London Borough of Lewisham v D & Ors [2010] EWHC 1239 (Fam)

[2010] EWHC 1239 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 29/03/2010

Before

Stephen Cobb QC

sitting as a Deputy High Court Judge

Between

London Borough of LewishamApplicant

D and othersRespondents

Ms Jane E Gill for Local Authority

Mr. Dorian Day for First Respondent

Mr. Neil Bullock for Fifth Respondent

Ms Samantha King for Seventh to Tenth Respondents (children by their

Children’s Guardian)

Mr. Tom Little for Commissioner of the Police of the Metropolis

Ms Samantha Broadfoot for Secretary of State for the Home Department

Hearing Hearing dates: 23 rd March 2010

Judgment

Introduction

[1]This Judgment should be read alongside the Judgment which I delivered in these proceedings on the 17th February 2010.

[2]The current application was foreshadowed in the earlier proceedings, and referred to in paragraph 21(b) of that earlier Judgment. The Judgment delivered on the 17th February 2010 was at the conclusion of what I described as the ‘first stage’ of a disclosure process between criminal and family processes; this judgment is delivered at the conclusion of the ‘second stage’.

[3]The background history to the application is summarised in paragraph 7 of the earlier Judgment, and I do not propose to rehearse it here, save to say that I remain concerned generally in these proceedings with the welfare of four children(a) R

(b) A

(d) J

[4]The application before me now is that dated 23rd February 2010; by that application the Local Authority seeks the following relief namely: …disclosure from the Commissioner of Police of the Metropolis of the result of the matching of the DNA of the children R, A, B and J with that of the DNA of D.

[5]For the purposes of the application, the parties are the same (and save, in one respect, are represented by the same counsel); additionally, for this hearing, I have had the benefit of submissions from the Secretary of State for the Home Department, whom I had cause to be served with the position statements and application when I was informed in February that this application was likely to be made.

[6]The Application is opposed by the Commissioner of Police of the Metropolis, by the Secretary of State for the Home Department, and by the First and Fifth Respondents. The Children’s Guardian reluctantly felt obliged to oppose the Local Authority’s application as drafted, though in submissions advocated an alternative course which would have led to the disclosure of other potentially relevant material. I turn to this later in this judgment.

The law

[7]The power of the Commissioner of Police of the Metropolis to retain samples of DNA taken from arrested purposes is to be found within the provisions of PACE 1984. At paragraph 26 of the earlier Judgment I set out the full terms of section 64(1A) of the Police and Criminal Evidence Act 1984. For ease of reference, I repeat it here. ‘Where—(a) Fingerprints … or samples are taken from a person in connection with the investigation of an offence, and

(b) subsection (3) below does not require them to be destroyed, the fingerprints … or samples may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution…’

[8]It is also helpful for the purposes of this judgment, that I should set out here in full the provisions of section 64(1B) of PACE 1984: “In subsection (1A) above –(a) the reference to using a fingerprint … includes a reference to allowing any check to be made against it under section 63A(1) or (1C) above and to disclosing it to any person;

(b) the reference to using a sample includes a reference to allowing any check to be made under section 63A(1) or (1C) above against it or against information derived from it and to disclosing it or any such information to any person.

(c) The reference to crime includes a reference to any conduct which i) Constitutes one or more criminal offences … ii) Is, or corresponds to, any conduct which, if it all took place in any one part of the United Kingdome would constitute one or more criminal offences; And

(d) the references to an investigation and to a prosecution include references, respectively, to any investigation outside the United Kingdome of any crime or suspected crime and to a prosecution brought in respect of any crime in a country or territory outside the United Kingdom.” i) Constitutes one or more criminal offences … ii) Is, or corresponds to, any conduct which, if it all took place in any one part of the United Kingdome would constitute one or more criminal offences; And

[my emphasis in each instance]

[9]Section 64(3) provides “If –(a) the fingerprints… or samples are taken from a person in connection with the investigation of an offence; and

(b) that person is not suspected of having committed the offence, they must, except as provided in the following provisions of this section, be destroyed as soon as they have fulfilled the purpose for which they were taken.”

