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But also, a system of review, whereby those affected by the policy could apply, for instance on grounds of exemplary behaviour since conviction, for removal of their data from the database would be entirely feasible. Ratio |
Similarly, gradation of periods of retention to reflect the seriousness of the offence involved would contribute to the goal of ensuring that the interference was no more intrusive than it required to be. Ratio |
In this context, article 5(e) of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data should be noted. Ratio |
It provides that personal data undergoing automatic processing shall be preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which it is required. Ratio |
There is no evidence that consideration has been given to the question of whether it is necessary for the effective combatting of crime that the materials concerned in this case should be retained indefinitely. Ratio |
For the intervener, the Secretary of State for the Home Department, Mr Eadie QC accepted that the decision as to how long and for what offences biometric and other data should be retained called for a nuanced decision. Ratio |
He argued that this had been achieved by the exclusion of non-recordable offences and offences committed by children and by the fact that such material from those not convicted was no longer retained. Ratio |
He was unable to point to evidence, however, that the question of whether it was necessary that there be retention of all data from all convicted of recordable offences for all time had been considered. Ratio |
Absent such consideration and in light of the fact that it is eminently possible to conceive of measures which are less intrusive but which would conduce to the avowed aim of the policy, it is simply impossible to say that the policy in its present form is the least intrusive means of achieving its stated aim. Ratio |
A fair balance? Ratio |
The final element in the proportionality examination is whether a fair balance has been struck between the rights of the individual and the interests of the community. Ratio |
Although this may not be of quite the same importance as the rational connection and less intrusive means factors, it deserves consideration in its own right. Ratio |
The starting point must be a clear recognition of the importance of the rights of the individual. Ratio |
This was emphasised by ECtHR in S and Marper at para 103: The protection of personal data is of fundamental importance to a persons enjoyment of his or her right to respect for private and family life, as guaranteed by article 8 of the Convention. Ratio |
The domestic law must afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees of this article. Ratio |
The need for such safeguards is all the greater where the protection of personal data undergoing automatic processing is concerned, not least when such data are used for police purposes. Ratio |
The domestic law should notably ensure that such data are relevant and not excessive in relation to the purposes for which they are stored; and preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored. Ratio |
The domestic law must also afford adequate guarantees that retained personal data was efficiently protected from misuse and abuse. Ratio |
The above considerations are especially valid as regards the protection of special categories of more sensitive data and more particularly of DNA information, which contains the person's genetic make-up of great importance to both the person concerned and his or her family. Ratio |
At para 104 the European court acknowledged that the interests of the data subjects and the community as a whole in protecting personal data could be outweighed by the legitimate interest in the prevention of crime but it emphasised that the intrinsically private character of the information called for careful scrutiny... |
Addressing the blanket and indiscriminate nature of the power of retention, the court said this at para 119: The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken... |
The retention is not time limited; the material is retained indefinitely whatever the nature of 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 s... |
While this was said in relation to those who had not been convicted of crime, much of this passage is clearly relevant to the issue under discussion here. Ratio |
No differentiation is made based on the gravity of the offence of which an individual was convicted; the retention is not time-limited, whatever the offence; and there is no provision for independent review of the justification for the retention of the data. Ratio |
The court also addressed the question of stigmatisation of individuals by the retention of data. Ratio |
At para 122 it said: Of particular concern in the present context is the risk of stigmatisation, stemming from the fact that persons in the position of the applicants, who have not been convicted of any offence and are entitled to the presumption of innocence, are treated in the same way as convicted persons. Ratio |
In this respect, the court must bear in mind that the right of every person under the Convention to be presumed innocent includes the general rule that no suspicion regarding an accuseds innocence may be voiced after his acquittal. Ratio |
It Ii true that the retention of the applicants private data cannot be equated with the voicing of suspicions. Ratio |
Nonetheless, their perception that they are not being treated as innocent is heightened by the fact that their data are retained indefinitely in the same way as the data of convicted persons, while the data of those who have never been suspected of an offence are required to be destroyed. Ratio |
Of course, it is true that the sense of stigmatisation may be more acutely felt by those who have been acquitted of crime but that does not mean that someone such as the appellant would be free from such sentiment knowing as he does that his biometric data and photograph will forever remain on police databases. Ratio |
