Divisional Court holds that a DNA sample may be taken under compulsion from a man convicted of manslaughter 30 years ago even though he is not suspected of any subsequent offence
Dijen Basu acted for the successful Chief Constable in R (R) v A Chief Constable  EWHC 2864 (Admin) (click here to read the judgment). This was the first case concerning Operation Nutmeg, a national police operation to collect the DNA of serious offenders who are not on the National DNA Database. Click here for the related BBC News website article.
On 24th June 2013, the Divisional Court (Pitchford LJ & Hickinbottom J) held that a detective inspector had been entitled to give an authorisation for the claimant’s DNA sample to be taken, and to impose upon him a requirement that he attend a police station in order for the sample to be taken, pursuant to section 63(3B) and paragraph 11 of schedule 2A to the Police and Criminal Evidence Act 1984.
The Court also agreed with the Defendant’s concession that Paragraph 15 of Schedule 2A meant that the requirement to attend a police station could only be imposed after an inspector’s authorisation had been given, contrary to the impression given by ACPO guidance notes on the legislation, which the force had followed and which the Court held was “seriously inaccurate”. An earlier requirement to attend a police station imposed on the claimant was accordingly declared to have been unlawful.
The claimant pointed out that DNA profiling of the other 390 individuals in the relevant police area, convicted of historic serious offences, had only resulted in 2 matches to any offences and had not resulted in any prosecutions but the Court considered that the subsequent inspector’s authorisation was lawful and did not constitute a disproportionate interference with the claimant’s Article 8 right.
The Court also rejected the claimant’s contention, based the decision of the Supreme Court in R (L) v Commissioner of Police of the Metropolis  1 AC 410, that Article 8 required that he be afforded an opportunity to make representations before the inspector considered whether to give an authorisation.
This claim is the first of a number of challenges to the scope and reach of the power to take DNA under compulsion from those convicted of historic offences before DNA sampling was routine. The Court’s decision is relevant to the estimated 11,000 people who were convicted of serious offences in the past and who had not had their DNA taken until Operation Nutmeg. A number have brought claims alleging that they were unlawfully required to attend a police station without an inspector’s authorisation first having been given. After the decision in R (R) v A Chief Constable, challenges to inspectors’ authorisations will fall on less fertile ground.
The claimant is seeking permission to appeal to the Court of Appeal and, until his application (and any appeal) are determined, an interim injunction remains in place restraining police officers from arresting the claimant under these provisions.
Dijen Basu acted for the successful Chief Constable. He is recommended for Police law by Chambers UK 2013 which comments that he “knows his stuff” and is “spot on in his analysis”.