[10]Later in this judgment I refer to section 63A(1) so I set this out at this stage thus:

“(1) Where a person has been arrested on suspicion of being involved in a recordable offence or has been charged with such an offence or has been informed that he will be reported for such an offence, fingerprints … or samples or the information derived from samples taken under any power conferred by this Part of this Act from the person may be checked against – (a) other fingerprints … or samples to which the person seeking to check has access and which are held by or on behalf of any one or more relevant law-enforcement authorities or which are held in connection with or as a result of an investigation of an offence (b) information derived from other samples if the information is contained in records to which the person seeking to check has access and which are held as mentioned in (a) above.” (a) other fingerprints … or samples to which the person seeking to check has access and which are held by or on behalf of any one or more relevant law-enforcement authorities or which are held in connection with or as a result of an investigation of an offence (b) information derived from other samples if the information is contained in records to which the person seeking to check has access and which are held as mentioned in (a) above.”

[11]Some of these statutory provisions have already been considered by this Court in this case on two previous occasions in this case: by Macur J. on 20th January 2010 (see para.19 of my earlier judgment), and by me on 17th February 2010. At the hearing before Macur J. the parties had in fact formally agreed that – pursuant to the provisions of section 64(1A) – the Court could not direct the Commissioner of Police of the Metropolis to disclose or release any sample of the DNA taken from the First Respondent for the purposes of comparing it with the DNA taken by the children; if there was any doubt about their approach at that time, Ryder J in The London Borough of Lambeth v S C V J & others

[2006] EWHC 326 (Fam)

[2007] 1 FLR 152

, (the “Lambeth case”) laid such doubt to rest.

[12]The Local Authority’s case on the present application is set out in a Skeleton Argument, and has been advanced orally by Ms Gill at the hearing. It can be summarised in this way:(a) The Local Authority does not seek disclosure of the First Respondent’s DNA sample itself, rather it seeks the results of the analysis and/or the matching report following the comparison of the DNA samples of the First Respondent and the children;

(b) The Local Authority wishes to investigate the issue of familial relationships in these proceedings; it is important to their care planning. If the First Respondent has been involved in child trafficking this would have such serious child protection implications, and this issue therefore needs to be “investigated” by the Local Authority in the context of its proceedings brought under section 31 of the Children Act 1989;

(c) Disclosure of the ‘DNA matching’ report (it was even suggested even the DNA sample of the First Respondent itself) does not offend against section 64(1A) of PACE 1984 as the local authority need (and have a statutory duty) to investigate the alleged ‘offence’ of child trafficking for the purposes of their proceedings; it is argued that it matters not that the Local Authority is not a prosecuting body: it is further said that “the possibility that the First Respondent has committed a serious crime in relation to the children in the Local Authority’s care is a matter which has to be properly looked into and “investigated” by the Local Authority”;

(d) The Lambeth case can be distinguished on the basis that in that case the investigations in to serious crime had concluded, and the sole issue was paternity; here the investigations have not concluded; and generally:

(e) Barriers should not be erected between different agencies in the justice system;

(f) All evidence which has been lawfully obtained should be made available to the Local Authority and to the Court;

(g) It is in the best interests of the children that their parentage is established;

(h) Without this critical piece of evidence, the Local Authority will be in ignorance of one highly material factor which would carry weight in their recommendations and final care plan.

[13]As indicated above, all other parties oppose the application. The First and Fifth Respondent spoke with one voice in arguing that such disclosure would be “unlawful”. The Children’s Guardian realistically recognises that the Lambeth decision creates “clear difficulties” for the Local Authority in its application for disclosure of the DNA sample “or the profile derived from it by the police”. The Children’s Guardian conceded that the purpose to which the comparison test would be put would indeed be caught by section 64(1A) PACE 1984. The Children’s Guardian invited consideration of the argument that the Court might nonetheless be empowered to direct disclosure of the ‘matching’ information held by the police into the care proceedings since this was ancillary to the primary purpose for which the sample was being kept and lawfully used by the police – essentially, it was argued that “the benefits to the care proceedings would be a by-product of the predominant purpose”.

