R (S and another) v Chief Constable of the South Yorkshire Police
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Waller |
| Judgment Date | 12 September 2002 |
| Neutral Citation | [2002] EWCA Civ 1275 |
| Docket Number | Case No: C/2002/0880/QBACF; C/2002/0881/QBACF |
| Court | Court of Appeal (Civil Division) |
| Date | 12 September 2002 |
[2002] EWCA Civ 1275
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Mr Justice Leveson
The Lord Chief Justice of England & Wales
Lord Justice Waller and
Lord Justice Sedley
Case No: C/2002/0880/QBACF; C/2002/0881/QBACF
David Bean QC; Mr David N Jones (instructed by South Yorkshire Police solicitor) for the Chief Constable of South Yorkshire
Richard Gordon QC; Mr Stephen Cragg (instructed by Messrs Howells) for the Appellants
Rabinder Singh QC; Mr James Strachan (instructed by Treasury Solicitor) for the Secretary of State
INTRODUCTION
This judgment relates to two appeals. The appeals are against the judgment of the Divisional Court given by Leveson J on 22 March 2002 when sitting with Lord Justice Rose, Vice-President. The point that court decided was that the retention of the fingerprints and DNA samples of individuals who had not been convicted of criminal offences did not contravene either the individual's right to privacy under Article 8 or his right not to be discriminated against under Article 14 of the European Convention of Human Rights (ECHR). The Divisional Court therefore dismissed the applications for judicial review made by the appellants, who are respectively a child known as 'S' and Michael Raymond Marper.
The two cases provide further examples of the role that courts are now required to perform under the Human Rights Act 1998 of holding the balance between the rights of the individual and the rights of the State. The cases are of particular interest because in this country the public are particularly sensitive about the State unnecessarily retaining personal information about members of the public or requiring members of the public to provide information to the State without good reason. An example of the latter sensitivity being the controversy created by any proposal to require individuals to carry identity cards.
On these appeals, it is the retention of fingerprints and DNA samples which were taken during the course of criminal investigations if the prosecutions of the individuals from whom they were taken are either discontinued or result in an acquittal that is challenged. Prior to the coming into force of section 82 of the Criminal Justice and Police Act 2001 ("CJPA") on 11 May 2001 the retention of the fingerprints and samples would undoubtedly have been unlawful because of the terms of section 64 of the Police and Criminal Evidence Act 1984 ("PACE"). However, section 64 of PACE was amended by section 82 of the CJPA and the section as amended on its literal interpretation undoubtedly authorises their retention in those circumstances.
THE FACTS
The appeals are concerned with the issue of principle already identified, but the circumstances of the two cases illustrate admirably how the issue can arise. As the facts are succinctly stated in the judgment of Leveson J I gratefully adopt his account which is in these terms:
THE CASE OF 'S'
'S' is a 12 year old boy. He has no previous convictions, cautions or warnings. On 27 January 2001, following his arrest and being charged with the offence of attempted robbery, his fingerprints and DNA samples were taken. On 14 June 2001, he was acquitted. On 18 July 2001, the Principal Fingerprint Officer of South Yorkshire Police wrote what appears to be a general letter to the solicitors acting on behalf of 'S' in these terms:—
"I wish to inform you that the South Yorkshire Police will retain fingerprints and samples that were previously required to be destroyed under section 64 of the Police and Criminal Evidence Act 1984
The Criminal Justice and Police Act 2001 now gives the police the right to retain fingerprints and samples to aid crime and investigation and is retrospective.
All fingerprints and samples that were due for destruction will be retained."
It was made clear that the current procedure for the destruction of photographs and negatives had not been altered.
Presumably having received that letter, albeit making no reference to it, on 24 July 2001, the solicitors wrote specifically in connection with the case of 'S' and requested that his fingerprints and photographs be destroyed in his presence. Two days later, a letter before action was written to the Chief Constable of South Yorkshire Police contending that the retention of fingerprints constituted a breach of Article 8 of the European Convention on Human Rights and threatening that unless the fingerprints were destroyed, proceedings would be commenced for judicial review seeking a mandatory order for destruction and a declaration of incompatibility.
