Gaughran v Chief Constable of the Police Service of Northern Ireland
 UKSC 29
THE SUPREME COURT
On Appeal From:
Lord Neuberger, President
Lady Hale, Deputy President
Frank O'Donoghue QC Brian W McCartney BL Rachel Bergin
(Instructed by Fitzsimons Mallon Solicitors)
David McMillen QC Peter Coll BL
(Instructed by Crown Solicitor's Office)
Intervener (Secretary of State for the Home Department)
James Eadie QC Jonathan Moffett
(Instructed by Treasury Solicitors)
Heard on 16 October 2014
( with whom Lord Neuberger, Lady Hale and Lord Sumption agree)
This appeal relates to the right of the Police Service of Northern Ireland ("PSNI") to retain personal information and data lawfully obtained from the appellant following his arrest on 14 October 2008 for the offence of driving with excess alcohol contrary to article 16(1)(a) of the Road Traffic (Northern Ireland) Order 1995 ("the 1995 Order"). On 5 November 2008 the appellant pleaded guilty to that offence at Newry Magistrates Court. He was thus a convicted person. He was fined £50 and disqualified from driving for 12 months but no immediate or suspended custodial sentence was imposed on him. He was born on 23 August 1972 and has therefore been an adult throughout the period relevant to this appeal.
The facts are set out in the agreed statement of facts and issues and can be shortly stated. On 14 October 2008 at approximately 1.35 am the appellant was stopped at a police checkpoint. He was arrested and taken to a police station where he provided samples of breath which were found to contain 65 milligrams of alcohol per 100 millilitres of breath. That was 30 milligrams in excess of the permitted limit. On the same day the following information or data relating to the appellant was taken from him: (a) fingerprints pursuant to the statutory power in article 61 of the Police and Criminal Evidence (Northern Ireland) Order 1989 ("the 1989 Order"); (b) a photograph pursuant to the statutory power to do so under article 64A of the 1989 Order; and (c) a non-intimate DNA sample by buccal swab, pursuant to article 63 of the 1989 Order.
For the purposes of this appeal it is not disputed that the appellant's fingerprints, photograph and DNA sample were lawfully obtained by the PSNI with the consent of the appellant. I note in passing that article 61(4) of the 1989 Order permits the PSNI to take fingerprints of a person charged with a recordable offence in circumstances where he or she does not consent. Article 63(2A) of the 1989 Order permits the PSNI to take a non-intimate sample from a person detained in connection with a recordable offence in circumstances where he or she does not consent. As to photographs, by article 64A of the 1989 Order, any person lawfully detained at a police station may be photographed even without his or her consent. There is no threshold of recordable offence in relation to photographs.
As noted in para 1 above, the appellant was charged with the offence of driving with excess alcohol contrary to article 16(1)(a) of the 1995 Order, which is a recordable offence by virtue of regulation 2 of the Northern Ireland Criminal Records (Recordable Offences) Regulations 1989. He pleaded guilty to the offence on 5 November 2008 at Newry Magistrates Court and (as stated above) was fined £50 and disqualified from driving for 12 months. A DNA profile (described at paras 14 and 15 below) was subsequently taken from the DNA sample.
Schedule 1 of the Road Traffic (Northern Ireland) Order 1996 provides for a maximum penalty of six months' imprisonment for the offence of driving with excess alcohol, a maximum fine of £5,000, or both, together with an obligatory disqualification from driving for 12 months. Article 6 Table A of the Rehabilitation of Offenders (Northern Ireland) Order 1978 provides that a conviction for driving with excess alcohol is spent after the expiry of five years.
On 15 January 2009, just over two months after the appellant pleaded guilty, his solicitor wrote to the PSNI claiming that the retention of the appellant's photograph, fingerprint and DNA sample was unlawful. He requested that they be destroyed or returned to the appellant. The PSNI replied on 27 February 2009 saying that the legal consequence of the decision of the European Court of Human Rights ("ECtHR") in (" ") was a matter for the United Kingdom Government and that any changes to the law of the United Kingdom would be fully complied with by the PSNI. On 12April 2010 responsibility for the DNA and fingerprint retention policy in Northern Ireland passed to the Northern Ireland administration following the devolution of policing and justice powers from Westminster. It then became a matter for the Northern Ireland Minister of Justice and the Northern Ireland Assembly as to what legislative solution was to be introduced in Northern Ireland in response to the judgment of the Grand Chamber in Strasbourg.