[14]Specifically, I have been asked by the Children’s Guardian to consider the phrase “information derived from” in section 64(1B)(b) PACE 1984 and to determine as a matter of general application the point at which information becomes sufficiently ‘distant’ from the sample that it no longer ‘derives from’ the sample. Ms. King’s submissions conclude with the proposal that I consider disclosure of “all or some of the following information on the basis that it does not constitute an unlawful use of information:(a) the transcript of any interview conducted in the light of the comparison report;

(b) a statement as to whether the police will be referring any matters to the CPS for a decision to prosecute;

(c) a statement as to whether any decision has been made by the CPS as to any prosecution in respect of any of the children and, if a prosecution is intended, what the basis for the decision is;

(d) any prosecution case summary;

(e) whether any or all of the children on the basis of the comparison report have identifiable/known parents?”

[15]It was readily (and rightly, in my judgment) acknowledged by all parties during the hearing, including the Children’s Guardian herself, that the information contained in (e) above would be too proximate to the sample itself to escape the provisions of section 64(1B)(b).

[16]The Commissioner of Police of the Metropolis opposed the application; he contended that any results of any matching exercise was or would be caught by the definition of ‘information deriving’ from a sample (a phrase which he contended should be narrowly rather than broadly defined), and that the purpose to which the Local Authority wished to put the sample was not properly described as “the investigation of an offence”.

[17]The Secretary of State for the Home Department also opposed the application contending that the statute prohibits the disclosure of the information sought.

Discussion

[18]DNA is the chemical which is found in virtually every cell in the body and which carries genetic information from one generation to the next. The genetic information carried in DNA is in the form of a code or language which, when translated, determines our physical characteristics and directs all the chemical processes in the body. Except for identical twins, each person's DNA is unique. Half of the DNA is inherited from our father and the other half from our mother. DNA can be extracted from any cells that contain a structure called the nucleus. This includes blood, semen, saliva or hair samples.

[19]The value of DNA as a scientific tool for investigating crime is immeasurable; the value of DNA as a scientific tool for establishing parentage is no less significant. It is the potency of the information contained within the DNA which causes the policy-makers, and the courts, to exercise considerable caution when legislating for its use.

[20]In this context, I turn first to consider whether a report of a DNA ‘match’ would represent “Information derived from…” a sample (section 64(1B)(b)). The statutory phrase “using a sample” explicitly includes “allowing any check to be made … against it or against information derived from it.” (ibid.)

[21]Because of the sensitive nature of samples, and the information deriving from them (see S & Marper v UK (Application nos. 30562/04 and 30566/04) E.Ct.H.R Judgment 4.12.08 (Grand Chamber)) samples cannot be used save for very limited purposes.

[22]It is clear, in my judgment, and having specific regard to the statutory language, that any report prepared as a consequence of the DNA matching exercise (and/or the record of the results of the comparative analysis of the DNA), would indeed be caught by the provisions of Section 64(1B)(b).

[23]The exercise which the police have undertaken in this case is the exercise permitted under section 63A(1) (above), that is to say a comparison of the sample derived from “other samples” to which the police have access (the children’s DNA – the disclosure of which I had ordered), and the sample of the person arrested on suspicion of being involved in a recordable offence (the First Respondent). The result of that exercise is in my judgment “information derived from the sample” because it arises directly from the samples themselves.

[24]Such a conclusion is entirely consistent with the decision of Ryder J. in the Lambeth case.

[25]That might have disposed of this question had Ms King not raised questions about other evidence which may (or may not) contain “information deriving” from the sample. I discussed with Counsel at the hearing whether it was possible or desirable to seek to define a test which would assist in resolving when “information” does derive from a sample and when “information” ceases to derive from a sample. Having heard argument, I resolve that it would be unhelpful, indeed it would be inappropriate, for me to attempt to place a gloss on the statutory language. In my judgment, each piece of information deriving from a sample in each case must be considered on its own particular facts.

