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This is of especial significance in addressing the question whether it has been shown that there is in fact a rational connection between the breadth of the policy as it is currently framed and the objective which it is said to be designed to achieve. Ratio |
The two critical questions on the issue of the proportionality of the policy of indefinite retention of the appellants DNA profile, his photograph and his fingerprints are, in my opinion, whether there is a rational connection between the legislative objective and the policy and whether it goes no further than is neces... |
What is the objective of the policy? Ratio |
It is, I believe, necessary to recognise the distinction between the legislative provisions which authorise the retention of samples etc. Ratio |
and the policy of using those provisions to retain them indefinitely. Ratio |
The justification of, on the one hand, the enactment of statutory provisions which permit retention and, on the other, the use of those provisions to devise a policy to retain without limit must be considered separately. Ratio |
But no distinction has been drawn between the legislation and the policy in terms of their objective. Ratio |
In the case of both, this has been assumed to be that which was articulated in S and Marper v United Kingdom, namely, the detection of crime and assisting in the identification of future offenders. Ratio |
It is of fundamental importance that it be recognised that the objective is not the creation of as large a database of the Northern Irish population as possible, in order that it should be available as a potential resource in the counteracting of crime. Ratio |
The objective is defined in terms of the actual detection of crime and identification of future offenders. Ratio |
This distinction is important because it is not difficult to hypothesise that if everyones DNA profile was held by police this might have a significant impact on the detection of future criminals. Ratio |
The theory is, perhaps, less obvious but still tenable in relation to photographs and fingerprints. Ratio |
But hypothesis should not be confused with evidence. Ratio |
And the question of whether the retention of DNA profiles, photographs and fingerprints of a limited class of person viz those convicted of recordable offences, as opposed to the population at large, would in fact make a substantial contribution to counteracting crime is, at best, imponderable. Ratio |
But before it can be said that a rational connection exists between the retention of biometric data of all convicted of recordable offences and the detection of crime and identification of future offenders one must go beyond assumption or supposition. Ratio |
To justify an interference, it is necessary that it be shown, at the very least, that the promoted objective will be advanced, in order to support the claim that there is a rational connection between the interference and the stated objective. Ratio |
Rational connection? Ratio |
A connection between the aim of a measure and its terms, in order to qualify as rational, must be evidence-based see para 101 of S and Marper. Ratio |
Mere assertion that there is such a connection will not suffice, much less will speculation or conjecture that the connection exists. Ratio |
The fact that the interference can be characterised as relatively slight (as ECtHR described the retention of DNA profiles and fingerprints of convicted persons in the two admissibility decisions of Van der Velden v The Netherlands 29514/05 EQ-IR and W v The Netherlands 20689-08 (2009) ECHR 277) does not diminish the n... |
Slight interference may sound on the question of whether a measure can be regarded as no more intrusive than necessary. Ratio |
It does not supply the answer to the question whether it is rationally connected to its avowed aim. Ratio |
Moreover, the rational connection here must be between the objective of the detection of future criminals and the indefinite retention of the profile, fingerprints and photograph. Ratio |
It is not enough that retaining these items on a permanent basis might, in some vague or unspecified way, help in the detection of crime in the future. Ratio |
It is necessary to show that in a real, tangible sense, keeping DNA profiles, fingerprints and photographs indefinitely will assist in counteracting or detecting future crime. Ratio |
That is not to say, of course, that it needs to be shown that retention of the appellants particular details will assist in preventing or detecting crime in the future. Ratio |
But, as a minimum, it must be established that retaining forever such items from all who have been convicted of recordable crime is likely to make a positive and significant contribution to the detection of future criminal activity. Ratio |
I accept, of course, that it is not required of the state to show that the achievement of the aim of the measure will be the only and inexorable consequence of its implementation. Ratio |
As Lord Reed said in Bank Mellat (No 2), quoting Wilson J in the Canadian case of Lavigne v Ontario Public Service Employees Union [1991] 2 SCR 211, 291 the inquiry into rational connection between objectives and means to attain them requires nothing more than showing that the legitimate goals of the legislature are lo... |
As Lord Reed then put it: The words furthered by point towards a causal test: a measure is rationally connected to its objective if its implementation can reasonably be expected to contribute towards the achievement of that objective. Ratio |
This is the critical question on this particular aspect of the proportionality analysis. Ratio |
Can the indefinite retention of biometric data of all who are convicted of recordable offences be reasonably expected to contribute to the detection of crime and the identification of future offenders? It is, of course, tempting to make the assumption that the more DNA profiles etc. Ratio |
that the police hold, the greater will be their chances of discovering the identity of those who commit crime in the future. Ratio |
