R, R (on the application of) v A Chief Constable

A requirement to attend a police station to provide a non-intimate DNA sample under the statutory scheme is lawful only if the necessary inspector-level authorisation has first been given. The taking of such a sample engages article 8, but may be proportionate where Parliament has confined the power to persons convicted of specified serious offences. The absence of suspicion relating to a particular offence, or the low statistical probability of an individual match, does not by itself make the requirement disproportionate. The court must weigh the interference against the value of the sample in detecting crime, allowing appropriate weight to the chief constable’s assessment. A person should generally have an opportunity to raise exceptional personal circumstances before authorisation, but no procedural unfairness arose where the material facts were undisputed and had been fully addressed.

The claimant had previous convictions for manslaughter and kidnapping. He challenged requirements made by a chief constable that he attend a police station to provide a non-intimate DNA sample for comparison with crime-scene profiles on the national database.

The first request stated that, if consent was withheld, the claimant was required to attend within seven days. It was made before inspector-level authorisation had been obtained. A later requirement was authorised by a detective inspector under the statutory scheme. The claimant alleged breach of article 8, disproportionality, failure to comply with statutory preconditions, and procedural unfairness in failing to invite representations.

1. The March requirement. The letter plainly demanded attendance at a police station if the claimant did not immediately consent. A requirement under paragraph 11 of Schedule 2A to the Police and Criminal Evidence Act 1984 could be made only after the necessary authorisation under section 63 had been obtained. The March requirement was therefore unlawful. The ACPO guidance was seriously inaccurate insofar as it suggested that the requirement could precede authorisation.
2. Article 8. Requiring a person to provide a non-intimate sample for DNA profiling and comparison with crime-scene profiles interfered with private life. The reasoning in S v United Kingdom [2009] 48 EHRR 50 concerned the blanket retention of samples from persons suspected but not convicted. The statutory scheme here was confined to defined categories of persons previously convicted of serious offences, and no comparable stigma arose merely from the requirement.
3. Proportionality. The court considered the extent of the interference, the value of the sample in detecting and reducing crime, and whether the requirement was appropriate and proportionate, allowing an appropriate margin to the chief constable because Parliament had entrusted primary decision-making to him. Statistical uncertainty was not determinative. Propensity to offend could properly be treated as an imprecise measure of the probability of further offending and detection. Specific suspicion of an individual offence was unnecessary.
4. Representations. The better course was to give the person an opportunity to raise exceptional personal circumstances before authorisation. However, the claimant’s convictions and other relevant facts were largely undisputed, and his evidence had been considered before the later requirement was made. His article 8 rights had therefore been adequately protected.
5. The April requirement was lawful and proportionate. The claim was dismissed.

This was a first-instance judicial review. An interim injunction restraining arrest was granted on 26 March 2013, and permission to proceed was granted on 3 May 2013. The Administrative Court dismissed the substantive claim.