[26]I am influenced in reaching this conclusion by the emphasis laid by the House of Lords in R v Chief Constable of Yorkshire Police ex parte LS (by his mother litigation friend); R v Chief Constable of Yorkshire Police ex parte Marper

[2004] 1 WLR 2196

on the strict construction which must be placed on the provisions of PACE 1984, and the limited use to which the DNA can properly be put.

[27]I therefore turned to consider Ms King’s documents listed in paragraph 14(a) to (d) above, to consider whether these documents would also be caught by the statutory language. I conclude as follows.(a) I understand that the First Respondent has not yet been re-interviewed as a consequence of the information which the Police hold, and the issue should probably be considered if/when she is. It seems to me that if the First Respondent is asked about the conclusions of a DNA matching report, then the questions posed of the First Respondent in any such interview would be likely to fall within the definition of “information derived from…” the sample; her answers to those questions may not. I had considered whether any interview should or could be redacted to remove the questions leaving only the answers; this would be likely to make little sense to the reader, and be of limited value to anyone involved in the family proceedings;

(b) The police have agreed to provide a statement to the Local Authority when a decision has been reached as to whether they will be referring any matters to the CPS for a decision to prosecute; this information in any event this does not fall within the definition of “information derived from…” the sample;

(c) I did not feel that I could make any order which would have the effect of binding the Crown Prosecution Service (which is not in fact represented before me); should there be a decision to prosecute, then it may be necessary to re-visit this;

(d) The information contained within the prosecution case summary may well “derive” from the DNA sample and the matching report; however, the police are some way off this point. In the event that there is to be a prosecution of the First Respondent which is based in part on the comparison of the DNA samples, the Local Authority may well be able to obtain the information relevant to the match of DNA in any event given that the criminal process is conducted in public. In any event, as I say, this stage is not imminent – and it seemed better (all agreed) that this issue should not be adjudicated upon at this stage.

[28]In all the circumstances, I take the view that the information requested by the Local Authority does fall within the definition of “information derived from the sample” (section 64(1B)(b)) and should not be disclosed except for one of the specified purposes.

[29]I turn next to consider whether the Local Authority can bring themselves within one of the specified purposes. They contend that they are “investigating an offence” within the meaning of the 1984 Act.

[30]My clear view is that the Local Authority is not involved in ‘investigating an offence’ within the meaning of section 64.

[31]It is not at all uncommon in the sphere of public law proceedings for Local Authorities and police to be investigating the same allegations simultaneously; those allegations (if proved) may constitute criminal conduct; the same allegations may give rise to the risk of harm to children. The functions of the police and the Local Authority in investigating are, however, quite different.

[32]It is clear to me that the provisions of PACE 1984 are directed to those who are specifically charged with investigating of criminal offences, with a view to bringing them to justice, and are not directed to Local Authorities conducting their child protection responsibilities.

[33]I so conclude for the following reasons.

[34]First the Police and Criminal Evidence Act 1984 is directed to the police and its activity. In this respect it is relevant to consider the long title of the Police and Criminal Evidence Act 1984; it reads:

“An Act to make further provision in relation to the powers and duties of the police, persons in police detention, criminal evidence, police discipline and complaints against the police; to provide for arrangements for obtaining the views of the community on policing and for a rank of deputy chief constable; to amend the law relating to the Police Federations and Police Forces and Police Cadets in Scotland; and for connected purposes”

[emphasis added]

[35]The Local Authority has no power to institute a prosecution – either under section 47 of the CA 1989, under section 37CA 1989 or otherwise, and has no statutory responsibility for collating ‘criminal evidence’.