Although he has been convicted of a crime, and a serious crime at that, he is entitled to be presumed innocent of future crime notwithstanding that conviction. Ratio |
His sense of stigmatisation and the impact that the retention of his data on police databases must be taken into account, therefore, in an assessment of whether a fair balance has been struck between his rights and the interests of the community as a whole. Ratio |
As Lord Reed observed in para 71 of Bank Mellat this involves what is essentially a value judgment. Ratio |
Making due allowance for what has been claimed will be the contribution made to fighting crime by the indefinite retention of data from those such as the appellant, when weighed against his personal interests, my judgment is that a fair balance has not been struck between the two. Ratio |
I am reinforced in this view by consideration of the provisions and intended effect of the Rehabilitation of Offenders (Northern Ireland) Order 1978. Ratio |
By virtue of article 5 of that Order, a person who has become rehabilitated for the purposes of the Order is to be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence. Ratio |
Retaining the biometric data of someone who has become rehabilitated is plainly inconsistent with the requirement that he or she be treated as if they had never been convicted of the offence. Ratio |
Conviction of the offence is the very basis on which the data are retained. Ratio |
If Mr Gaughran had not been convicted, his data could not be retained. Ratio |
But he is being treated markedly differently from someone who has not been convicted. Ratio |
The Secretary of State has submitted that the sole effect of the Order is to restrict the use that may be made of past convictions in legal proceedings, eg where the subject has suppressed a spent conviction. ARG |
This cannot be right. Ratio |
The contexts in which a rehabilitated offender is entitled to demand that he or she be treated in precisely the same way as someone who has not been convicted are not prescribed by the Order. Ratio |
If a rehabilitated offender is entitled, for instance, to refuse to disclose that he has not been convicted when applying for employment, why should he not be entitled to demand that his biometric data be destroyed, after the original purpose in obtaining them is no longer relevant, just as someone who has been arreste... |
It is suggested that the fact that a conviction may become spent is no more than one of a number of factors to be taken into account in deciding whether a proper balance has been struck between the appellants rights and the interests of the community. Ratio |
I consider that it ranks much higher than this. Ratio |
The single basis on which Mr Gaughrans biometric material is retained is that he has committed a crime. Ratio |
If the principle of rehabilitation is to have any meaning, ex-offenders such as he cannot be defined by the fact of their former offending. Ratio |
The philosophy underlying the rehabilitation provisions is the restoration of the ex-offender to his or her position as a citizen without the stigma of having been a criminal. Ratio |
He once more shares with his fellow citizens, entitlement to be treated as if he was of good character. Ratio |
If the fact that his conviction is spent is relegated to the status of a single factor of no especial significance, the purpose of rehabilitation is frustrated. Ratio |
Rehabilitation is our criminal justice systems way of acknowledging and encouraging the potential for personal growth and change. Ratio |
If we continue to define ex-offenders throughout their lives on the basis of their offending we deprive them of reintegration into society on equal terms with their fellow citizens. Ratio |
The only reason proffered to justify the denial of that hope is the assertion that those convicted of offences may reoffend. Ratio |
The premise which must underlie this claim is that those convicted of recordable offences are more likely to reoffend than those who have not been. Ratio |
But no evidence has been presented to support that claim. Ratio |
Unsurprisingly, therefore, no attempt to quantify such a risk has been made. Ratio |
It is difficult to avoid the conclusion that the fact of conviction merely provides the pretext for the assembly and preservation of a database which the police consider might be useful at some time in the future and that it has no direct causal connection to the actual detection of crime and the prevention of future o... |
In any event, for the principle of rehabilitation to have proper effect, it is necessary that, once a conviction is spent, any supposed or presumed risk be regarded as having dissipated. Ratio |
Offenders whose convictions are spent must be treated as any other citizen would be treated. Ratio |
Allowing their biometric details to be retained indefinitely is in flat contradiction of that fundamental principle. Ratio |
It is, of course, true that Mr Gaughrans conviction was not spent when the case was decided in the Divisional Court but that is nothing to the point. Ratio |
In the first place, his conviction is now spent and, more importantly, the PSNI policy proceeds on the basis that the Rehabilitation Order provisions can effectively be ignored. Ratio |
I do not believe that they can be and they constitute an unanswerable reason that the policy does not strike a fair balance between the rights of individuals who are entitled to the benefit of the Orders rehabilitation provisions and the interests of the community. Ratio |
It might be said that, when the 2013 Act comes into force, there will be an express statutory power to retain indefinitely all biometric data of those convicted of a recordable offence. Ratio |
If that will indeed be its effect, serious questions will arise, in my opinion, about its compatibility with article 8 of ECHR. Ratio |
But that is not a matter for decision in this case. Ratio |