But there is a striking lack of hard evidence to support the claim that a blanket policy of retaining such items indefinitely is indispensable to the need to counteract crime or even that it will make a significant contribution to the detection of future crime. Ratio |
The usefulness of the assembly of a pool of personal data to assist with the detection of crime was rejected in S and Marper as justification for interference with the article 8 right and should also be in this case. Ratio |
Without proof as to the likelihood of reoffending, there is no obvious, or rational, connection between the current policy and reducing crime. Ratio |
The current system operates on the assumption that all persons who, at any time, commit any offence are potential suspects in any future crime. Ratio |
No evidence to support this has been provided. Ratio |
Indeed, the only evidence proffered by the respondent on this issue was that which suggested that 90% of those who were given custodial sentences reoffended within two years, regardless of the nature of the original offence. Ratio |
But the true significance of this particular statistic must be recognised. Ratio |
It involves (a) the commission of more serious offences, which attract a custodial offence; (b) more serious offenders, where the custodial option has been chosen; and (c) time-limitation, rather than indefinite duration. Ratio |
In fact, the respondent accepted during the hearing that there was no robust evidence base for the current policy. Ratio |
It seems to me clear, therefore, that a rational connection between the policy and its professed aim has not been established. Ratio |
Much was made in the Divisional Court of the fact that S and Marper was concerned with the retention of the data of persons who had not been convicted. Ratio |
But the need for a rational connection between the broad policy of indefinite retention of the DNA profiles, photographs and fingerprints of all who have been convicted of recordable offences is just as necessary in their case. Ratio |
The connection cannot be considered to be supplied simply by the fact of conviction. Ratio |
Many who have been convicted, especially of less serious recordable offences never re-offend. Ratio |
The rational connection between the retention of their biometric data and photographs still needs to be established. Ratio |
It is not to be inferred or presumed simply because they have been found guilty. Ratio |
Nor can the connection be presumed to exist just because the importance of the use of DNA material in the solving of crime has been recognised by ECtHR. Ratio |
It requires a considerable leap of faith, or perhaps more realistically, a substantial measure of conjecture, to say that simply because DNA material is useful in combatting crime in a general way the retention forever of DNA profiles of everyone convicted of a recordable offence establishes the rational connection bet... |
In this connection, it should be remembered that recordable offences occupy a wide spectrum of criminal activity. Ratio |
Under the Northern Ireland Criminal Records (Recordable Offences) Regulations 1989 they include not only all offences punishable by imprisonment but also examples of what may fairly be described as minor, not to say trivial, offences such as tampering with motor vehicles (article 173 of the Road Traffic (Northern Irela... |
To take some even more extreme examples they include blowing a horn or other noisy instrument or ringing any bell for the purpose of announcing any show or entertainment or hawking, selling, distributing or collecting any article whatsoever, or obtaining money or alms; wilfully and wantonly disturbing any inhabitant by... |
These might be considered to be frivolous examples of recordable crimes which would never, in practical reality, generate the taking of biometric samples but they serve to illustrate the extremely wide potential reach of PSNIs current policy and the failure of PSNI to confront the implications of the breadth of its pos... |
No more than necessary to achieve the aim? Ratio |
If one accepts the premise that the retention of DNA profiles, fingerprints and photographs of those convicted of crime can help in the detection and identification of future offenders, the question arises whether a more tailored approach than that of the current PSNI policy in relation to the retention of those materi... |
ECtHR has consistently condemned, or, at least, has been extremely wary of, measures which interfere with a Convention right on an indefinite or comprehensive basis. Ratio |
Thus in Campbell v United Kingdom (1992) 15 EHRR 137 the court rejected the justification for opening and reading all correspondence between prisoners and solicitors, pointing out that letters could be opened to check for illicit enclosures without having to be read at para 48. Ratio |
And in Open Door Counselling and Dublin Well Woman v Ireland (1992) 15 EHRR 244, the permanent nature of an injunction granted by the Supreme Court of Ireland restraining the applicants from counselling pregnant women in Ireland on the options for travelling abroad to obtain an abortion was found to be disproportionate... |
The Irish Supreme court had granted an injunction, restraining the applicants from counselling or assisting pregnant women to obtain further advice on abortion. Ratio |
ECtHR found the injunction to be disproportionate and in breach of article 10, because of its perpetual nature and because of its sweeping application. Ratio |
It applied regardless of the age or health of the women who sought the applicants advice or of the reasons that the advice was sought at para 73. Ratio |
The question whether a measure interfering with a Convention right is no more than necessary to achieve the aim is sometimes expressed as an inquiry into whether the least intrusive means has been chosen. Ratio |
This has not always been the basis used by the Strasbourg court as a measure of the proportionality of a particular species of interference and it has been suggested that it is a factor to be weighed in the balance, but not insisted on in every case Arden LJ Human Rights and European Law (2015) OUP, p 60. Ratio |
In R (Wilson) v Wychavon District Council Richards LJ [2007] QB 801 suggested that the least restrictive means test was not an integral part of the proportionality assessment. PRE |
