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As I see it, Principle 7 gives some support for the proposition that the fact that a conviction may become spent is a potentially relevant but by no means decisive factor in considering where the balance lies. Ratio |
Indeed it was argued before us that account should be taken of the fact that Mr Gaughrans conviction had been spent in accordance with the Rehabilitation of Offenders (Northern Ireland) Order. Ratio |
The Secretary of State submitted in response that the Order had no relevance, because it was concerned only with the use of past criminal convictions in legal proceedings. Ratio |
In my opinion it is unnecessary to resolve this question. Ratio |
It is not material to the application of article 8, unless it can be said that the retention of the material after the conviction has been spent is not in accordance with domestic law. Ratio |
That has not been argued and would in any event be an unpromising argument. Ratio |
The Rehabilitation of Offenders Order is not concerned with the retention of information about convicted persons, but only with the disclosure of the convictions themselves. Ratio |
It is right to add, first, that we are hearing an appeal from the Divisional Court which decided this case before the conviction had been spent, and secondly that, when it comes into force, the 2013 Act will provide in terms that the right to retain information will not be affected by the fact that any conviction has b... |
Taking account of all relevant factors I would hold that the balance struck by the Northern Irish authorities, and indeed in England and Wales, is proportionate and justified. Ratio |
It is within the margin of appreciation which the ECtHR accepts is an important factor. Ratio |
There is in my opinion nothing in the Strasbourg jurisprudence which leads to a different conclusion. Ratio |
Before us, as before the Divisional Court, the appellant relied upon cases such as Van der Velden v The Netherlands 29514/04 and W v The Netherlands 20689/08, [2009] ECHR 277. Ratio |
In those cases, the complaints were held to be inadmissible. Ratio |
They show that there are many factors which are potentially relevant to the issue of proportionality. Ratio |
Under Dutch law DNA profiles may be retained for 30 years where the relevant offence carries a sentence of six years or more and 20 years where it carries a sentence of less than six years. Ratio |
As it seems to me, it does not follow from the fact that in those cases time limits were held to be proportionate that the system in a member state in which there are no time limits must be disproportionate. Ratio |
It is simply one of the factors to take into account. Ratio |
As I see it, the benefits to the public of retaining the DNA profiles of those who are convicted are potentially very considerable and outweigh the infringement of the right of the person concerned under article 8. Ratio |
I would accept the submission made on behalf of the Secretary of State that the retention of the biometric data contributes to law enforcement and the investigation of offences in relation to both future and historic offences. Ratio |
The Secretary of State puts it thus in para 22 of her case. Ratio |
(1) Where a convicted person subsequently commits another offence in relation to which a crime scene profile or fingerprints is or are obtained, the fact that there is a record of his or her DNA profile or fingerprints will assist in identifying him or her as a suspect. Ratio |
(2) Of particular relevance to DNA profiles, where a convicted person has in the past committed a crime that remains unsolved, but a subsequent cold case review later produces a crime scene profile, the fact that there is a record of his or her DNA profile will assist in identifying him or her. Ratio |
A number of examples were given by the Secretary of State which it is not necessary to set out in detail here. Ratio |
It is also of some note that a DNA profile may establish that the person concerned did not commit a particular offence. Ratio |
This is a factor which was taken into account in both Van der Velden and W. In Van der Velden the ECtHR said at p 9: Secondly, it is to be noted that while the interference at issue was relatively slight, the applicant may also reap a certain benefit from the inclusion of his DNA profile in the national database in tha... |
In W the ECtHR said that it had no cause to arrive at a different conclusion from the one it had reached in earlier cases including Van der Velden and S and Marper, Where it considered that the compilation and retention of a DNA profile served the legitimate aims of the prevention of crime and the protection of the rig... |
The ECtHR added: In its Van der Velden decision the court already pointed to the substantial contribution which DNA records have made to law enforcement in recent years, and noted that while the interference at issue was relatively slight, the applicant might also reap a certain benefit from the inclusion of his DNA pr... |
The court finds that these considerations apply equally in the present case, where the person whose DNA profile is to be compiled and stored in the database is a minor. Ratio |
In S and Marper the ECtHR, when considering the margin of appreciation in the case of those who were acquitted, placed some reliance upon the fact that the United Kingdom was alone or almost alone in retaining biometric data in such cases. Ratio |
There is a much broader range of approaches in the case of those who have been convicted. Ratio |
The Secretary of State produced an annex setting out a summary of inclusions and removal criteria in other jurisdictions. Ratio |
It is attached to this judgment as Annex B. It shows that in such cases many countries retain biometric data for very long periods. Ratio |
In addition to England and Wales and Northern Ireland, Ireland and Scotland are I think the only jurisdictions which provide for indefinite retention. Ratio |
