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Everyone has the right to respect for his private and family life, his home and his correspondence. STA |
2. STA |
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society 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 prot... |
It is now rightly accepted on behalf of both the PSNI and the Secretary of State that article 8(1) is, as it is said, engaged, on the basis that the indefinite retention of a persons DNA profile, fingerprints and photograph interferes with the right to respect for private life recognised by article 8(1). Ratio |
However, it is of course common ground that there is no violation of article 8 if the PSNI can satisfy the court that its policy is in accordance with the law and necessary in a democratic society for one of the reasons identified in article 8(2). Ratio |
On the facts of this case, the questions which arise under article 8(2) are whether the retention policy is justifiable and, in particular, whether it satisfies the principle of proportionality. Ratio |
In this regard it is helpful to recall the four elements identified by Lord Reed in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, [2014] AC 700, para 74. PRE |
Although Lord Reeds judgment was a dissenting judgment, there is no difference in principle between his formulation of the relevant principles and those stated by Lord Sumption for the majority. PRE |
They are (1) whether the objective of the relevant measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the object... |
Lord Reed added that, in essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure. PRE |
He also noted at para 71 that an assessment of proportionality inevitably involves a value judgment at the stage at which a balance is to be struck between the importance of the objective pursued and the value of the right intruded upon. PRE |
These proceedings Ratio |
The appellant sought leave to apply for judicial review of the decision to retain the biometric data and the photograph. RLC |
By an order of Morgan J on 3 April 2009 the applicant was granted leave to apply for judicial review on the grounds set out in paras 9(c) and (d) of the Order 53 statement as follows: (c) The retention of the [data] for an indefinite period of time in the unregulated manner observed by the European court between paras ... |
(d) A conviction for an offence of relatively minor gravity is very much the type of circumstance in which the Committee of Ministers in R(92)(1) gave a provisional view that there was no need for the taking or retention of such samples. RLC |
The European court has been heavily influenced by that document and there is every reason to believe that they would continue to be influenced by that document and those observations in circumstances where they were dealing with the conviction of an individual for a minor offence in circumstances where the samples were... |
The orders sought were: (a) a declaration that the indefinite retention of the data was unlawful and constituted an unjustifiable interference with his right to respect for private life under article 8; and (b) an order of prohibition preventing the respondent from making any use of the relevant data. RLC |
The substantive application was heard by the Divisional Court, which refused the application on 13 November 2012. RLC |
Girvan LJ gave the judgment of the court. RLC |
The Divisional Court was persuaded that the infringement was justified, so that article 8(2) was satisfied. RLC |
The appellant says that it was wrong. RLC |
The answer depends upon a number of matters: namely the correct approach under article 8(2), a consideration of the relevant statutory provisions in Northern Ireland, together with the policy of the PSNI, and an analysis of the cases decided so far, especially by the ECtHR. RLC |
I have considered both the correct approach to proportionality under article 8(2) and the relevant statutory provisions in Northern Ireland, together with the policy of the PSNI. RLC |
The Divisional Court considered in some detail both S and Marper in the House of Lords, reported in [2004] 1 WLR 219, and S and Marper in the ECtHR. RLC |
In that litigation the challenge was to the retention of fingerprints, cellular samples and DNA profiles after proceedings against the individuals had led to acquittal or discontinuance. RLC |
It will be recalled that the majority of the House of Lords, Baroness Hale dissenting, held that there was no infringement of article 8(1) and the House concluded unanimously that the retention could in any event be justified under article 8(2). RLC |
The ECtHR disagreed. RLC |
It held that there was a breach of article 8(1) and that the retention could not be justified as proportionate under article 8(2). RLC |
It was accepted by this court in R (GC) v Commissioner of Police of the Metropolis [2011] UKSC 21; [2011] 1 WLR 1230 that in the light of S and Marper the decision in the House of Lords could no longer be accepted as correct. RLC |
The reasoning of the ECtHR is important because both parties to this appeal rely upon it. Ratio |
The Divisional Court distinguished it on the basis that the court was not concerned with a case of retention after conviction but only with retention after acquittal. Ratio |
At para 30 Girvan LJ quoted these two striking paragraphs from the judgment, paras 119 and 125: 119. Ratio |
the court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales. Ratio |
The material may be retained irrespective of the nature or gravity of the offence for which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken and retained from a person of any age arrested in connection with a recordable offence which includes minor o... |
The retention is not time limited, the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Ratio |
