Updated, 1/9/10 | R (C) v Commissioner of the Police of the Metropolis  WLR (D) 193 – Read judgment
When faced with conflicting authorities from the European Court of Human Rights and the House of Lords (now the Supreme Court) on the indefinite retention of DNA profiles and fingerprints by the police, the Divisional Court held that they were bound to follow the House of Lords.
This was so despite clear indications from the previous and current governments that the law would be changed to take account of the Strasbourg decision. However, as leave to appeal was granted, the Supreme Court will now have the opportunity to revisit the issue and determine the law in this controversial area.
The Claimants, GC and C, sought judicial review of the decision of the Defendant, the Commissioner of the Metropolitan Police, to retain their DNA profiles and fingerprints on the Police National Computer even though they had not been convicted of any crime. They argued that the Divisional Court should give effect to the Strasbourg decision in S and Marper v United Kingdom (30562/04) (2009) 48 EHRR 50, which held the blanket and indiscriminate nature of the powers given to the police to retain such information was contrary to Article 8 ECHR (the right to respect for privacy and family life). The Defendant, supported by the Home Secretary as an Interested Party, argued that the Divisional Court was bound by the doctrine of precedent to follow the earlier House of Lords decision in R (S) v Chief Constable of South Yorkshire (2004) UKHL 39, where the same policy of retention was found not to contravene article 8.
The Claimants drew on three factors in support of their position: first, that the parties in the cases before the House of Lords and the Strasbourg court were the same; second, that the Labour and Coalition governments had both indicated that legislation would be introduced to reflect the decision of the European Court; third, that the case involved Convention rights and the associated concept of proportionality, principles that derived from the ECHR. All of these factors, they argued, militated in favour of following the Strasbourg decision rather than that of the House of Lords.
In his leading judgment, Moses LJ said that he had decided the case on the issue of precedent, rather than the substantive merits. In his view, the relevant principles were established by Lord Bingham in Kay v Lambeth Borough Council  2 AC 465 , in which it was held that the doctrine of precedent required the domestic courts to follow a House of Lords decision where there was a conflict between that authority and a judgment of the Strasbourg Court. This was so despite the matters raised by the Claimants. This approach was the same as that taken by the Northern Ireland Court of Appeal in the case of McCaughey and Quinn’s Application  NICA 13, the subject of an earlier blog.
While finding for the Defendant, the Court granted leave (with the agreement of all parties) for a “leapfrog” appeal to the Supreme Court. Moses LJ said that the issue of the propriety of retaining DNA and fingerprints needed to be addressed, and hence the courts should not wait for the anticipated legislation, there being no certainty when, what or whether such legislation would be passed.
The granting of leave means that the Supreme Court will have an opportunity to revisit this question in light of the Strasbourg ruling. Most immediately, this opens up the prospect of a change in the law in this contentious area. However, it also raises the question of the extent to which decisions of the Strasbourg Court shape the law of the United Kingdom. As has been noted in several recent blogs, a number of senior judicial figures have expressed concern about what they see as the unwarranted encroachment of Strasbourg into areas best determined by the domestic courts. It will be interesting to see whether the retention of DNA is an issue on which the Supreme Court seeks to make a stand on this point.
Update, 01/09/10: See our follow-up post