Guest Blog: One year since its birth Operation Nutmeg has been challenged by Ex-prisoner



Operation Nutmeg is the code name for a large-scale operation aiming to ‘collect 12,000 DNA samples from people convicted of serious crimes before 1994’, before DNA swabs were routinely taken, in order to ‘add their DNA profiles to the police DNA database’, which was set up in 1995 containing 6.5 million DNA profiles, in an attempt to solve historic crimes. Forces are operating this national drive via powers given by the Crime and Security Act 2010. ‘By July of this year, 6,204 samples had been taken under the scheme, with 111 being matched to crime scenes.’

An example of Operation Nutmeg in practice can be seen through a case example, referred to as “H”. ‘H is a 74 year old pensioner, who was convicted of an offence of ‘living off immoral earnings’ in 1970. ‘H’, who has not committed any similar offences in the past 42 years, recently received a letter from the police insisting that he attend at a police station within 7 days to give a sample for inclusion on the National DNA database. If he does not he is threatened with being arrested and being forced to give a sample against his will. ‘H’ is distraught and upset by the involvement of the police and the insinuation that unless he co-operates he will be arrested and maybe charged with an offence.’

However, a claimant who has recently brought the legality of Operation Nutmeg to the courts, after being asked by the police to provide a “non-intimate” DNA sample for “speculative checking”, is an ex-prisoner, “R”, who was ‘convicted of manslaughter in 1984’. R claimed that the process was unlawful and disproportionate, that it breached Article 8 of the European Convention on Human Rights, [“ECHR”], to which he wanted damages, and a declaration that the police demand was unlawful.

Article 8 of the ECHR is the ‘Right to Respect for Private and Family Life’. Courtesy of Art.8(1) ‘Everyone has the right to respect for his private and family life, his home and his correspondence’. However, this Article is a “qualified right”, not “absolute” which therefore means that in certain circumstances, your right to respect in the four areas which this Article caters for, i.e. private life, family life, home and correspondence, can be infringed. Art.8(2) demonstrates the circumstances where this right can be infringed, namely “in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” However, the interference/infringement needs to be “in accordance with the law”, “necessary in a democratic society” and must be justified for there to be no breach of Article 8.

But what do these terms actually mean? ‘‘In accordance with the law’ means that there has to be clear legal basis for the interference and that the law should be readily accessible; whilst ‘necessary in a democratic society’ means that there must be a good reason for the interference with the right and the interference must be proportionate which means that it should be no more than is necessary. If there is an alternative, less intrusive, way of achieving the same aim then the alternative measure should be used.’

R’s lawyers argued that in R’s circumstances, though requiring a DNA sample was for the legitimate purpose of fighting crime, due to the purely “speculative” nature of the request for R’s DNA sample, i.e. ‘his DNA profile was wanted for “speculative checking” with 158,191 crime scene profiles’ in itself was a disproportionate interference with his Article 8 rights.

However, in their High Court ruling, though Lord Justice Pitchford and Mr Justice Hickinbottom did find that the initial demand for a DNA sample in March was unlawful because it was made without prior authorisation by a police officer of the rank of inspector or above, contrary to the requirements of the 1984 Police and Criminal Evidence Act, as amended by the 2010 Crime and Security Act; the subsequent demand was lawful. Furthermore, Pitchford LJ held that “The police inspector was fully justified in concluding that the public interest in the detection of crime outweighed the limited interference with the claimant’s private life.” Thus there was found to be no infringement of R’s Article 8 Conventional Right. R is currently deciding whether or not to judicially review the outcome of his case.

Whilst DNA evidence can be used both to identify criminals with incredible accuracy and to clear suspects and exonerate persons mistakenly accused or convicted of crimes, its use in the criminal justice system has sparked many controversial debates and divides people’s opinions. Whilst some see DNA’s use in the criminal justice system as an inventive tool, others see it as a hindrance.  Orrin G. Hatch stated, “Advanced DNA testing improves justness and fairness”, whilst a polarised view came from Gwendolyn Carroll, who stated, “Post-conviction DNA testing, more often than not, provides either inconclusive results or, in many cases, confirms the guilt of the prisoner seeking testing. In addition, DNA testing is costly, time-consuming, and provides an additional administrative burden.”

What are your opinions of DNA’s use in the criminal justice system?

Zehra Deniz





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