obtained by the police in exercise of their search and seizure powers under Part II of PACE.
In a judgment given on 18 June 2014 in care proceedings, Sir James Munby, the President of the Family Division, held that there was no such prohibition in respect of Part II DNA profiles. He decided that the court had a discretion to order the disclosure of DNA profiles obtained under Part II of PACE in order to assist the court in resolving a paternity issue which had arisen in those proceedings. He concluded that, in the exercise of the court's discretion, the Commissioner of the Police for the Metropolis ("The Commissioner") should be ordered to disclose the profiles.
The background
The respondents to this appeal are young children. In 2013 the appellant X, who is their "psychological" father, murdered their mother. Swabs were taken from the scene of the crime by the Metropolitan Police Service ("MPS"). These swabs were taken in the exercise of the MPS's powers under Part II of PACE. A blood sample was also taken from the mother post mortem. Thereafter, the MPS commissioned the profiling of all the crime scene blood swabs and their comparison with a DNA profile derived from a mouth sample provided by X under Part V of PACE following his arrest. The comparison indicated to a very high standard of probability that the blood at the scene of the crime was X's blood. X was subsequently convicted of murdering the mother.
The children are now the subject of care proceedings. In these proceedings, X has asserted that he is not only the psychological father, but also the biological father of the children. He has apparently done so because he wishes the court to permit him to have a role in the children's lives. Surprisingly, X refuses to undergo DNA testing to corroborate his assertion. In the face of this refusal, the children's guardian ("the Guardian") applied to the court for disclosure of various materials containing DNA information held by the Commissioner. In its final form, the application was for disclosure of two sets of DNA profiles ("the Disputed Profiles"), namely (i) a set of profiles derived from the blood stains found at the scene of the crime; and (ii) a DNA sample derived from a mouth sample taken from the mother post mortem. It has always been accepted by the Guardian that an application for disclosure of the DNA profile derived from the mouth sample provided by X under Part V is prohibited by section 63T. The thinking behind the application is that, if the DNA sample derived from the mother does not match the profile derived from the blood found at the scene of the crime, then, since this is a "closed scene of crime", it can be inferred that the blood must have been that of X and not the mother.
The application for disclosure of the Disputed Profiles was supported by the local authority ("LA"), in its capacity as the local authority responsible for the children. It was resisted by the Commissioner (supported by the Secretary of State for the Home Department who is an intervener in these proceedings). The Secretary of State has ultimate responsibility for the National DNA Database ("the database") and the policy relating to the retention and disclosure of samples and DNA profiles derived from them.
By an order dated 23 June 2014, following a judgment given on 18 June, the President ordered the Commissioner to make disclosure to the local authority.
X and the Commissioner now appeal against the order with the permission of McFarlane LJ. It is not in dispute that, if the Commissioner has no power to disclose the Disputed Profiles except for criminal law enforcement purposes, then the court has no power to order the Commissioner to disclose them for use in care proceedings. The court cannot exercise its inherent jurisdiction to require a person to do something which is prohibited by statute.
The issues
There are three main issues. These are (i) whether on its true construction Part II of PACE prohibits the use of DNA profiles obtained under Part II other than for criminal law enforcement purposes ("the construction issue"); (ii) if not, whether section 6 of the Human Rights Act 1998 ("the HRA") operates to exclude any judicial discretion to order disclosure of Part II DNA profiles except for criminal law enforcement purposes ("the discretion issue"); and (iii) if not, whether the President reached a perverse conclusion in the present case when he concluded that the Disputed Profiles should be disclosed. As I shall explain, the issues were formulated rather differently before the President.
The statutory framework
The law relating to the collection and retention of biometric data, such as DNA samples, DNA profiles and fingerprints, has evolved significantly over the years, in order to take account of developments in technology as well as an increasing appreciation by the State, the public and the courts, of the sensitivity of the collection and retention of such data. Section 64(1) of PACE as originally enacted provided that samples from any person cleared of an offence were to be destroyed as soon as reasonably practicable after the conclusion of the proceedings. The Criminal Justice and Public Order Act 1994 established the database. It also made a number of changes to the rules which regulate the collection of tissue samples and gave the police powers to search the database for matches between DNA profiles. Data and samples could only be kept if the person was found guilty; if the person was not charged or was acquitted, the data and the sample had to be destroyed.
The powers to collect, retain and cross refer samples were further extended as a result of provisions contained in the Criminal Procedure and Investigations Act 1996, the Criminal Evidence (Amendment) Act 1997 and the Criminal Justice and Police Act 2001. The latter Act introduced section 64(1A) into PACE and provided the basis for the indefinite retention of samples taken from suspects, so that they remained available to the police on the database. This was the central provision that was held by the ECtHR in S and Marper v UK (2009) 48 EHRR 50 to be lacking in the safeguards required by article 8 of the European Convention on Human Rights ("the Convention"). I consider the Marper decision in detail at paras 39 to 43 below. The main response of the UK Government to the decision was contained in a White Paper, Keeping the Right People on the DNA Database, which was published on 7 May 2009. This led to the enactment of the Protection of Freedoms Act 2012 ("POFA").
The effect of POFA was to repeal section 64(1A) of PACE and to replace Part V of PACE in its entirety. Part V makes provision for the questioning and treatment of persons by the police. Part II (which was unaffected by Marper and untouched by POFA) makes provision for powers of entry and search of premises and seizure of anything which is on the premises. The amendments to Part V were introduced in order to meet the criticisms expressed by the ECtHR in Marper of the blanket and indiscriminate retention of DNA material from unconvicted individuals. These criticisms were met by setting out, in far more detail than had previously been the case, the circumstances in which fingerprints and DNA materials could be retained and for how long.
At this stage, I should refer to the relevant provisions of Part V in their current version. That is the version which is relevant for the purposes of this appeal and the determination of the construction of section 22.
Section 63D makes provision for the destruction of the material to which it applies, namely:
..."(1)
(a) fingerprints –
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