However, there are several states which provide for retention until death. Ratio |
They are Austria: five years after death or 80 years of age; Denmark: two years after death or at 80 years of age; Estonia: ten years after death; Finland: ten years after death; Lithuania: 100 years after inclusion or ten years after death; Luxembourg: ten years after death; The Netherlands: as stated above and 80 yea... |
It seems to me that in the context of a persons rights under article 8 there is little, if any, difference between retention for an indefinite period and retention until death or effectively until death. Ratio |
Annex B shows that there are other formulae. Ratio |
They include Belgium: 30 years after inclusion; France: 40 years after the end of the sentence or after the age of 80; Hungary: 20 years after the sentence has been served; Latvia: 75 years of age; Poland: 35 years after conviction; Germany: DNA profiles are reviewed after ten years and removal depends on a court decis... |
It can thus be seen that member states have chosen many different approaches but there is, in my opinion, no principled basis upon which the system in operation in Northern Ireland can be held to be disproportionate, especially when compared with the significant number of countries which retain DNA profiles until death... |
Very few states have a process of review. Ratio |
The factors set out above seem to me to be strong factors in support of the conclusion that the PSNI was entitled to retain the biometric data as it did in the case of those convicted. Ratio |
As the ECtHR put in a different context in Animal Defenders International v United Kingdom (2013) 57 EHRR 21, para 23, the lack of consensus between states broadens the margin of appreciation to be accorded to individual states. Ratio |
See also eg Frett v France (2004) 38 EHRR 31, para 41 and Goodwin v United Kingdom (2002) 35 EHRR 28, para 85. Ratio |
While a blanket policy may be objectionable in some circumstances (see eg Hirst v United Kingdom (No 2) (2006) 42 EHRR 41, para 81), all depends upon the circumstances. Ratio |
It was put thus in the Animal Defenders case at paras 109 and 110: 109. Ratio |
It follows that the more convincing the general justifications for the general measure are, the less importance the court will attach to its impact in the particular case. Ratio |
110. Ratio |
The central question as regards such measures is not, as the applicant suggested, whether less restrictive rules should have been adopted or, indeed, whether the State could prove that, without the prohibition, the legitimate aim would not be achieved. Ratio |
Rather the core issue is whether, in adopting the general measure and striking the balance it did, the legislature acted within the margin of appreciation afforded to it. Ratio |
See also eg Clift v United Kingdom (Application No 7205/07) at para 76. Ratio |
In these circumstances, it appears to me that there is no basis in the ECtHR jurisprudence for the conclusion that the PSNI policy of retaining biometric data indefinitely is not justified. Ratio |
The policy was within the margin of appreciation identified by the ECtHR. Ratio |
The question then arises how the Northern Irish court should proceed. Ratio |
In R (Nicklinson) v Ministry of Justice [2014] UKSC 38, [2014] 3 WLR 200, Lord Neuberger put the position thus at para 75: Where the legislature has enacted a statutory provision which is within the margin of appreciation accorded to member states, it would be wrong in principle and contrary to the approach adopted in ... |
However, where the provision enacted by Parliament is both rational and within the margin of appreciation accorded by the Strasbourg court, a court in the United Kingdom would normally be very cautious before deciding that it infringes a Convention right. PRE |
As Lord Mance said in In re G, the extent to which a United Kingdom court should be prepared to entertain holding that such legislation is incompatible must depend on all the circumstances, including the nature of the subject-matter, and the extent to which the legislature or judiciary could claim particular expertise ... |
In re G (Adoption: Unmarried Couple) is reported at [2008] UKHL 38, [2009] AC 173. PRE |
Having concluded that the retention policy is within the margin of appreciation accorded by the Strasbourg court, the Northern Irish court must decide for itself whether it infringes a Convention right. Ratio |
The question is whether the policy is proportionate, and therefore justified, under article 8(2). Ratio |
Viewed from a domestic standpoint, it appears to me that the authorities in Northern Ireland were entitled to pursue such a policy on the basis that it was justified and proportionate under article 8(2), essentially for the reasons discussed above and given by the Divisional Court as summarised below. Ratio |
Girvan LJ set out (at para 44) 11 factors which led him (and the Divisional Court) to the conclusion that the policy of indefinite retention is not disproportionate and that the application should be refused. Ratio |
His 11 factors were these: (i) The building up of a database of such data from those convicted of offences provides a very useful and proven resource in the battle against crime by reason of the assistance it provides in identifying individuals. Ratio |
It is clear that the larger the database the greater the assistance it will provide. Ratio |
While a universal database would be of immense help in combatting crime, weighing the private rights of individuals against the good which would be achieved by such a universal system requires the striking of a fair balance. Ratio |
Experience has shown that those who have committed offences may go on to commit other offences. Ratio |
A state decision to draw the line at those convicted of a substantial category of offences is entirely rational and furthers the legitimate aim of countering crime so as to protect the lives and rights of others. Ratio |
(ii) The rights and expectations of convicted persons differ significantly from those of unconvicted persons. Ratio |
The striking of a balance between the public interest and the rights of a convicted or an unconvicted individual will inevitably be appreciably different. Ratio |
Strasbourg recognises that even in the case of some unconvicted persons retention for a period may be justifiable in the public interest. Ratio |
(iii) A person can only be identified by fingerprints and DNA sample either by an expert or with the use of sophisticated equipment. Ratio |
The material stored says nothing about the physical make up, characteristics or life of the person concerned and it represents objective identifying material which can only be relevant or of use when compared with comparative material taken from a person lawfully subjected to a requirement to provide such material for ... |
(iv) The use to which the material can be lawfully put is severely restricted by the legislation. Ratio |
(v) As well as being potentially inculpatory the material may be exculpatory and thus in ease of a person such as the applicant. Ratio |
If it is inculpatory its use assists in the detection of someone likely to have been involved in crime which is a matter of deep interest to the public. Ratio |
(vi) There is in place an exceptional case procedure which permits of a possibility of an application to have data removed. Ratio |
(vii) Any differentiation within the system between categories of convicted persons calls for administrative action and has the potential for administrative complexity. Ratio |
Lord Steyn described how there was the potential for interminable and invidious disputes where differentiation is operated. Ratio |
While he was making that point in the context of differentiation between convicted and unconvicted persons (and thus was in error according to the Strasbourg court) the point retains its force in the context of differentiation between convicted persons. Ratio |
Carswell LCJ pointed out in In re McBride [1997] NI 269 at 274 that the legislature wished to have as wide a cover for the database as possible in order to give the police the best chance of detecting criminal offenders. Ratio |
Marper requires protections for unconvicted persons and the current legislation and policy have limited the retention of data to those convicted of recordable offences. Ratio |
To allow further exceptions would in the view of the authorities undermine the effectiveness of the process which is designed to build up a database of those who have been involved in criminality to assist in the war against crime. Ratio |
Such a conclusion by the state authorities is legitimate and rational. Ratio |
(viii) The current policy in fact does distinguish between (a) unconvicted persons and those convicted of offences which are not recordable and (b) those convicted of offences which are recordable. Ratio |
This represents a policy and legislative intent which is not blanket or indiscriminate as such but one which distinguishes between cases. Ratio |
The choice of that differentiation is one involving the exercise of judgment by the state authorities which seeks to balance, on the one hand, the very limited impact of retention and use of such material on a person's real private life and its minimal impact on the intimate side of his life and, on the other hand, the... |
The choice to retain the data of those convicted of recordable offences represents the exercise of a balanced and rational judgment by the authorities. Ratio |
(ix) In this case the offence committed by the applicant cannot, as the applicant asserts, be described as minor or trivial. Ratio |
It was an offence of a potentially dangerous antisocial nature. Ratio |
The criminal law has as one of its aims the protection of the lives of others and the consumption of alcohol by a driver endangers human life. Ratio |
Indeed the state under its operative duties under article 2 must have in place laws which protect the lives of others. Ratio |
The offence was a recordable offence being one in respect of which a period of imprisonment could be ordered. Ratio |
(x) Time limitations on the retention of data for particular categories of offences can be imposed as has occurred in some legal systems such as in The Netherlands (See W and Van der Velden). Ratio |
Different countries operate different policies in this field and some other countries follow practices similar to those followed in the United Kingdom. Ratio |
Any time restriction is inevitably somewhat arbitrary and it is difficult to point to any particular reason why one particular period as opposed to another should be chosen. Ratio |
To introduce time limitations for some offences simply to avoid a possible charge of disproportionality smacks of defensive policy making in a field which requires a proper balancing of the interests of the public against the consequences of criminal activity. Ratio |
The introduction of different time periods for different offences or for different sentences would clearly add to the administrative burden and would require changes and deletion of recorded data. Ratio |
This complexity would be aggravated in the case of those found guilty periodically of repeat offending in respect of minor offences. Ratio |
The removal of such data would give the offender no benefit other than the knowledge that his data is no longer recorded. Ratio |
As already noted the retention of the data represents a very minor intrusion into his private life. Ratio |
(xi) The retention of the data serves the added purpose of discouraging a convicted offender from re offending for the offender has the knowledge that the police have available data which could lead to his detection. Ratio |
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