Moreover there exist only limited possibilities for an acquitted individual to have the data removed from the Nationwide Database or the materials destroyed; in particular, there is no provision for independent review of the justification for the retention according to defined criteria including such factors as the ser... |
125. Ratio |
In conclusion the court finds that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences as applied in the case of the present applicants, fails to strike a fair balance between competing public and priv... |
Accordingly, the retention at issue constitutes a disproportionate interference with the applicant's right to respect for private life and cannot be regarded as necessary in a democratic society. Ratio |
This conclusion obviates the need for the court to consider the applicant's criticism regarding the adequacy of certain particular safeguards, such as too broad an access to the personal data concerned and insufficient protection against the misuse or abuse of such data. Ratio |
In para 37 Girvan LJ noted that the Strasbourg analysis in S and Marper proceeded along the usual course of determining whether the interference with the individuals article 8 rights was (a) in accordance with law, (b) pursued a legitimate aim and (c) was necessary in a democratic society. Ratio |
He added that question (c) involved the issue whether the retention was proportionate and struck a fair balance between the competing public and private interests. Ratio |
Girvan LJ noted in para 38 that, having regard to the limited grounds upon which leave was granted, the focus of the appellants case was on the question of necessity and proportionality. Ratio |
In para 39 he correctly noted that there was clearly a statutory power to retain the data and that the focus must be upon the proportionality of indefinite retention. Ratio |
Under Legitimate aim, the ECtHR said at para 100 that it agreed with the Government that the retention of fingerprint and DNA information pursues the legitimate purpose of the detection and, therefore, prevention of crime. Ratio |
It added that, while the original taking of this information pursues the aim of linking a particular person to the particular crime of which he or she is suspected, its retention pursues the broader purpose of assisting in the identification of future offenders. Ratio |
Under the heading Necessary in a democratic society the ECtHR discussed the general principles between paras 101 and 104. Ratio |
In summary it held that an interference will be considered necessary in a democratic society for a legitimate aim if it answers a pressing social need and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons given by the national authorities to justify it are relevant and sufficient. ... |
It is for the national authorities to make the initial assessment subject to review by the ECtHR. Ratio |
A margin of appreciation must be left to the competent national authorities, which varies and depends upon a number of factors. Ratio |
They include the nature of the right in issue, its importance for the individual, the nature of the interference and the object pursued by the interference. Ratio |
Where there is no consensus among member states, either as to the relative importance of the interest at stake or as to how best to protect it, the margin will be wider. Ratio |
In para 103 the ECtHR stressed the importance of the protection of data to a persons enjoyment of his rights under article 8 in some detail by reference, in particular, to Recommendation No R(92)1 of the Committee of Ministers. Ratio |
However it concluded this part of the judgment in para 104 as follows: The interests of the data subjects and the community as a whole in protecting the personal data, including fingerprint and DNA information, may be outweighed by the legitimate interest in the prevention of crime (see article 9 of the Data Protection... |
However, the intrinsically private character of this information calls for the court to exercise careful scrutiny of any state measure authorising its retention and use by the authorities without the consent of the person concerned. Ratio |
I agree with the Divisional Court that the ECtHR was not considering the position of convicted people. Ratio |
At para 40 Girvan LJ said that the ECtHR was at pains to point out that the only issue to be considered was whether the retention of the data obtained from persons who had been suspected but not convicted of certain criminal actions. Ratio |
He referred to para 106 without quoting it. Ratio |
It must be set in its context, which begins with para 105 in the courts consideration of the application of the principles to the facts. Ratio |
Paras 105 and 106 read: 105. Ratio |
The court finds it to be beyond dispute that the fight against crime, and in particular against organised crime and terrorism, which is one of the challenges faced by todays European societies, depends to a great extent on the use of modern scientific techniques of investigation and identification. Ratio |
The techniques of DNA analysis were acknowledged by the Council of Europe more than 15 years ago as offering advantages to the criminal-justice system (see Recommendation No R(92)1 of the Committee of Ministers, paras 43-44 above). Ratio |
Nor is it disputed that the member states have since that time made rapid and marked progress in using DNA information in the determination of innocence or guilt. Ratio |
106. Ratio |
However, while it recognises the importance of such information in the detection of crime, the court must delimit the scope of its examination. Ratio |
The question is not whether the retention of fingerprints, cellular samples and DNA profiles may in general be regarded as justified under the Convention. Ratio |
The only issue to be considered by the court is whether the retention of the fingerprint and DNA data of the applicants, as persons who had been suspected, but not convicted, of certain criminal offences, was justified under article 8 paragraph 2 of the Convention. Ratio |