The possibility of future legislation underpinning the present policy of PSNI should not deflect this court from recognising the current illegitimacy of that policy. Ratio |
Margin of appreciation Ratio |
It is, of course, the case that a margin of appreciation is available to national authorities in deciding where to strike the balance between the rights of the individual under article 8 of ECHR and the interests of the community. Ratio |
The use and advantage of that margin is exemplified by the consideration in S and Marper of the different standards that have been adopted by various member states of the Council of Europe. Ratio |
It is also referred to in the judgment of Lord Clarke and in the annexes to his judgment. Ratio |
For a margin of appreciation to be accorded to the choice of the member state, however, some consideration must have been given by that state to the issues at stake and a considered judgment must have been made on the options available. Ratio |
One cannot excuse a slack or ill-considered policy as survivable just because it can be said to be open to the member state to make a choice which is different from that of other member states. Ratio |
There needs to be some form of evaluation or judgment of the issues at stake. Ratio |
If the choice is the product of consideration and is designed to meet the particular circumstances or conditions encountered in the particular member state, that is one thing. Ratio |
But an ill-thought out policy which does not address the essential issues of proportionality cannot escape condemnation simply because a broad measure of discretion is available to an individual state. Ratio |
A margin of appreciation is accorded to a contracting state because Strasbourg acknowledges that the issue in question can be answered in a variety of Convention-compatible ways, tailored to local circumstances. Ratio |
But the margin of appreciation that is available to the state does not extend to its being permitted to act in a way which is not Convention compliant. Ratio |
If the state acts in such a way, it cannot insulate itself from challenge by recourse to the margin of appreciation principle. Ratio |
In Wingrove v UK (1996) 24 EHRR 1, para 58, a broad margin case, ECtHR emphasised that authorities within the state in question were in a better position than international judges to give an opinion on the exact content of these requirements with regard to the rights of others as well as on the necessity of the restric... |
Domestic courts therefore have the responsibility to examine closely the proportionality of the measure without being unduly influenced by the consideration that the Strasbourg court, if conducting the same exercise, might feel constrained to give the contracting states decision a margin of appreciation. Ratio |
For the reasons that I have given, I have concluded that the issues which must be considered under the proportionality exercise have not been properly addressed and that, if they had been, a more restricted policy would have been the inevitable product. Ratio |
The margin of appreciation cannot rescue the PSNI policy from its incompatibility with the appellants article 8 right. Ratio |
Conclusion RPC |
I would therefore allow the appellants appeal and declare that the policy of retaining indefinitely DNA profiles, fingerprints and photographs of all those convicted of recordable offences in Northern Ireland is incompatible with article 8 of ECHR. RPC |
I would therefore allow the appellants appeal and declare that the policy of retaining indefinitely DNA profiles, fingerprints and photographs of all those convicted of recordable offences in Northern Ireland is incompatible with article 8 of ECHR. RPC |
Cigarettes attract smokers, smugglers and thieves. FAC |
In the two appeals now before the court, one container load was allegedly hi-jacked in Belgium en route between Switzerland and The Netherlands in September 2011, while another allegedly lost 756 of its original 1386 cartons while parked overnight contrary to express instructions near Copenhagen en route between Hungar... |
The consignors are claiming against English main contractors who undertook responsibility for the carriage and against sub-contractors in whose hands the cigarettes were when the alleged losses occurred. FAC |
The carriage was subject to the Convention on the Contract for the International Carriage of Goods by Road 1956 (CMR), given the force of law in the United Kingdom by the Carriage of Goods by Road Act 1965. FAC |
Although the Act only incorporates the English language version, CMR was agreed at an international level in English and French, each text being equally authentic. Ratio |
Lord Wilberforce said this about the proper approach to its interpretation in James Buchanan & Co Ltd v Babco Forwarding & Shipping (UK) Ltd [1978] AC 141, 152D-F: I think that the correct approach is to interpret the English text, which after all is likely to be used by many others than British businessmen, in a norma... |
Moreover, it is perfectly legitimate in my opinion to look for assistance, if assistance is needed, to the French text. PRE |
This is often put in the form that resort may be had to the foreign text if (and only if) the English text is ambiguous, but I think this states the rule too technically. PRE |
As Lord Diplock recently said in this House the inherent flexibility of the English (and, one may add, any) language may make it necessary for the interpreter to have recourse to a variety of aids: Carter v Bradbeer [1975] 1 WLR 1204, 1206. PRE |
There is no need to impose a preliminary test of ambiguity. Ratio |
It appears that some 55 states have ratified, or acceded or succeeded to participation in CMR, of which half are states not members of the European Union, including states as wide-spread as Azerbaijan, Kazakhstan, Kyrgystan, Jordan, Mongolia, Moldova, Morocco, Syria, Tajikistan, the former Yugoslav Republic of Macedoni... |
There is no international court to which national courts may refer issues of interpretation of CMR. Ratio |
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