JR 27’s Application (No 1)

JurisdictionNorthern Ireland
JudgeMcCloskey J
Judgment Date08 February 2010
Neutral Citation[2010] NIQB 12
Date08 February 2010
CourtQueen's Bench Division (Northern Ireland)
Neutral Citation No. [2010] NIQB 12 Ref:
Judgment: approved by the Court for handing down Delivered:
(subject to editorial corrections)*
Before Morgan LCJ , Weatherup J and McCloskey J
[1] The sole issue addressed in this judgment is whether these proceedings
constitute a criminal cause or matter.
[2] This is an application for judicial review by a litigant to whom anonymity has
been granted, by virtue of his age. The factual matrix, which is uncontentious, can
be stated in brief compass. The Applicant is aged fourteen years. On 7th October
2008, he was arrested by the police by reason of his suspected involvement in a
burglary. At the police station, in the presence of his solicitor, he was interviewed.
Following interview, the Applicant provided two DNA samples and fingerprints
and he was photographed (hereinafter described as “the impugned measures”). He
neither consented nor objected to the impugned measures. Several weeks later, the
Public Prosecution Service intimated that the Applicant would not be prosecuted.
[3] Next, by letter dated 18th December 2008, the Applicant’s solicitors requested
the police to remove from all relevant data bases and to destroy the following items:
(a) The DNA samples taken from the Applicant.
(b) All information whether cellular, electronic, digital or in whatever
format originating from the DNA samples.
(c) The Applicant’s fingerprints.
(d) All physical and digital photographs of the Applicant.
This letter also requested “a written undertaking that the Chief Constable will not retain
any of the above information in any format whatsoever after [its] destruction”. The letter
enclosed a copy of the decision of the European Court of Human Rights in S and
Marper –v- The United Kingdom [Applications Nos. 30562/04 and 30566/04, 4th
December 2008].
[4] This elicited a response on behalf of the Chief Constable, by letter dated 15th
January 2009, containing the following material passage:
The implementation of this judgment is a matter for the
United Kingdom Government. It is anticipated that
amendments will be made to the relevant legislation in due
course. However, it is not possible at this stage to be
certain what those amendments will be. In the meantime,
the PSNI is obliged to act in accordance with the provisions
of the Police and Criminal Evidence (Northern Ireland)
Order 1989. These provisions do not require us to destroy
any DNA or fingerprint samples currently held …
Accordingly, when any changes are made to the relevant
legislation, the PSNI shall comply with them in full. In the
meantime, pending any such legislative amendments, it is
not possible for the PSNI to accede to the requests set out in
your letter.
The refusal enshrined in this letter (which makes no mention of the Applicant’s
photographs) stimulated the present application for judicial review. When this
matter was heard, counsel for the Applicant (Mr. O’Rourke, appearing with Mr.
Hutton) confirmed unequivocally that the subject of the challenge is the retention of
the DNA samples, fingerprints and photographs of his client. As the above résumé
makes clear, the Respondent in this matter is the Chief Constable of the Police
Service for Northern Ireland (for whom Mr. McMillen of counsel appeared).
[5] The course of these proceedings to date is as follows:
(a) On 13th March 2009, a single judge of the High Court granted leave to
apply for judicial review.
(b) On 2nd June 2009, there was a hearing before two judges of the High
Court. On 5th June 2009, in a reserved ruling, the judges reached
differing conclusions on the question of whether this is a criminal
cause or matter.
(c) On 12th June 2009, the court made an order of interim relief, whereby
the Respondent was permitted to retain the relevant materials but was
forbidden from making any further use of them, pending the final
determination of the court.
(d) Subsequently, a court composed of three judges of the High Court was
convened. This court acceded to the Respondent's request that the
substantive hearing of this matter be deferred for a period, given the
advanced stage which the process designed to culminate in new
legislation, in response to the decision in S and Marper, is said to have
reached. (See paragraph [10], infra).
(e) At this interim stage, the same chamber of three judges has convened
for the sole purpose of deciding the criminal cause or matter issue.
[6] The text of the statutory powers which the Respondent purported to exercise
in carrying out the impugned measures is set out in full in an appendix to this
judgment. The relevant statutory provisions are arranged in Articles 61-64A of the
Police and Criminal Evidence (Northern Ireland) Order 1989, as amended (“PACE).
These have been the subject of amendment on more than one occasion since their
inception, to the extent that they now differ quite substantially from their original
predecessors. Within these provisions are found the police powers relating to the
taking, destruction and retention of a person’s fingerprints, DNA samples (both
intimate and non-intimate) and photographs. The exercise of the retention powers
lies at the heart of both the Applicant’s substantive challenge and the issue
determined by this judgment..
Fingerprints: Summary
[7] Article 61 of PACE, as amended, provides that the fingerprints of an arrested
person may be taken without consent if he has been arrested for a recordable
offence; or if he has been charged with a recordable offence or informed that he will
be reported for such an offence; or if he has been convicted of a recordable offence or
cautioned in respect of a recordable offence which he has admitted; or if it is
reasonably suspected that he is committing or attempting to commit an offence or
has committed or attempted to commit an offence and certain other conditions are

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