X & Anor v Z (Children) & Anor

Biometric material seized by the police from premises under Part II of the Police and Criminal Evidence Act 1985 cannot be retained, used or disclosed for purposes outside criminal law enforcement where it is retained for those purposes. The indirect source of a DNA profile does not justify different treatment from a profile obtained directly from a person. Once linked to a known individual, the profiles are practically indistinguishable, and a contrary distinction would be arbitrary and irrational. Alternatively, wider use would breach Article 8 because the statutory regime would lack sufficient certainty, precision and safeguards. A court cannot order disclosure which statute prohibits. The construction was confined to biometric material and did not affect established disclosure arrangements for other seized material.

In care proceedings concerning children whose mother had been murdered, X asserted that he was their biological father but refused DNA testing. The Guardian sought disclosure of DNA profiles derived from blood seized at the crime scene and from a post-mortem sample of the mother. The profiles had been obtained by the police under Part II of the Police and Criminal Evidence Act 1985. The President of the Family Division ordered disclosure: [2014] EWHC 1999 (Fam).

The Commissioner of Police and X appealed. The central question was whether Part II biometric material could be disclosed for paternity purposes, or whether the restrictions governing material obtained directly from a person under Part V applied equally.

The appeals were allowed and the order for disclosure was set aside.

1. Material obtained directly from a person under Part V of the Police and Criminal Evidence Act 1985 could be used only for the purposes identified in section 63T. The court could not use its inherent jurisdiction to require disclosure which the statute prohibited.
2. Although Part II contained no express equivalent of section 63T, section 22 had to be construed consistently with the statutory scheme. A DNA profile seized from a crime scene under section 19 was, once linked to a known individual, for practical purposes indistinguishable from a Part V profile. The fact that it had been obtained indirectly was not a rational basis for permitting wider use. Parliament could not be taken to have intended an arbitrary or irrational distinction.
3. The true construction of section 22 was therefore that biometric material seized under Part II could not be retained or used for purposes other than criminal law enforcement. Disclosure for an unrelated purpose, including care proceedings, was prohibited. It was irrelevant that the proposed use did not require comparison with the Part V sample obtained from X.
4. Alternatively, section 22 had to be read compatibly with section 3 of the Human Rights Act 1998 and Article 8 of the Convention. Retention and use of DNA data engaged private-life rights. A wider reading would create an arbitrary distinction and would provide insufficient clarity and precision concerning permissible purposes, duration and safeguards. Reading an implied prohibition into section 22, or reading appropriate words into it, did not contradict the essential principles or scope of the legislation. The court relied on S and Marper v UK (2009) 48 EHRR 50, CG v Bulgaria (2008) 47 EHRR 51 and Ghaidan v Godin-Mendoza [2004] UKHL 30.
5. The discretion and perversity issues did not arise because the construction issue disposed of the appeals. McFarlane LJ added that the interpretation was confined to biometric material seized under Part II and did not affect established arrangements for disclosure of other Part II material. Beatson LJ agreed with both judgments.

• Court of Appeal (Civil Division) allowed the appeals and set aside the disclosure order: [2015] EWCA Civ 34.
• High Court of Justice, Family Division ordered disclosure of the disputed DNA profiles in the care proceedings: [2014] EWHC 1999 (Fam).