[36]Secondly, and in any event, I believe that it is appropriate to read section 64(1A) as describing a progression along a continuum of investigating of crime and bringing criminals to justice: namely prevention, detection, investigation and prosecution. ‘Prevention’, ‘detection’ and ‘prosecution’ of crime are not functions of the Local Authority; it is therefore not appropriate to isolate ‘investigation’ and treat this separately.

[37]Thirdly, and to set the issue in the context of Local Authority duties, as Baroness Hale said in Re B (Care Proceedings: Standard of Proof)

[2008] UKHL 35

[2008] 2 FLR 141

, at para.69:

“care proceedings are … not there to punish or to deter anyone. The consequences of breaking a care order are not penal. Care proceedings are there to protect a child from harm.”

[38]Finally, the Local Authority itself has advanced its case not on the basis that it wishes (or needs) to investigate an offence per se, but because it wishes to formulate its care plan for the children based on the most reliable information about the identity of the children and their parentage.

[39]In the circumstances, I find that the phrase “the investigation of an offence” does not apply to the actions of a Local Authority undertaking its child care responsibilities in the context of public law proceedings.

Conclusion

[40]For the reasons set out herein, I dismiss the Local Authority’s application. I would like to add three further points.

[41]First, DNA retention and its uses remains a sensitive issue, with a significant minority of the public regarding the retention and use of DNA samples and profiles even for the purposes connected with investigations into serious criminal offences as being at the margins of the state’s legitimate functions. The National DNA database is nonetheless an essential tool in the fight against crime. Part of the response to public concerns about the database is to ensure that it is kept confidential and that it is seen to operate in the least invasive manner possible; this involves both ensuring that the data is retained securely and that there are strictly observed limits as to who may use the data and for what purposes. In reaching the conclusions I have in this case, I consider that I have observed faithfully the importance of the preservation of this sensitive data.

[42]Secondly, I would like to have been able to express stronger support in this Judgment for the Local Authority’s application; the work of the social services (and the Court) is likely to be frustrated by the dismissal of their application. The Local Authority may have to wait weeks or months before some step is taken in the criminal process which yields more information.

[43]Thirdly, I am of the view that this decision is not in fact helpful to the children. I cannot treat the children’s welfare as paramount in reaching the decision in this case; it is not in fact even a factor which can affect my decision given that I have limited (if any) discretionary latitude in reaching the conclusions I have. As I said at para.58 of my earlier judgment, the right to know one’s parentage and identity is a fundamental part of private life.

[44]In 1970, in S (An Infant, by her Guardian ad Litem the Official Solicitor to the Supreme Court) v S; W v Official Solicitor (Acting as Guardian ad Litem for a Male Infant Named PHW)

[1972] AC 24

,(1970) FLR Rep 619, Lord Hodson put it this way: The interests of justice in the abstract are best served by the ascertainment of the truth and their must be few cases where the interests of children can be shown to be best served by the suppression of truth. Scientific evidence of blood groups has been available since the early part of this century and the progress of serology has been so rapid that in many cases certainty or near certainty can be reached in the ascertainment of paternity. Why should the risk be taken of a judicial decision being made which is factually wrong and may later be demonstrated to be wrong?

[45]This was cited by Thorpe LJ in the case of Re H & A (Paternity: Blood Tests)

[2002] 1 FLR 1145

at para.29 when he referred to the important points of principle as follows:

“first, that the interests of justice are best served by the ascertainment of the truth and secondly, that the court should be furnished with the best available science and not confined to such unsatisfactory alternatives as presumptions and inferences. It seems to me obvious that all that Lord Hodson expressed in the passage [above]… applies with even greater force and logic in a later era. First, there have been huge scientific advances with the arrival of DNA testing. Scientists no longer require blood, thus removing what for some is the unbearable process of its extraction. Of even greater importance is the abandonment of the legal concept of legitimacy achieved by the Family Law Reform Act 1987”

[38]At this stage, the children and the Local Authority are not going to be able to further their search for the truth about parentage by reference to the DNA results. It may be that this information will in due course be yielded if the police take steps which place the information in the public domain. Time will tell. SCQC