The High Court this morning handed down its judgment in the test case of R v A Chief Constable  EWHC 2864 (Admin) challenging operation nutmeg.
Bhatia Best represent a number of individuals challenging the lawfulness of approaches by the police to request DNA samples from ex-offenders decades after their offences were committed.
The Police and Criminal Evidence Act as amended by the Crime and Security Act 2010 gives the police a power and therefore a discretion to ask ex-offenders for ‘non intimate swab samples’ to be checked against DNA samples held by the police and retain the sample for the purposes of crime detection and prevention.
R’s case was brought on two grounds;
1) The Police had acted unlawfully in requiring R to attend a police station within 7 days to provide a ‘non intimate swab sample’ and warning in the absence that he would be liable to arrest and the sample taken forcibly;
2) The request was a disproportionate interference with his right to a private family life (Article 8 ECHR).
The court held that the police had acted unlawfully in requiring R to attend the station to give a sample. The law provides that a requirement leading to arrest and taking of a sample forcibly may only be given by an authorisation from an officer of at least the rank of inspector. The police had in this case ‘failed to comply with [this] statutory pre-condition’.
Further, whilst the court also held that the request for a sample amounted to an interference with R’s Article 8 Human Rights, the request was however a proportionate interference in pursuit of a legitimate aim.
Whilst R’s claim has not been upheld, the judgment is an important decision in this area which emphasises the need for the police to strike a fair balance between the rights of the individual and the legitimate aim of crime prevention. It also emphasises the importance of the police exercising its discretion reasonably by undertaking a proportionality assessment in all cases to inform and justify the decision to request a sample, which should include the opportunity for the individual concerned to make representations.
Please feel free to contact our Public Law Team on 0115 9503231 to discuss the content of this judgment in further detail.