Recent case-law from ECtHR suggests, however, that resort to the least intrusive means approach will be much more readily made in deciding whether interference with a Convention right is proportionate. PRE |
In Mouvement Raelien Suisse v Switzerland (2012) 16354/06, para 75, the court observed at the conclusion of its proportionality reasoning: the authorities are required, when they decide to restrict fundamental rights, to choose the means that cause the least possible prejudice to the rights in question. PRE |
And in Nada v Switzerland (2013) 10593/08 , para 183, ECtHR made similar comments: The court has previously found that, for a measure to be regarded as proportionate and as necessary in a democratic society, the possibility of recourse to an alternative measure that would cause less damage to the fundamental right at i... |
In Bank Mellat Lord Reed, in outlining the four-fold test of proportionality followed the approach of Dickson CJ in the Canadian case of R v Oakes [1986] 1 SCR 103. PRE |
It is worth recalling that Lord Reed, in articulating the third element of the test, specifically endorsed the approach that one should ask whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective. PRE |
Of course it is true that this approach does not require the condemnation of an interference simply on the basis that it is possible to conceive of a less intrusive interference at a theoretical level. Ratio |
The mooted less intrusive measure must be capable of fulfilling, and must not unacceptably compromise, the objective. Ratio |
As Lord Reed pointed out, a strict application of a least restrictive means test would allow only one legislative response to an objective that involved limiting a protected right. Ratio |
But where it is clear that the legislative objective can be properly realised by a less intrusive means than that chosen, or where it is not possible to demonstrate that the database that is created by the PSNI policy is in fact needed to achieve the objective, this is, at least, a strong indicator of its disproportion... |
I suggest, therefore, that the least restrictive measure test is now well established as part of domestic law. Ratio |
A recent example of its application is to be found in a case decided in October 2014, R (Gibraltar Betting and Gaming Association Ltd) v Secretary of State for Culture, Media and Sport [2014] EWHC 3236 (Admin) where the High Court went to considerable lengths in paras 182-190 to analyse this test as part of its proport... |
See also R (Sinclair Collis Ltd) v Secretary of State for Health [2012] QB 394. Ratio |
European Union law on the least restrictive means test Ratio |
It is beyond question that proportionality is a fundamental principle of EU law. Ratio |
In the Skimmed Milk Powder case Bergman v Grows-Farm [1977] ECR 1211 it was held that, in order to be lawful, an obligation had to be necessary in order to attain the objective in question. PRE |
Similarly, in Commission v United Kingdom (Re UHT Milk) [1983] ECR 203, at para 236, the ECJ commented: It must be ascertained whether the machinery employed in the present case by the UK constitutes a measure which is disproportionate in relation to the objective pursued, on the ground that the same result may be achi... |
EU law and that of ECHR have become increasingly assimilated, not least because of the possible future accession of the EU to the Convention and the enactment of the European Charter on Human Rights. Ratio |
In this context, see also cases such as Baumbast v Secretary of State for the Home Department [2002] (Case No C-413/99) [2003] ICR 1347. Ratio |
The Court of Justice of the European Union has traditionally given the Convention special significance as a guiding principle in its case law (Anthony Arnull, The European Union and its Court of Justice (2006) pp 339-340) and therefore, while the EU approach to proportionality is not necessarily to be imported wholesal... |
Canadian case-law Ratio |
Lord Reed in Bank Mellat (No 2), referred to the circumstance that Canadian law has long embraced the least restrictive measures principle see, in particular, Ford v Quebec [1988] 2 SCR 712 and Black v Royal College of Dental Surgeons [1990] 2 SCR 232 and the classic exposition of the test in R v Oakes above. PRE |
court stated: In Libman v AG of Quebec (1997) 151 DLR (4th ed) 385, paras 415-416 the The government must show that the measures at issue impair the right of free expression as little as reasonably possible in order to achieve the legislative objective. PRE |
The impairment must be minimal, that is the law must be carefully tailored so that rights are impaired no more than necessary. PRE |
The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. PRE |
If the law falls within a range of reasonable alternatives, the court will not find it over broad because they can conceive of an alternative which may better tailor the objective to infringement. PRE |
This approach is largely mirrored in the current case-law of this country, particularly Bank Mellat (No 2). Ratio |
There must be a proper inquiry into whether the measure affects the right of the individual no more than is necessary. Ratio |
That does not require the state to show that every conceivable alternative is unfeasible a condition of unique practicability is not demanded. Ratio |
But if it is clear that the measure goes beyond what the stated objective requires, it will be deemed disproportionate. Ratio |
Application of the principles to the present case Ratio |
One must return, therefore, to the question whether a more tailored approach than that of the current PSNI policy in relation to the retention of biometric materials, sufficient to satisfy the aim of detecting crime and assisting in the identification of future offenders, is possible. Ratio |
To that question only one answer can be given, in my opinion. Ratio |
Clearly, a far more nuanced, more sensibly targeted policy can be devised. Ratio |
At a minimum, the removal of some of the less serious offences from its ambit is warranted. Ratio |
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