In the following paragraphs the court nowhere suggests that the principles apply to convicted persons. Ratio |
In para 112 it stresses the importance of carefully balancing the potential benefits of the extensive use of modern scientific techniques, and in particular extensive DNA databases, against important private-life interests. Ratio |
It concludes para 112 by saying that any state claiming a pioneer role in the development of new techniques (in which it plainly included the United Kingdom) bears special responsibility for striking the right balance in this regard. Ratio |
Paragraphs 113 and 114 read as follows: 113. Ratio |
In the present case, the applicants fingerprints and cellular samples were taken and DNA profiles obtained in the context of criminal proceedings brought on suspicion of attempted robbery in the case of the first applicant and harassment of his partner in the case of the second applicant. Ratio |
The data were retained on the basis of legislation allowing for their indefinite retention, despite the acquittal of the former and the discontinuance of the criminal proceedings against the latter. Ratio |
114. Ratio |
The court must consider whether the permanent retention of fingerprint and DNA data of all suspected but unconvicted people is based on relevant and sufficient reasons. Ratio |
Girvan LJ quoted an extract from para 114 (without referring to the number) and italicised the words all suspected but unconvicted people. Ratio |
In my opinion he was correct to do so. Ratio |
They fit with the statement in para 106 quoted above that the only issue to be considered by the court was whether the retention of the fingerprint and DNA data of the applicants, as persons who had been suspected, but not convicted, of certain criminal offences, was justified under article 8(2) the Convention. Ratio |
There is no indication that the Strasbourg court was considering the position of those who had been convicted at all. Ratio |
I agree with Girvan LJs conclusion at para 42 that Strasbourg was not saying that a blanket policy of retaining the data of convicted persons would be unlawful. Ratio |
It stressed in para 125 (quoted above) its conclusion that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences fails to strike a fair balance between competing public and private interests and that the... |
As Girvan LJ put it at the end of para 42, [t]he courts focus was solely and entirely on the issue of unconvicted persons and para 119 of the judgment [also quoted above] must be read in that context. Ratio |
I recognise that it does not follow from the fact that the ECtHR was only considering unconvicted persons that the system in Northern Ireland (and the United Kingdom) is justified under article 8(2). Ratio |
I also recognise that, save for exceptional cases, the policy of retaining DNA profiles from those convicted persons to whom it applies may be described as a blanket policy. Ratio |
However, the ECtHR recognised the importance of the use of DNA material in the solving of crime. Ratio |
It also recognised that, although the rights of the appellant and a person in his position are interfered with by the system in operation in the Northern Ireland and England and Wales (and indeed Scotland), the interference is a low level of interference. Ratio |
I also recognise that a relevant factor to take into account in the balance is the nature of the offence of which the person concerned is convicted. Ratio |
The United Kingdom has chosen recordable offences as the touchstone. Ratio |
Recordable offences include any offences punishable by imprisonment, together with a limited number of non-imprisonable offences. Ratio |
As the expression suggests, the police are obliged to keep records of convictions and offenders in relation to such offences on the Police National Computer. Ratio |
I can see nothing unreasonable in the conclusion that such records ought to ought to include any available DNA profiles. Ratio |
It is of course true that the appellant was only fined 50 and disqualified from driving for a year but driving with excess alcohol is a serious offence and can cause significant injury and damage. Ratio |
It may lead to up to six months imprisonment. Ratio |
In S and Marper the ECtHR was concerned with a scheme that involved the retention of all biometric data, including DNA samples, whereas, for the reasons explained above, the present case does not concern the retention of the sample or samples, but only the profile, which contains much less data. PRE |
S and Marper was also concerned with a scheme which did not discriminate between adults and children whereas the present case is concerned with a scheme which only applies to adults. PRE |
These limitations seem to me to be of real importance. PRE |
It is true that a conviction for driving with excess alcohol will become spent but there is no support in S and Marper for the conclusion that, just because a conviction may become spent, the biometric data of a person who is convicted cannot be kept indefinitely. Ratio |
Reliance was placed on behalf of the appellant upon the reference to spent convictions in Principle 7 of the Council of Europes Committee of Ministers Recommendation No R(87)15, which was adopted on 17 September 1987 and provides: Principle 7 - Length of storage and updating of data 7.1 Measures should be taken so that... |
For this purpose, consideration shall in particular be given to the following criteria: the need to retain data in the light of the conclusion of an inquiry into a particular case; a final judicial decision, in particular an acquittal; rehabilitation; spent convictions; amnesties; the age of the data subject, particula... |
7.2 Rules aimed at fixing storage periods for the different categories of personal data as well as regular checks on their quality should be established in agreement with the supervisory authority or in accordance with domestic law. Ratio |
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