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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> X & Anor v Z (Children) & Anor [2015] EWCA Civ 34 (05 February 2015) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2015/34.html Cite as: [2015] Fam Law 369, [2015] 4 All ER 205, [2015] EWCA Civ 34, [2015] WLR(D) 76, [2015] 1 WLR 2501, [2015] 1 Cr App R 28, [2015] 1 FLR 1100 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Rt. Hon. Sir James Munby, President
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE McFARLANE
and
LORD JUSTICE BEATSON
____________________
X The Commissioner of Police of the Metropolis Secretary of State |
1st Appellant 2nd Appellant Intervener |
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- and - |
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Z (Children) A Local Authority |
1st Respondent 2nd Respondent |
____________________
Ms Anya Proops and Mr Sean Aughey (instructed by The Metropolitan Police Services) for the 2nd 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 1st Respondent
Mr Matthew Stott (instructed by A Local Authority) for the 2nd Respondent
Hearing dates: 9th-10th December, 2014
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Crown Copyright ©
Master of the Rolls:
The background
The issues
The statutory framework
"(1)
(a) fingerprints –
(i) taken from a person under any power conferred by this Part of this Act, or
(ii) taken by the police, with the consent of the person from whom they were taken, in connection with the investigation of an offence by the police, and
(b) a DNA profile derived from a DNA sample taken as mentioned in paragraph (a)(i) or (ii)."
"(1) ….samples--
(a) taken from a person under any power conferred by this Part of this Act, or
(b) taken by the police, with the consent of the person from whom they were taken, in connection with the investigation of an offence by the police."
"(1) Any material to which section 63D, 63R or 63S applies must not be used other than –
(a) in the interests of national security,
(b) for the purposes of a terrorist investigation,
(c) for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution, or
(d) for purposes related to the identification of a deceased person or of the person to whom the material relates.
(2) Material which is required by section 63D, 63R or 63S to be destroyed must not at any time after it is required to be destroyed be used –
(a) in evidence against the person to whom the material relates, or
(b) for the purposes of the investigation of any offence.
(3) In this section –
(a) the reference to using material includes a reference to allowing any check to be made against it and to disclosing it to any person,
(b) the reference to crime includes a reference to any conduct which –
(i) constitutes one or more criminal offences (whether under the law of England and Wales or of any country or territory outside England and Wales), or
(ii) is, or corresponds to, any conduct which, if it all took place in England and Wales, would constitute one or more criminal offences, and
(c) the references to an investigation and to a prosecution include references, respectively, to any investigation outside England and Wales of any crime or suspected crime and to a prosecution brought in respect of any crime in a country or territory outside England and Wales."
"(1) The powers conferred by subsections (2), (3) and (4) below are exercisable by a constable who is lawfully on any premises.
(2) The constable may seize anything which is on the premises if he has reasonable grounds for believing—
(a) that it has been obtained in consequence of the commission of an offence; and
(b) that it is necessary to seize it in order to prevent it being concealed, lost, damaged, altered or destroyed.
(3) The constable may seize anything which is on the premises if he has reasonable grounds for believing—
(a) that it is evidence in relation to an offence which he is investigating or any other offence; and
(b) that it is necessary to seize it in order to prevent the evidence being concealed, lost, altered or destroyed."
"(1) A constable who seizes anything in the exercise of a power conferred by any enactment, including an enactment contained in an Act passed after this Act, shall, if so requested by a person showing himself—
(a) to be the occupier of premises on which it was seized; or
(b) to have had custody or control of it immediately before the seizure,
provide that person with a record of what he seized.
(2) The officer shall provide the record within a reasonable time from the making of the request for it.
(3) Subject to subsection (8) below, if a request for permission to be granted access to anything which—
(a) has been seized by a constable; and
(b) is retained by the police for the purpose of investigating an offence,
is made to the officer in charge of the investigation by a person who had custody or control of the thing immediately before it was so seized or by someone acting on behalf of such a person, the officer shall allow the person who made the request access to it under the supervision of a constable."
