In accordance with section 1 (1) (b) of the Act our response is
provided below;
'Cold case' sex attacks are under review by the Cheshire
Constabulary. There have been a number of apparently sexually
motivated murders dating back at least 40 years. There have also
been a number of undetected rapes dating back some 8 years. In all
of these cases and certainly with the more recent cases, there is a
possibility that the offender may be traced.
In respect of that part of your request relating to the
obtaining & loading of DNA, I have carefully considered your
request and I am not obliged to release the information to you.
This letter serves as a Refusal Notice under Section 17 of the
Freedom of Information Act 2000 (the Act).
Section 17(1) of the Act provides:
(1) A public authority which, in relation to any request for
information, is to any extent relying on a claim that any provision
in part II relating to the duty to confirm or deny is relevant to
the request or on a claim that information is exempt information
must, within the time for complying with section 1(1), give the
applicant a notice which-
(a) states the fact,
(b) specifies the exemption in question, and
(c) states (if that would not otherwise be apparent) why the
exemption applies.
In accordance with the Act, this letter represents a Refusal
Notice for that particular part of your request , the Cheshire
Constabulary can neither confirm nor deny that it holds the
information you requested as the duty in S1 (1 )(a) of the Freedom
of Information Act 2000 does not apply, by virtue of the following
exemptions:
Section 30(2) Criminal Investigations
Section 30 (Investigations and proceedings conducted by public
authorities) of the Act states
(3) The duty to confirm or deny does not arise in relation to
information which is (or if it were held by the public authority
would be) exempt information by virtue of subsection (1) or
(2).
This is a qualified exemption for which I am required to conduct
a public interest test.
Factors favouring confirming or denying that information is held
for Section 30
Confirmation or denial that any information exists in relation
to the obtaining of evidence would enlighten members of the public
as to the success or otherwise of the investigation techniques and
the use of certain types of evidence, in this case DNA This may go
some way to promoting awareness and accountability where it relates
to the efficiency of the Constabulary and in respect of expenditure
of public funds.
Factors against confirming or denying that information is held
for Section 30
The existence or otherwise of DNA evidence could be, and in many
cases certainly is, a critical factor in the investigation process.
To confirm that we have obtained such evidence or to confirm that
we don't hold such evidence would do nothing to aid the
investigation but could inform the offender(s) of the liklehood or
otherwise of being caught. For example the rape and murder of a
women where no DNA evidence was obtained might make the offender
think that there is less likelihood of being traced and may incite
further crime.
To release this information may adversely affect public safety
if the criminal fraternity are provided with a tactical advantage
over the Police. As outlined previously, this information, linked
with related subject matter, begins to assist those with illegal
intent.
Balance test for neither confirming nor denying that the
information exists
Police forces would never disclose information that would put
people at risk or compromise law enforcement. By confirming or
denying whether the requested information is held in this case
would mean that criminal investigations would be less effective and
the small benefit in increased public awareness would not be
adequate compensation for such an impact on society.
We would draw your attention to Case FS50078588 – Guardian
Newspaper v ICO and Avon and Somerset police (Jeremy Thorpe). It
was established in this case that the disclosure of information
particularly where Sec 30 is engaged, need only be for a tangible
community benefit and the public interest is not defined by matters
that the public would simply just find interesting.
It is therefore our opinion that the balance lies in favour of
neither confirming nor denying that the information exists.
In formulating our response we fully accept that the
circumstances will vary considerably with each Police Force. The
release of information in relation to an investigation, whether it
be DNA success or otherwise, has to be carefully considered and may
only be released where there in no likelihood of prejudice to the
investigation which is a judgement call for each investigating
officer.