Gaughran’s (Fergus) Application
| Jurisdiction | Northern Ireland |
| Judge | Girvan LJ |
| Judgment Date | 13 November 2012 |
| Neutral Citation | [2012] NIQB 88 |
| Date | 13 November 2012 |
| Court | Queen's Bench Division (Northern Ireland) |
| Year | 2012 |
1
Neutral Citation No: [2012] NIQB 88 Ref: GIR 8627
Judgment: approved by the Court for handing down Delivered: 13/11/12
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
Gaughran’s (Fergus) Application [2012] NIQB 88
IN THE MATTER OF AN APPLICATION BY FERGUS GAUGHRAN FOR
JUDICIAL REVIEW
________
Higgins LJ Girvan LJ and Coghlin LJ
GIRVAN LJ (delivering the Judgment of the Court)
Introduction
[1] This is a judicial review application brought by Fergus Gaughran (“the
Applicant”) who by these proceedings challenges the right of the Police Service of
Northern Ireland (“the PSNI”) to retain for an indefinite period fingerprints, a
photograph, a DNA sample and a DNA profile (“the relevant data”) taken from him
after he was arrested on a charge of driving with excess alcohol. Unlike the situation
of parties acquitted of an offence who have successfully challenged the lawfulness of
the indefinite retention of such samples, the applicant was convicted of the offence
with which he was charged. This is the first case in which the court has been called
on to adjudicate on the lawfulness of the indefinite retention of such data following a
conviction for a criminal offence which the applicant alleges to be a relatively minor
criminal offence and which he claims is of insufficient gravity to justify indefinite
retention of the material.
[2] Mr O’Donoghue QC and Mr McCartney appeared on behalf of the applicant
and Mr McMillen QC and Mr Coll appeared for the Chief Constable of the PSNI
(“the Respondent”). The court is indebted to counsel for their written and oral
submissions on this matter which is one of some complexity.
The factual background
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[3] The applicant was stopped at a vehicle checkpoint on 14 October 2008
between Crossmaglen and Camlough, Co Armagh. He was breathalysed, arrested
and taken to a police station in Newry. A breath test was carried out at the police
station and when analysed it showed a measurement of 65mgs of alcohol per 100ml
of breath. The applicant in his grounding affidavits has asserted that he was
extremely intoxicated while in the police station although this is not borne out by the
level of the measurement. He was charged with driving with excess alcohol and
pleaded guilty to that charge at Newry Magistrates’ Court on 5 November 2008
when he was disqualified and fined.
[4] Throughout the procedures carried out in the police station the applicant was
co-operative. After the breath test was taken he was informed by another police
officer that he was required to take a photograph of the applicant and to take his
fingerprints and a DNA sample. He was informed that this was standard procedure.
He was not given any right to object either before or after those steps had been
taken. The applicant asserts that if he had understood that he did not have to
engage in the process he would have left the police station immediately without
providing the material. The DNA sample was taken by buccal swab. He was not
informed as to what would happen to the photograph, the fingerprints or the DNA
sample taken. It is the applicant’s case that he did not give informed consent to the
taking of those materials.
[5] On 15 January 2009 the applicant’s solicitors requested that the fingerprints
the photograph and DNA sample should no longer be retained. Having received no
such assurance that they would not be retained, the applicant sought leave to bring a
judicial review challenge to the respondent’s continued retention of the materials. In
these proceedings the applicant seeks:
(a) a declaration that the indefinite retention of the data was unlawful and
constituted an unjustifiable interference with his right to respect for private
life under Article 8 of the convention; and
(b) an order of prohibition preventing the respondent from making any use of the
relevant data.
The applicant had in his application sought an order of mandamus compelling the
respondent and any other relevant authority having possession of the data to
destroy the materials but Mr O’Donoghue indicated that that relief was no longer
being sought.
[6] By order of Morgan J on 3 April 2009 the applicant was granted leave to apply
for judicial review on the grounds set out in paragraphs 9(c) and (d) of the Order 53
statement. These grounds are expressed thus:
“(c) The retention of the [data] for an indefinite period
of time in the unregulated manner observed by the
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Gaughran v Chief Constable of the Police Service of Northern Ireland
...[2015] UKSC 29 THE SUPREME COURT Easter Term On Appeal From: [2012] NIQB 88 Lord Neuberger, President Lady Hale, Deputy President Lord Kerr Lord Clarke Lord Sumption Gaughran (Appellant) and Chief Constable of the Police Service of Northern Ireland (Respondent) (Northern Ireland) Appellant......
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‘Too Well-Travelled’, Not Well-Formed? The Reform of ‘Criminality Information Sharing’ in the UK
...ofPolice for the City of London [2012] EWHC 3430 (Admin); In theMatter of an Application by Fergus Gaughran for Judicial Review[2012] NIQB 88.20. See also Mark Richardson v The Chief Constable of West MidlandsPolice [2011] EWHC 773 (QB) where even a record of anunlawful arrest entails the s......
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Old Convictions Never Die, They Just Fade Away: The Permanency of Convictions and Cautions for Criminal Offences in the UK
...of Police for the City of London [2012] EWHC 3430 (Admin); In the Matter of an Application by Fergus Gaughran for Judicial Review [2012] NIQB 88. Permanency of UK Convictions and Cautions for Criminal Offences131of writing. There is one particular comment which should be made, in relation t......