R (GC) and Another v Commissioner of Police of The Metropolis

JurisdictionEngland & Wales
JudgeLORD KERR,LORD DYSON,LORD JUDGE,LORD RODGER,LADY HALE,LORD PHILLIPS,LORD BROWN
Judgment Date18 May 2011
Neutral Citation[2011] UKSC 21
Date18 May 2011
CourtSupreme Court

[2011] UKSC 21

THE SUPREME COURT

Easter Term

On appeal from: [2010] ALL ER D 174

before

Lord Phillips, President

Lord Rodger

Lady Hale

Lord Brown

Lord Judge

Lord Kerr

Lord Dyson

R (on the application of GC) (FC)
(Appellant)
and
The Commissioner of Police of the Metropolis
(Respondent)
R (on the application of C) (FC)
(Appellant)
and
Commissioner of Police of the Metropolis
(Respondent)

Appellant (GC)

Stephen Cragg

Azeem Suterwalla

(Instructed by Fisher Meredith LLP)

Respondent

Lord Pannick QC

Jason Beer

(Instructed by Metropolitan Police Directorate of Legal Services)

Appellant (C)

Michael Fordham QC

Dan Squires

(Instructed by Public Law Solicitors)

Respondent

Lord Pannick QC

Jason Beer

(Instructed by Metropolitan Police Directorate of Legal Services)

Intervener (Secretary of State for the Home Department)

James Eadie QC

Jonathan Moffett

(Instructed by Treasury Solicitors)

Intervener

Karon Monaghan QC

Helen Law (Instructed by Liberty)

Intervener

Alex Bailin QC

Adam Sandell

(Instructed by Equality and Human Rights Commission)

MAJORITY JUDGMENTS ON THE APPROPRIATE RELIEF

LORD DYSON
1

Biometric data such as DNA samples, DNA profiles and fingerprints is of enormous value in the detection of crime. It sometimes enables the police to solve crimes of considerable antiquity. There can be no doubt that a national database containing the data of the entire population would lead to the conviction of persons who would otherwise escape justice. But such a database would be controversial. It is not permitted by our law. Parliament has, however, allowed the taking and retention of data from certain persons. The questions raised by these appeals are whose data may be retained and for how long.

2

Section 64 of the Police and Criminal Evidence Act 1984 ("PACE"), as originally enacted, provided:

"(1) If -

(a) fingerprints or samples are taken from a person in connection with the investigation of an offence; and

(b) he is cleared of that offence, they must be destroyed as soon as is practicable after the conclusion of the proceedings."

(3) If-

(a) fingerprints or samples are taken from a person in connection with the investigation of an offence; and

(b) that person is not suspected of having committed the offence, they must be destroyed as soon as they have fulfilled the purpose for which they were taken."

3

Section 64(1A) of PACE was enacted by section 82 of the Criminal Justice and Police Act 2001. It is still in force. It provides:

"(1A) Where—(a) fingerprints, impressions of footwear or samples are taken from a person in connection with the investigation of an offence, and (b) subsection (3) below does not require them to be destroyed, the fingerprints, impressions of footwear or samples may be retained after they have fulfilled the purposes for which they were taken but shall 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."

4

It will be seen at once that section 64(1A) does not specify any time limit for the retention of the data or any procedure to regulate its destruction. These are matters which are addressed in guidelines issued by the Association of Chief Police Officers ("the ACPO guidelines") entitled "Exceptional Case Procedure for Removal of DNA, Fingerprints and PNC Records" and published on 16 March 2006. So far as is material, these provide:

"it is important that national consistency is achieved when considering the removal of such records.

Chief Officers have the discretion to authorise the deletion of any specific data entry on the [Police National Database] 'owned' by them. They are also responsible for the authorisation of the destruction of DNA and fingerprints associated with that specific entry. It is suggested that this discretion should only be exercised in exceptional cases.

Exceptional cases will by definition be rare. They might include cases where the original arrest or sampling was found to be unlawful. Additionally, where it is established beyond doubt that no offence existed, that might, having regard to all the circumstances, be viewed as an exceptional circumstance."

5

In R (S) v Chief Constable of the South Yorkshire Police and R (Marper) v Chief Constable of the South Yorkshire Police [2004] 1 WLR 2196 ("Marper UK") the claimants sought judicial review of the retention by the police of their fingerprints and DNA samples on the grounds inter alia that it was incompatible with article 8 of the European Convention on Human Rights ("ECHR"). The majority of the House of Lords held that the retention did not constitute an interference with the claimants' article 8 rights, but they unanimously held that any interference was justified under article 8(2).

6

The ECtHR disagreed: see its decision in S and Marper v United Kingdom (2008) 48 EHRR 1169 ("Marper ECtHR"). In considering whether retention of data in accordance with the ACPO guidelines was proportionate and struck a fair balance between the competing public and private interests, the court said at para 119:

"In this respect, the Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales. 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—and retained—from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time-limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. 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 seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances."

The court concluded at para 125:

"that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society."

7

On 16 December 2008, the Secretary of the State for the Home Department announced the Government's preliminary response to the ECtHR decision. The data of children under the age of 10 would be removed from the database immediately and the Government would issue a White Paper and consult on "bringing greater flexibility and fairness into the system by stepping down some individuals over time—a differentiated approach, possibly based on age, or on risk, or on the nature of the offences involved."

8

The White Paper, "Keeping the Right People on the DNA Database", was published on 7 May 2009. It contained a series of proposals for the retention of data, the details of which are immaterial for present purposes.

9

On 28 July 2009, ACPO's Director of Information wrote to all chief constables (including the respondent Commissioner) saying that the final draft for publication of new guidelines was not expected to take effect until 2010 and that until that time "the current retention policy on fingerprints and DNA remains unchanged".

10

On 11 November 2009, after the consultation period had ended, the Secretary of State made a written ministerial statement outlining a revised set of proposals. Again, the details are not material. It was decided to include these proposals in the Crime and Security Act 2010 ("the 2010 Act") which had its first reading on 19 November 2009. The 2010 Act received the Royal Assent on 8 April 2010, but the relevant provisions (sections 14, 22 and 23) have not been brought into effect. Section 23 provides that the Secretary of State must make arrangements for a National DNA Database Strategy Board ("Database Board") to oversee the operation of the National DNA Database (section 23(1)); the Database Board must issue guidance about the immediate destruction of DNA samples and DNA profiles which are or may be retained under PACE (section 23(2)); and any chief officer of a police force in England and Wales must act in accordance with any such guidance issued (section 23(3)).

11

The Coalition Government stated in the Queen's Speech on 25 May 2010 that it intended to seek amendment of the 2010 Act by bringing forward legislative proposals (in Chapter 1 of Part 1 of the Protection of Freedoms Bill) along the lines of the Scottish system. This system permits retention of data for no more than three years if the person is suspected (but not convicted) of certain sexual or violent offences, and permits an application to be made to a Sheriff by a Chief Constable for an extension of that period (for a further period of not more than two years, although successive applications may be made): see sections 18 and 18A of the Criminal Procedure (Scotland) Act 1995, as inserted by sections 83(2) and 104 of the Police, Public Order and Criminal Justice (Scotland) Act 2006.

12

GC and C issued proceedings for judicial review of the retention of their data on the grounds that, in the light of Marper ECtHR, its retention was incompatible with their article 8...

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