In the agreed statement of facts and issues the parties identified two questions for determination in this appeal as follows. First, does the retention of the fingerprints, photograph, DNA sample and DNA profile disclose an interference with the appellant's right to respect for his private life within the meaning of article 8(1) of the European Convention on Human Rights ("ECHR"), the appellant having been convicted of a recordable offence? Second, if so, is that interference justified under article 8(2)? Those questions reflect, at least in part, the way in which the appellant's case was put on an application to the Divisional Court in Northern Ireland (Higgins, Girvan and Coghlin LJJ) for judicial review of the right of the respondent to retain the material described above (which the Divisional Court described as "the relevant data") for an indefinite period: .
In two respects the certificate granted by the Divisional Court is in somewhat different terms from the agreed statement of facts and issues, as follows:
"THE COURT CERTIFIES that the following point of law of general public importance is involved in the decision of the court.
Is the policy of the Police Service of Northern Ireland to retain indefinitely the DNA profile, fingerprints and photographs of a person convicted of a recordable offence in breach of article 8 of the ECHR?"
As can be seen, there is no reference to the DNA sample. The PSNI intends to retain the DNA sample but only until the commencement of section 9 and, with it, Schedule 2 of the Criminal Justice Act (Northern Ireland) 2013 ("the 2013 Act"). These provisions have yet to come into force but are expected to do so in the comparatively near future. When they do come into force, Schedule 2 of the 2013 Act provides for the insertion of a new article 63P into the 1989 Order. Article 63P(2) requires the destruction of all DNA samples as soon as a DNA profile has been taken or within six months of the taking of the DNA sample. It will not therefore be possible to retain the appellant's DNA sample once section 9 and Schedule 2 of the 2013 Act come into force. In these circumstances the appeal was argued on the assumption that the appellant's DNA sample will not be retained. The appeal is thus concerned with the PSNI's policy with regard (a) to the retention of a convicted person's DNA profile and fingerprints, which I will refer to as his or her biometric data, and (b) to the retention of any photograph taken of him or her by the PSNI as described below.
The PSNI continues to retain and intends to retain indefinitely within its records the DNA profile, fingerprints and photograph relating to the appellant that were taken from him on 14 October 2008. The appellant says that it cannot lawfully do so.
Pending the coming into force of the 2013 Act, which will broadly bring the position in Northern Ireland into line with the current position in England and Wales, the statutory position in Northern Ireland is as it was at the time of the decision of the ECtHR in .
Article 64(lA) of the 1989 Order, as amended by the Police and Criminal Evidence (Amendment) (Northern Ireland) Order 2007 ("the 2007 Order") provides a general permission to the PSNI to retain fingerprints and samples after they have fulfilled the purposes for which they were taken. The use to which such fingerprints and samples may be put is, however, curtailed by article 64(lA) of the 1989 Order. The fingerprints and samples must not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence, the conduct of a prosecution or the identification of a deceased person or of the person from whom a body part came. Article 64A(4) of the 1989 Order permits photographs relating to a person photographed to be retained by the police but it can only be used for a purpose permitted by statute.
These amendments to the Police and Criminal Evidence Act 1984 ("PACE") were introduced by the Protection of Freedoms Act 2012 in the light of the decision of the ECtHR in . Section 63I of PACE now provides that fingerprints and a DNA profile (derived from a DNA sample) taken from a person convicted of a recordable offence may be retained indefinitely. Section 63K provides that where (i) the person convicted is under the age of 18 years at the time of the offence, (ii) the offence is a "minor" recordable offence (meaning an offence which neither attracts a custodial sentence of more than five years nor is a "qualifying offence" as defined in section 65A), and (iii) the person has not previously been...
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