Wood, Re Judicial Review

Factual and Procedural Background

The Appellant was arrested on suspicion of drug offences and charged with cultivating cannabis, possession with intent to supply, and possession of a Class B controlled drug. Following his arrest and initial remand in custody, the Appellant was granted bail. During the investigation, no evidential DNA sample was taken. Subsequently, a police constable, acting on the direction of the Public Prosecution Service, requested the Appellant to provide a non-intimate sample for evidential purposes. The Appellant refused this request. The Appellant then applied for judicial review challenging the constable’s decision to require the non-intimate sample without his consent.

Legal Issues Presented

1. Whether the police have the power under article 63(3A) of the Police and Criminal Evidence (Northern Ireland) Order 1989 to take a non-intimate sample without consent from a person charged with a recordable offence at any time and place.
2. Whether the power to take a non-intimate sample without consent from such a person is subject to the requirement in article 63A(4) that the person be required to attend a police station within one month of charge or notification of insufficiency of a prior sample.
3. The interpretation and relationship between articles 63(3A) and 63A, including the scope and limitations of the powers granted therein.
4. The compatibility of the powers to take non-intimate samples without consent with the requirements of legal certainty and the protection of qualified rights under the European Convention on Human Rights.

Arguments of the Parties

Appellant's Arguments

• The power to take a non-intimate sample without consent under article 63(3A) must be exercised in accordance with article 63A(4), which requires a constable to serve a requirement to attend a police station within one month of charge or notification of insufficiency of a prior sample.
• The police do not have power to take such a sample at any time or place outside the police station or custodial establishment.
• The taking of samples from persons in custodial establishments should be subject to authorisation under relevant prison legislation.

Respondent's Arguments

• The power to take a non-intimate sample under article 63(3A) is not limited by article 63A(4) and may be exercised at any time and place while the person remains charged or informed they will be reported for a recordable offence.
• This power includes taking samples in public places and, if necessary, using reasonable force under article 88.
• Articles 63(3A) and 63A contain separate powers: article 63(3A) grants the power to take the sample, while article 63A(4) grants the power to require attendance at a police station, but the latter does not restrict the former.
• Reference to provisions concerning notice and place in articles 63(8B) and 63(9) imply that samples can be taken outside police stations.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the statutory framework governing the taking of non-intimate samples, focusing on articles 63 and 63A of the Police and Criminal Evidence (Northern Ireland) Order 1989. It identified four distinct categories where non-intimate samples may be taken without consent, with the present case concerning the category of a person charged with a recordable offence but not in police detention or custody.

The Court rejected the respondent’s interpretation that the power under article 63(3A) is unfettered by time or place restrictions. Instead, the Court found that article 63A(4) imposes a supplementary but essential procedural safeguard requiring a constable to require attendance at a police station within one month of charge or notification of insufficiency of a prior sample. This requirement ensures that the taking of samples occurs in a controlled environment and within a defined timeframe, thereby preventing arbitrary exercise of power.

The Court emphasized the necessity of strict interpretation of powers that interfere with qualified rights such as liberty and privacy, in line with the European Convention on Human Rights. It held that the power to take non-intimate samples without consent must provide legal certainty and avoid arbitrariness. The respondent’s argument that samples could be taken at any time and place, including public places with reasonable force, was found to lack statutory support and to be inconsistent with the principles of legal certainty and proportionality.

Consequently, the Court concluded that the police power to take a non-intimate sample without consent under article 63(3A) is exercisable only through the procedural mechanism in article 63A(4), which includes the time limit and requirement to attend a police station. In the present case, the time limit had expired when the constable requested the sample, rendering the decision unlawful.

Holding and Implications

The Court held that the power to take a non-intimate sample without consent under article 63(3A) of the Police and Criminal Evidence (Northern Ireland) Order 1989 must be exercised by requiring the person charged with a recordable offence to attend a police station within one month of the charge or notification of insufficiency of a prior sample, as prescribed by article 63A(4).

The decision of the constable to require the Appellant to provide a non-intimate sample outside the prescribed time limit and without requiring attendance at a police station was unlawful.

This ruling clarifies the statutory limits on police powers to obtain non-intimate samples without consent, reinforcing procedural safeguards designed to protect individual rights. The decision does not establish new precedent beyond the interpretation of the existing statutory provisions but confirms the necessity of compliance with time limits and procedural requirements to ensure legal certainty and proportionality in the exercise of such powers.