JR 27’s Application (No 2)
| Jurisdiction | Northern Ireland |
| Judge | McCloskey J |
| Judgment Date | 23 December 2010 |
| Neutral Citation | [2010] NIQB 143 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 23 December 2010 |
| Year | 2010 |
1
Neutral Citation No. [2010] NIQB 143 Ref:
McCL8037
Judgment: approved by the Court for handing down Delivered:
23/12/10
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN
NORTHERN IRELAND
______
QUEEN'S BENCH DIVISION (JUDICIAL REVIEW)
________
BEFORE A DIVISIONAL COURT
________
JR 27’s Application [2010] NIQB 143
IN THE MATTER OF AN APPLICATION BY JR 27
FOR JUDICIAL REVIEW
________
JUDGMENT NO. 2
________
McCLOSKEY J
I INTRODUCTION
[1] In its earlier judgment herein (neutral citation [2010] NIQB 12), this court
ruled, by a majority, that these proceedings constitute a criminal cause or matter.
This is now the judgment of the court, to which all members have contributed, on
the substantive issues raised by the Applicant’s judicial review challenge.
II THE JUDICIAL REVIEW CHALLENGE
[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. By letter dated 21 November
2
2008, 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
3
Service for Northern Ireland (for whom Mr. Maguire QC and Mr. McMillen of
counsel appeared).
[5] The course of these proceedings to date includes the following landmarks:
(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) In its judgment delivered on 8th February 2010 – [2010] NIQB 12 – the
court ruled, by a majority, that these proceedings constitute a criminal
cause or matter.
(f) Later, this court refused the Respondent’s application for a further
adjournment. The substantive hearing ensued.
As these proceedings have progressed, a significant decision of the English
Divisional Court has materialised, on 16th July 2010: see GC and C the Commissioner
of Police of the Metropolis [2010] EWHC 2225 (Admin). The import of this decision
will be considered at a later stage in this judgment. The other development worthy
of note has been the filing of a further affidavit on behalf of the Respondent
addressing the issue of taking and retaining a photograph of the Applicant. The
substance of this aspect of the evidence will be considered presently.
II RELEVANT POLICE POWERS: STATUTORY FRAMEWORK
[6] The text of the statutory powers which the Respondent purported to exercise
in carrying out the impugned measures is somewhat prolix and, for convenience, 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)
To continue reading
Request your trial
2 cases
-
The Queen, on the Application of (1) RMC (2) FJ v Commissioner of Police of the Metropolis Secretary of State for the Home Department (Interested Party) (1) Liberty (2) Equality and Human Rights Commission (Interveners)
...of a young person such as FJ. For that purpose I would rely on the reasoning of the Northern Ireland High Court in JR 27's Application [2010] NIQB 143. In that case the court applied the "reasonable expectation of privacy" test in answering a question it formulated as follows: "does an inte......
-
The Queen (on the application of John Oldroyd Catt) (Claimant/Appellant) v The Association of Chief Police Officers of England, Wales and Northern Ireland and Another Equality and Human Rights Commission and Others (Interveners)
...the decision of the Strasbourg court in Reklos v Greece [2009] EMLR 16 and of the High Court of Northern Ireland in JR 27's Application [2010] NIQB 143, in both of which the court emphasised that a person's physical appearance forms a vital part of the personal sphere protected by article ......