The solicitors wrote a further letter criticising the adoption of a blanket policy on the issue and argued that, even if the legislation was compatible with Article 8, the Chief Constable should consider the exercise of his discretion in each case deciding whether retention could be justified by Article 8(2); although not specifically mentioned, doubtless at the forefront of the solicitor's mind was the age of 'S'. In connection with that request, evidence filed by the Chief Constable makes it clear that the policy was designed for and does not extend beyond the prevention and detection of crime, the investigation of an offence or the conduct of a prosecution. By way of example of its significance and relevance even to the young, he cites the case of a juvenile, 'I', whose fingerprints and DNA were taken after his arrest for assault. No prosecution followed and his fingerprints and DNA should have been destroyed; in error they were not. Later both palm print and DNA samples from a rape implicated 'I'. Following the decision in Attorney General's Reference (No 3 of 1999), 'I' pleaded guilty to the offence of rape and was sentenced, after appeal, to 6 years' detention. The Chief Constable makes the point that no reason has been advanced for treating 'S' differently to others in a similar position.
MICHAEL MARPER
On 13 March 2001, Michael Marper (who was then 38 years of age and is of good character) was arrested and charged with harassment of his partner; his fingerprints and relevant DNA samples were taken that day. He appeared before the Court on 23 March 2001 when the case was adjourned to a pre-trial review on 3 May by which time his partner had decided not to press the charge having become reconciled with him. On 11 June, having no doubt accepted that it was no longer in the public interest to force this matter to trial, the Crown Prosecution Service wrote to his solicitors enclosing a notice of discontinuance.
On 29 June 2001, Mr Marper's solicitors wrote requesting the destruction of his fingerprints and DNA samples. Having received, dated 18 July 2001, the general letter to which I have already referred, the solicitors wrote again requesting the Chief Constable to exercise his discretion not to retain either fingerprints or samples: the response was to the effect that the position was the same as that set out in the case of 'S' i.e. that the Chief Constable had a policy to retain fingerprints and samples in all cases. In these proceedings, the Chief Constable provided an example of a case which he did consider exceptional. In March 2001 'W' had agreed to be bound over provided, specifically, that her fingerprints, photograph and DNA sample would be destroyed: having regard to the state of the law and policy at that time (which was to destroy this material in those circumstances), that assurance was given. This had not been done by the time the law was changed. When the request was repeated, because of the specific assurance in advance of the bind over, the agreement was honoured and the samples destroyed.
THE CASE FOR THE APPELLANTS
Mr Gordon QC on behalf of the appellants advances seven propositions on behalf of the appellants. They are as follows:
i) The retention of fingerprints and other samples from persons in the position of the appellants constitutes an interference with their right to respect for private life as required by Article 8(1) ECHR. ("The Article 8(1) Issue")
ii) Such interference is not "in accordance with the law" as Article 8(2) requires as the first and most basic prerequisite for justified interference that a measure of this kind (i.e. section 64 of PACE as amended) is "in accordance with the law" and for this there must be some identifiable criteria for invoking it and here there are none.
iii) Further, and in any event, the interference complained of is not necessary in a democratic society for the prevention of crime (or for any other specific aim under Article 8(2)) because it is not proportionate to the legitimate aim of preventing crime. (ii & iii together are referred to as "The Article 8(2) Issue".)
iv) The retention of samples of persons in the appellants' position discriminates, without objective justification, between different groups of members of a relatively similar class, namely between those who have never been suspected of committing a criminal offence and those who have been suspected of or charged with committing a criminal offence but never convicted of a criminal offence. As such the retention is contrary to Article 14 ECHR. ("the Article 14 Issue")
v) It would be possible to give section 64 PACE as amended "a read down or an implied Convention compatible meaning" to the extent that the Court is prepared to read in words excluding...
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