"(1) Subject to subsection (4) below, anything which has been seized by a constable or taken away by a constable following a requirement made by virtue of section 19 or 20 above may be retained so long as is necessary in all the circumstances. "
(2)Without prejudice to the generality of subsection (1) above—
(a) anything seized for the purposes of a criminal investigation may be retained, except as provided by subsection (4) below—
(i) for use as evidence at a trial for an offence; or
(ii) for forensic examination or for investigation in connection with an offence; and
(b) anything may be retained in order to establish its lawful owner, where there are reasonable grounds for believing that it has been obtained in consequence of the commission of an offence."
The judgment
"I emphasise the fact that I am not being asked to direct the production of any exhibit or the original of any profile. The Metropolitan Police is, understandably and appropriately, concerned that there should be no risk by contamination or otherwise to the integrity of any of the exhibits from the criminal proceedings or any of the original profiles. To understand the importance of preserving the integrity of such materials, against some future day when they may need to be put to some at present unforeseen and even unforeseeable use, one has to look no further than the eventual resolution in 2002, by the DNA testing of the original trial exhibits, of the question of whether or not the man who had been executed in 1962 for having committed the A6 murder was in act guilty: R v Hanratty [2002] EWCA Crim 1141, [2002] 3 All ER 534. "
"42. Ms Broadfoot submits that a DNA sample or profile derived from a crime scene sample seized under Part II of PACE which has been matched to a DNA sample or profile taken under Part V of PACE may not be ordered to be disclosed for paternity purposes because the disclosure of the Part II sample would, as she puts it, involve the collateral (and prohibited) use of the Part V sample, in breach of section 63T. I agree with the proposition and the conclusion but it rests on an unspoken assumption which is at odds with what is sought in this case. "
43. Ms Broadfoot says that crime scene samples and the profiles derived from them are of limited use on their own as they cannot identify any particular person. DNA, she says, only becomes significant for identification purposes once compared with that of a known person. She amplifies the point by postulating a case where samples at a crime scene produce 15 different DNA profiles. After 14 persons have been eliminated from the inquiry, the remaining man is convicted. A paternity issue arises and the guardian seeks the DNA profile from the crime scene relating to the convicted man. The only way, she says, the police can identify his DNA profile from the other 14 is by matching it to the Part V sample. This involves a use of the Part V sample (see section 63A(1)), which is not permitted for paternity purposes.
44. The short answer to all this, as Mr McCarthy points out, is that, whatever might be needed in another case, there is no need in this case to compare anything with a Part V sample, and that is not what he is proposing.
45. Evidence, entirely independent of any samples or DNA profiles, demonstrates that the blood at the crime scene in all probability includes both the mother's blood and X's blood. The unidentified DNA profiles obtained from those samples can, without reference to any other samples (whether obtained under Part V of PACE or, post mortem, from the mother's body), be compared with the DNA samples obtained, pursuant to the order already made by Hogg J, from the children. If those unidentified DNA profiles identify two persons as being parents of the children, then that will, without more, establish X's paternity. If those unidentified DNA profiles identify one person as being a parent of the children, then it will be necessary to compare the relevant profile with that obtained from the mother's post mortem sample to establish whether it is hers or, by elimination, X's.
46. Mr McCarthy submits that Ms Broadfoot's submissions entirely miss the point of this application, which makes no reference to and is not in any way dependent upon any Part V sample. As he says, none of the examples given by Ms Broadfoot have anything to do with the factual basis upon which the guardian's application is mounted. With brutal simplicity, he summarises his case as follows: The guardian's case is simple. No reference is made to any Part V samples; no reference is made to any comparison with any Part V sample; no disclosure is sought of any Part V sample (or, I might add, anything derived from a Part V sample). Section 63T, he submits, does not apply."
"In these circumstances, the balance, in my judgment, comes down in favour of the children. The criminal justice policy arguments are weighty, though in the circumstances of this case significantly less weighty than Ms Broadfoot would have me accept. The interests of the children are compelling. There are likely to be few other cases in which an order can sensibly be sought without having recourse—prohibited—to Part V material or material the use of which is prohibited by the Human Tissue Act 2004. The order I propose to make will be subject to stringent limitations and safeguards."
