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Whether DNA sample taken for criminal purposes can be used


for paternity test?
X & Anor v Z (Children) & Anor [2015] EWCA Civ 34
read judgment
The Court of Appeal has ruled that it would not be
lawful for DNA originally collected by the police to be
used by a local authority for the purposes of a
paternity test.
Factual and legal background
Xs wife had been found murdered. The police took DNA
from the crime scene. Some of the DNA belonged to Xs
wife and some was found to be Xs. X was tried and
convicted of his wifes murder.
Xs wife had young children and they were taken into the
care of the local authority. During the care proceedings X asserted that he was the biological father of the
children and said he wanted to have contact with them. He refused to take a DNA test to prove his alleged
paternity. The local authority asked the police to make the DNA from the crime scene available so that it could be
used in a paternity test. The police, with the support of the Home Secretary, refused on the grounds that they did
not believe that it would be lawful to do so.
There are two ways in which the police can lawfully collect and use DNA. Part V of the Police and Criminal
Evidence Act 1985 (as amended) gives the police authority to collect and use samples from a person, and Part II
of PACE gives the police authority to collect and use samples from premises.
In S and Marper v UK (2009) 48 EHRR 50the European Court of Human Rights held that Part V of PACE (as
amended) did not adequately protect the right to respect for privacy and family life under Article 8 of the
European Convention of Human Rights. As a consequence, parliament enacted the Protection of Freedoms Act
2012, which restricts the use of DNA collected under Part V of PACE. Crucially, the POFA provides that DNA
collected from a person may not be used for a purpose unconnected with criminal investigations.
Part II of PACE was not mentioned in Marper and the POFA did not amend its wording. The Local Authority
argued that the construction of Part II of PACE therefore allowed DNA collected from premises to be used for
purposes unconnected with criminal investigations such as, in this case, for a paternity test.
The Courts Decision
The Court of Appeal rejected the local authoritys argument. Lord Dyson pointed out that DNA collected
from premises under Part II was generally only of use if it could be linked to a person and therefore it was as
sensitive as DNA collected under Part V. It would be arbitrary and irrational to read the legislation in such a way
that suggested that Parliament wanted such sensitive material to be treated in different ways depending on how it
was collected. Instead, the Court should bear in mind that Parliament passed the Protection of Freedoms Act
2012 in order to remove the incompatibility between English law and the Article 8 ECHR. Consequently, Part II of
PACE should be read as meaning that DNA collected from premises must not be used for purposes unconnected
with criminal investigations.
Lord Dyson went on to say that if there was any doubt about how he had interpreted Part II of PACE, it should be
noted that s.3 of the Human Rights Act 1998 requires primary legislation to be read and given effect in a
way which is compatible with Convention rights. As the collection and retention of a persons DNA clearly
engages the right to a private life under Article 8, and Marper established that using DNA collected from a
person (i.e. under Part V of PACE) for purposes unconnected with criminal investigations was incompatible with
Convention rights, so it followed that using DNA collected from premises (i.e. under Part II of PACE) for purposes
unconnected with criminal investigations would also be incompatible with Convention rights. Consequently, the
Human Rights Act also requires Part II of PACE to be read and given effect as restricting the use of DNA to

purposes connected with criminal investigations.


Comment
At first blush, it might seem obvious that the local authority should be able to use DNA collected by the police in
this way. In the circumstances, how else are they going to be able to resolve the question of whether X is the
childrens father? But this engages important principles of human rights law and specifically the right to respect
for private and family life, which were considered by the ECtHR in Marper. Parliaments response to the finding
against the UK in that case was to legislate to tighten up the use of DNA collected from a person by passing the
Protection of Freedoms Act 2012. As Lord Dyson suggested, it undermine the logic of that statute to assume that
Parliament meant to restrict how the police use DNA collected from a person (i.e. under Part V of PACE) but not
DNA collected from a premises (i.e. under Part II of PACE). It is encouraging that the police and the Home
Secretary considered themselves bound by Marper and the Strasbourg Courts interpretation of Article 8 here,
although one can see from the local authoritys submissions that the case could have gone the other way.
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