In a reference under the Judicial Committee Act 1833 s.4, the board was required to advise Her Majesty as to who was entitled to be entered onto the Official Roll of the Baronetage as the Baronet of Pringle of Stichill and whether DNA evidence was admissible to determine the question.
The baronetcy, which was governed by Scots law, was granted in 1683 to Robert Pringle and the “male heirs of his body”. There was evidence that in the late twentieth century the younger brother of the 9th baronet told two family members that he believed the baronet to be illegitimate. The title passed without open dispute until the latter years of the 10th baronet, whose son was the presumed heir. The son’s cousin, who, it was agreed, knew nothing of any suggestion of illegitimacy, began a project to trace the line of the clan chief who died without an heir in 1738. Family members, including the 10th baronet provided mouth swabs for DNA testing. The tests showed that the 10th baronet had a separate lineage to that of the other family members whose Y-chromosome DNA haplotype test results were all identical. The cousin said he would act to restore the rightful lineage. After the 10th baronet’s death, his son and the cousin registered their claims to inherit the baronetcy. Expert interpretation of the DNA test results concluded that the 10th baronet and the core group of family members could not have had a common male ancestor in the previous 1,000 years. The cousin asserted that the 9th baronet had not been the son of the 8th baronet, whose second son, the cousin’s father, had been the true heir.
The son submitted that, although he did not dispute the DNA test results, the evidence should not be admitted as (1) under the Scots law of prescription the cousin’s claim had been extinguished by the passage of time; (2) the claim was barred by the defence of mora, taciturnity and acquiescence; (3) the cousin had breached confidentiality or misused the DNA information to further his claim; (4) in so doing he had been in breach of the Data Protection Act 1998 s.4(4).
HELD: (1) The central issue was not one of legitimacy but of paternity, which was a question of fact, and unless the DNA evidence fell to be excluded on the basis of prescription or another ground of delay, it was of sufficient cogency, namely reaching the criminal standard of proof, to rebut an evidential presumption of legitimacy under either Scots or English law (see para.25 of judgment). The Scots common law presumption of paternity had required proof beyond reasonable doubt to rebut it, but proof on a balance of probabilities had become enough by virtue of the Law Reform (Parent and Child) (Scotland) Act 1986 s.5(4) (paras 30-31). The pre-1973 law of prescription did not protect the 9th or 10th baronets or their heirs so the claim of the cousin’s father had not been extinguished before the Prescription and Limitation (Scotland) Act 1973. Under sch.3 para(h) of the 1973 Act the right to succeed to a title of honour survived the passage of time and thus the Act was not a bar to the cousin’s claim or a basis for exclusion of the DNA evidence (paras 43-58, 61).
(2) The claim was not barred by the defence of mora, taciturnity and acquiescence. The bar was personal and the inaction of the cousin’s father, despite his belief that the 9th baronet was illegitimate, was irrelevant to the claim of the cousin, who in any case had been unaware of the issue until the DNA results (paras 62-64).
(3) There was no breach of confidentiality or misuse of information. The 10th baronet’s claim to be clan chief depended on his status as senior member of the family branch entitled to the baronetcy. He was aware that he was contributing to a genealogical record and had consented (paras 67-68).
(4) Although DNA was sensitive personal data under s.2 of the 1998 Act so that explicit consent was required under sch2 and sch3, the cousin could not have stated a purpose which he did not have at the time, although he did have it later. However, even if he had acted in breach of statutory duty it was not enough to exclude the DNA evidence. That would be disproportionate, as it was central to the issue and it was not unfair to admit it, Duke of Argyll v Duchess of Argyll (No.3) 1963 S.L.T. (Notes) 42, Martin v McGuiness 2003 S.L.T. 1424 applied.
(5) The evidential presumption that the 9th baronet was the legitimate son of the 8th was capable of rebuttal by evidence showing on the balance of probabilities that he was not. The DNA evidence demonstrated that to a high degree of probability. The board concluded that the claimant cousin was the grandson of the 8th baronet and thus the heir male of the 1st baronet (paras 81-82).
(6) DNA evidence was capable of reopening family succession many generations into the past. Whether legal measures were needed to protect past property transactions, the rights of the perceived beneficiary of a trust of property and the long-established expectations of a family were questions for others to consider (para.85).