"I emphasise that my decision is confined to the forensically unusual circumstances of this particular case. Every case where an application is made for access to DNA samples or profiles requires the most anxious scrutiny and an intense focus on the specific facts and circumstances of the particular case. Even if there is no statutory prohibition of what is sought, an order is never to be had just for the asking. There will be cases where the policy arguments put forward by Ms Broadfoot will be found to weigh heavier in the balance than I have found in this case—a case which is not merely forensically unusual as requiring no recourse to Part V material but one where the children's claims are unusually compelling"
The first issue: the construction of Part 11 of PACE
Marper
"75. The Court observes, nonetheless, that the profiles contain substantial amounts of unique personal data. While the information contained in the profiles may be considered objective and irrefutable in the sense submitted by the Government, their processing through automated means allows the authorities to go well beyond neutral identification. The Court notes in this regard that the Government accepted that DNA profiles could be, and indeed had in some cases been, used for familial searching with a view to identifying a possible genetic relationship between individuals. They also accepted the highly sensitive nature of such searching and the need for very strict controls in this respect. In the Court's view, the DNA profiles' capacity to provide a means of identifying genetic relationships between individuals (see paragraph 39 above) is in itself sufficient to conclude that their retention interferes with the right to the private life of the individuals concerned. The frequency of familial searches, the safeguards attached thereto and the likelihood of detriment in a particular case are immaterial in this respect (see Amann cited above, § 69). This conclusion is similarly not affected by the fact that, since the information is in coded form, it is intelligible only with the use of computer technology and capable of being interpreted only by a limited number of persons."
"It reiterates that it is as essential, in this context, as in telephone tapping, secret surveillance and covert intelligence-gathering, to have clear, detailed rules governing the scope and application of measures, as well as minimum safeguards concerning, inter alia, duration, storage, usage, access of third parties, procedures for preserving the integrity and confidentiality of data and procedures for its destruction, thus providing sufficient guarantees against the risk of abuse and arbitrariness. The Court notes, however, that these questions are in this case closely related to the broader issue of whether the interference was necessary in a democratic society. In view of its analysis in paragraphs 105-126 below, the Court does not find it necessary to decide whether the wording of section 64 meets the "quality of law" requirements within the meaning of Article 8 § 2 of the Convention. "
"103. The protection of personal data is of fundamental importance to a person's enjoyment of his or her right to respect for private and family life, as guaranteed by Article 8 of the Convention. The domestic law must afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees of this article. The need for such safeguards is all the greater where the protection of personal data undergoing automatic processing is concerned, not least when such data are used for police purposes. The domestic law should notably ensure that such data are relevant and not excessive in relation to the purposes for which they are stored; and preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored. The domestic law must also afford adequate guarantees that retained personal data was efficiently protected from misuse and abuse. The above considerations are especially valid as regards the protection of special categories of more sensitive data and more particularly of DNA information, which contains the person's genetic make-up of great importance to both the person concerned and his or her family.
104. The interests of the data subjects and the community as a whole in protecting the personal data, including fingerprint and DNA information, may be outweighed by the legitimate interest in the prevention of crime. However, the intrinsically private character of this information calls for the Court to exercise careful scrutiny of any State measure authorising its retention and use by the authorities without the consent of the person concerned."
Domestic law interpretation of section 22(1) and (2)
Construction of section 22(1) and (2) compatible with article 8 of the Convention
"(1) Everyone has the right to respect for his private and family life….
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society…."
"The President's judgment deals with the present dispute before the Court and does not attempt to set out authoritative guidelines for other cases where the facts and competing issues may be quite different….It would have been dangerous for him to do so because there would have had to have been a great deal of guesswork about other cases. The President's decision is not authority on points which were neither argued nor decided."
"The Court is naturally mindful of the fact that in the particular context of measures concerning national security, the requirement of foreseeability cannot be the same as in many other fields. In particular, the requirement of 'foreseeability' of the law does not go so far as to compel states to enact legal provisions listing in detail all conduct that may prompt a decision to expel an individual on national security grounds. By the nature of things, threats to national security may vary in character and may be unanticipated or difficult to define in advance. However, even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that deportation measures affecting fundamental human rights be subject to some form of adversarial proceedings before an independent authority or a court competent to effectively scrutinise the reasons for them and review the relevant evidence, if need be with appropriate procedural litigation on the use of classified information. "
Conclusion on the construction issue
Lord Justice McFarlane:
Lord Justice Beatson: