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The permanent retention of that data thus serves a useful long term purpose in that regard. Ratio |
I agree with that analysis and would dismiss the appeal. RPC |
I would answer the certified question (quoted at para 8 above) in the negative. Ratio |
I do not think that it was suggested that, if the retention of the biometric data was lawful, the retention of the photograph was not. Ratio |
Annex A SUMMARY OVERVIEW OF RETENTION RULES DNA SAMPLES Arrest/charge/conviction status All DNA samples regardless of whether person convicted or not Retention rule Must be destroyed once a DNA profile has been derived from it, or after six months, whichever is sooner (s 63R) Arrest/charge/conviction status Person arre... |
On expiry of that period the police may apply for a court order for retention for a further 2 years (ss 63F and 63G) Retention for 2 years (s 63L) Where not sentenced to a custodial sentence, retention for 5 years; where sentenced to a custodial sentence of less than 5 years, retention for the length of the sentence pl... |
Otherwise must be destroyed when it has fulfilled its purpose). Ratio |
Person over 18 convicted of non-qualifying recordable offence Person convicted of qualifying recordable offence Material subject to a national security determination (NSD) Material given with consent Material retained with consent DNA samples, DNA profiles and fingerprints subject to the Criminal Procedure and Investig... |
Minors: removed if s/he is not forensically identified in the previous three years. Ratio |
Acquitted suspects have to apply for removal and/ or the authorities will decide if the acquitted suspect's profile is no longer necessary Convicted offenders 30 years after inclusion. Ratio |
Profiles in the criminal investigation database deleted when no longer needed. Ratio |
Convicted offenders 2 years after death or at 80 years of age. Ratio |
Suspects 10 years after acquittal. Ratio |
At 70 years of age, 2 years after death. Ratio |
Suspects and convicted offenders 10 years after death. Ratio |
Suspects 1 year after acquittal (on the order of a legal officer) or 10 years after death. Ratio |
Convicted offenders 10 years after death. Ratio |
France Suspects and individuals convicted of serious crimes (list) Germany Hungary Ireland Italy Lativa Lithuania Luxembourg Official suspects charged with crimes and individuals convicted of serious crimes or re-offending with other crimes Convicted offenders and individual suspected of crimes punishable with a senten... |
Suspects removed when retention is no longer considered necessary by a law official (or at the request of the party concerned) Profiles reviewed 10 years (adults), 5 years (young people) or 2 years (children) after inclusion. Ratio |
Removal of profiles of convicted offenders depends on a court decision. Ratio |
Suspects deleted after acquittal. Ratio |
Convicted offenders 20 after sentence has been served Profiles of suspects acquitted or not charged removed after 10 years, or 5 years in the case of minors. Ratio |
Convicted offenders indefinite retention. Ratio |
Individuals arrested and remanded in custody deleted on acquittal. Ratio |
Convicted offenders 20 years after the incident that led to sampling. Ratio |
No profile may be held for more than 40 years. Ratio |
Convicted offenders 75 years. Ratio |
Suspects 10 years after verdict, if acquitted. Ratio |
100 years after inclusion or 10 years after the death of the suspect or convicted offender. Ratio |
Suspects after acquittal, prescription of the crime or 10 years after death. Ratio |
Convicted offenders 10 years Convicted offenders 30 years after sentencing if the crime is punishable with > 6 years 20 after death; 20 years if < 6 years or 12 after death. Ratio |
Suspects and convicted sexual offenses against minors 80 years. Ratio |
Retention may be extended in the event of a new conviction; Suspects DNA profiles are removed if they are not prosecuted or convicted (unless a match is found in the DNA database). Ratio |
Suspects deleted after acquittal. Ratio |
Convicted offenders after 35 years Portugal Individuals convicted of premeditated crimes with an effective prison sentence of 3 years or more, by court order Convicted offenders until criminal record annulled. Ratio |
Romania Suspects and convicted offenders (listed crimes) Scotland Individuals detained of any crime Slovakia Suspects and convicted offenders any crime Spain Individuals detained and those convicted of serious crimes (list) Sweden Convicted offenders receiving non- financial sentences of over 2 years Suspects removed w... |
Convicted offenders retained until aged 60 (in the event of the death of the individual, retained for a further 5 years) Suspects deletion after acquittal or extension of retention period in cases of relevant sexual or violent offences. Ratio |
Convicted offenders indefinite retention. Ratio |
Convicted offenders 100 years after the date of birth of the individual concerned. Ratio |
Suspects removal after acquittal. Ratio |
Individuals detained data deleted on prescription of crime.b Individuals convicted on date of prescription of criminal record (unless a court order states otherwise). Ratio |
Suspects removed after acquittal. Ratio |
Convicted offenders 10 years after sentence served. Ratio |
aIn Austria serious crimes, as defined in section 16(2) of the Sicherheitspolizeigesetz (Security Police Act), are understood to be any threat against a legal asset by, committing a premeditated crime punishable by law. Ratio |
In addition to the type of crime, the profile of an individual may be included when the police cite the nature of the crime or the personality of the respective individual as grounds for expecting them to reoffend (Prainsack and Kitzberger 2009). Ratio |
bThe period of prescription for the crime applies to individuals who are detained and for whom the judicial proceedings do not result in acquittal or conviction. Ratio |
LORD KERR: (dissenting) Ratio |
On 14 October 2008 Fergus Gaughran was driving between Crossmaglen and Camlough, County Armagh when his vehicle was stopped at a police checkpoint. FAC |
As a result of a breath test taken from Mr Gaughran at the scene, it was suspected that he had been driving after having consumed more than the permissible amount of alcohol. FAC |
He was arrested and taken to a police station in Newry, County Down. FAC |
There he provided more samples of breath which, when analysed, were found to contain 65 milligrams of alcohol per 100 millilitres of breath. FAC |
This level of alcohol exceeded the permitted limit by 30 milligrams. FAC |
Mr Gaughran was charged with the offence of driving with excess alcohol. FAC |
He pleaded guilty to that offence at Newry Magistrates Court on 5 November 2008 and was fined 50 and ordered to be disqualified from driving for 12 months. FAC |
As well as supplying samples of breath, Mr Gaughran provided a DNA sample. Ratio |
His photograph and fingerprints were taken. Ratio |
It has been established that, despite initial claims by the appellant to the contrary, all of this was done with his consent and there is no issue as to the legal entitlement of the police to take these steps. Ratio |
The photographs, fingerprints and DNA sample are held on the database maintained by the Police Service of Northern Ireland (PSNI). Ratio |
Section 9 of and Schedule 2 to the Criminal Justice Act (Northern Ireland) 2013 make provision about the retention of samples. Ratio |
When they come into force a new article 63P will be inserted into the Police and Criminal Evidence (Northern Ireland) Order 1989. Ratio |
This will have the effect that Mr Gaughrans DNA sample will be destroyed. Ratio |
But already a DNA profile compiled from his sample has been created by the Forensic Science Agency in Northern Ireland (FSNI). Ratio |
A DNA profile consists of digitised information in the form of a numerical sequence representing a small part of the person's DNA. Ratio |
The DNA profile extracted by FSNI comprises 17 pairs of numbers and a marker ("XX" or "XY") which indicates gender. Ratio |
DNA profiles do not include any information from which conclusions about personal characteristics of an individual, such as his or her age, height, hair colour or propensity to develop a particular disease might be drawn. Ratio |
The purpose of the profile is to provide a means of identification of the person in respect of whom it is held. Ratio |
The European Court of Human Rights (ECtHR) made these observations in para 75 of S and Marper (2009) 48 EHRR 50 about the use to which DNA profiles can be put: the profiles contain substantial amounts of unique personal data. Ratio |
While the information contained in the profiles may be considered objective, and irrefutable in the sense submitted by the Government, their processing through automated means allows the authorities to go well beyond neutral identification. Ratio |
The court notes in this regard that the Government accepted that DNA profiles could be, and indeed had in some cases been, used for familial searching with a view to identifying a possible genetic relationship between individuals. Ratio |
It also accepted the highly sensitive nature of such searching and the need for very strict controls in this respect. Ratio |
DNA profiles obtained by police in Northern Ireland, such as that of Mr Gaughran, are held (and, it is intended, will remain) on the Northern Ireland DNA database. Ratio |
Although a profile thus created does not include information as to whether that person has been convicted of or is under investigation for an offence, it contains sufficient material to allow the person concerned to be identified and, of course, it can be used to match a DNA sample subsequently obtained. Ratio |
The photograph and fingerprints of Mr Gaughran have also been retained and it is intended that these will also be kept indefinitely. Ratio |
As of June 2012, the Northern Ireland DNA database included the DNA profiles of 123,044 known persons. Ratio |
DNA profiles uploaded onto the Northern Ireland system are also loaded onto the United Kingdom wide National DNA Database. Ratio |
The retention of Northern Irish DNA profiles on the National DNA Database is governed by the law and policy applicable in Northern Ireland. Ratio |
Mr Gaughran claims that the policy of PSNI to retain for an indefinite period his DNA profile, his photograph and his fingerprints is an interference with his right to respect for a private life guaranteed by article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) and that that interference... |
Article 8 of ECHR provides: 1. STA |
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... |
Justification of an interference with a Convention right Ratio |
It is accepted by the respondent and the intervener that the appellants article 8 right has been interfered with; the single and central issue in the appeal is whether that interference has been justified. Ratio |
Justification of interference with a qualified Convention right such as article 8 rests on three central pillars. Ratio |
The interference must be in accordance with law; it must pursue a legitimate aim; and it must be necessary in a democratic society. Ratio |
Proportionality is a sub-set of the last of these requirements. Ratio |
The appellant has not argued that the retention of samples, his photograph and his fingerprints is other than in accordance with law see articles 64(1A) and 64A(4) of the Northern Ireland PACE Order of 1989. Ratio |
Likewise, it is not disputed that the retention of these pursues a legitimate aim. Ratio |
That aim was identified by ECtHR in S and Marper v United Kingdom at para 100 as the detection, and therefore, the prevention, of crime. Ratio |
In particular the retention of samples etc. Ratio |
was said to be for the broader purpose of assisting in the identification of future offenders. Ratio |
One can focus, therefore, on the question of whether the measure is necessary in a democratic society. Ratio |
In the context of this case, that means asking whether the policy is proportionate. Ratio |
As Lord Wilson in R (Aguilar Quila) v Secretary of State for the Home Department [2012] 1 AC 621, para 45 and Lord Reed in Bank Mellat v HM Treasury (No 2) [2014] AC 700, 790, para 72ff explained, this normally requires that four questions be addressed: (a) is the legislative objective sufficiently important to justify... |
The circumstance that the measure pursues a legitimate aim does not necessarily equate to the objective of the policy being sufficiently important to justify the limitation of a fundamental right, although, in most cases, the pursuit of such an aim will provide an effective answer to the first of the mooted questions. ... |
It is, at least hypothetically, possible to conceive of a legitimate aim that a contemplated policy or a legislative provision might seek to achieve but, because the right that would thereby be infringed is so fundamental, no limitation on it, on the basis of the avowed legitimacy of the aim to be pursued, would be def... |
One need not dwell on this, perhaps somewhat esoteric, question, however, because it has not been contended by the appellant that no limitation on his article 8 right could be justified. Ratio |
It is accepted that the need to counteract crime is of sufficient importance to warrant some restriction of the right to respect for private life. Ratio |
But the actual interference, as ECtHR observed in S and Marper at para 101, must conform to the general principle of the Strasbourg jurisprudence that an interference will only be considered necessary in a democratic society if it answers a pressing social need and, in particular is proportionate to the aim pursued. Ra... |
Importantly, the court stated that the reasons which national authorities proffered to justify the interference must be relevant and sufficient. Ratio |
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