Human rights

Police - Declarations of incompatibility - DNA samples - Fingerprints

R (on the application of GC) v Commissioner of Police of the Metropolis: R (on the application of C) v Commissioner of Police of the Metropolis: SC (Justices of the Supreme Court: Lords Phillips (president), Rodger, Brown, Judge, Kerr, Dyson, Lady Hale): 18 May 2011

The appellants (C) appealed against a decision ([2010] EWHC 2225 (Admin), [2010] HRLR 34) to refuse their ­applications for judicial review of the indefinite retention of their biometric data by the respondent police ­commissioner.

C had given biometric samples during police investigations.

They were not convicted of any offence and they subsequently sought destruction of the samples.

The commissioner refused their requests pursuant to the policy of the Association of Chief Police Officers (ACPO) to retain biometric samples for an indefinite period save in exceptional circumstances.

That policy had been adopted following the introduction of section 64(1A) of the Police and Criminal Evidence Act 1984.

The House of Lords had earlier decided in R (on the application of S) v Chief Constable of South Yorkshire [2004] UKHL 39, [2004] 1 WLR 2196 that such retention of data was compatible with article 8 of the European Convention on Human Rights 1950.

C issued proceedings on the ground that retention was incompatible with their article 8 rights in light of the decision of the European Court of Human Rights in S v United Kingdom (30562/04) [2009] 48 EHRR 50 ECHR (Grand Chamber) to that effect.

The Divisional Court recognised that there was an irreconcilable conflict between R(S) and S v UK, but also that R(S) was binding upon it.

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All parties agreed that, in light of S v UK, the indefinite retention of data was incompatible with article 8 rights.

The Supreme Court considered whether the appropriate remedy was to grant a declaration of incompatibility in respect of section 64(1A), to grant a declaration that the retention of data was unlawful, to quash the ACPO guidelines, or to order the reconsideration of the retention of C’s data.

Held: (Lord Rodger and Lord Brown dissenting as to the appropriate relief) (1) In light of S v UK, R(S) could not stand, S v UK applied, R(S) not followed (see paragraph 15 of judgment).

(2) No declaration of incompatibility would be made in respect of section 64(1A).

It had not been parliament’s intention that, save in exceptional cases, data taken from all suspects should be retained indefinitely.

It had intended to remove the former obligation to destroy data as soon as practicable after the conclusion of proceedings if a suspect was cleared, to create a scheme for the retention of data whether or not a suspect was cleared, and that such data was to be retained so that it might be used in the prevention or detection of crime.

To promote those purposes, parliament must have intended that an extended database should be created.

However, to conclude from that that parliament had intended that data should be retained indefinitely in all cases was a non sequitur.

Had it intended to require the police to devise a scheme including an obligation that data from all suspects be retained indefinitely, it would have expressly stated that, rather than granting an apparently unfettered discretion.

The statute was silent as to how the statutory purposes were to be fulfilled.

It permitted a policy which was less far-reaching than the ACPO guidelines, was compatible with article 8 and nevertheless promoted the statutory purposes.

Accordingly, it was possible to read section 64(1A) in a way compatible with article 8, and section 6(2)(b) of the Human Rights Act 1998 could not be invoked to defeat the claim that the ACPO guidelines were unlawful by reason of section 6(1) (paragraphs 23-26, 35).

(3) A declaration that the ACPO guidelines were unlawful would be granted.

It was unnecessary to go ­further: parliament was already ­considering the matter, and it could be appropriate, in cases concerning issues of public importance where national authorities enjoyed discretion, to leave the legislature a reasonable period to address those issues, Greens v United Kingdom (60041/08) Times, 24 November 2010 ECHR applied.

Nor would it be appropriate to order the destruction of data which could possibly be lawfully retained under a new scheme ­(paragraphs 46-48).

Appeals allowed.

Stephen Cragg, Azeem Suterwalla (instructed by Fisher Meredith) for the first appellant; Michael Fordham QC, Dan Squires (instructed by Public Law Solicitors) for the second appellant; Lord Pannick QC, Jason Beer (instructed by in-house solicitor) for the respondent; James Eadie QC, Jonathan Moffett (instructed by Treasury Solicitor) for the first intervener; Alex Bailin QC, Adam Sandell (instructed by in-house solicitor) for the second intervener; Karen Monaghan QC, Helen Law (instructed by in-house solicitor) for the third intervener.