Retention of DNA breaches human right to privacy, says Supreme Court

18 May 2011 by

R (on the application of GC) (FC) (Appellant) v The Commissioner of Police of the Metropolis – read judgment
A declaration has been granted by a majority in the Supreme Court that police policy of DNA retention is unlawful because it is incompatible with article 8 of the ECHR.

Guidelines under the current legislation allow destruction of DNA evidence only under “exceptional circumstances”; however police can be said to be acting unlawfully in retaining the evidence because the relevant provision of the Police and Criminal Evidence Act (PACE) should be ‘read down’ to accord with the right to privacy under the Convention.

The guidelines on DNA retention were introduced under Section 64(1A) of PACE, which provides that samples taken in connection with the investigation of an offence “may” be retained. The provision thus substituted a discretionary power for an earlier obligation in the statute to destroy data. The guidelines issued by the Association of Chief Police Officers (“ACPO”) guidelines provided that data should be destroyed only in exceptional cases.

These guidelines were challenged under Article 8  in the joined appeals R (S) v Chief Constable of the South Yorkshire Police and R (Marper) v Chief Constable of South Yorkshire Police [2004] 1 WLR 2196. The House of Lords dismissed the appeals,  ruling unanimously that the policy was justified under Article 8. In 2008 the Strasbourg Court decided that the indefinite retention of data was an unjustified interference with Article 8 – S and Marper v United Kingdom . The government passed legislation in response to this ruling but it was not passed into force following the change in government in May 2010.

The following summary is partly based on the Supreme Court press release:

The appellants had both been charged with offences and subsequently cleared of the charges or acquitted. Their requests for destruction of their DNA evidence were refused as there were no exceptional circumstances within the meaning of the ACPO guidelines. The appellants issued proceedings for judicial review of the retention of their data on grounds that, in light of the Strasbourg Court’s ruling in Marper , its retention was incompatible with their Article 8 rights. They were granted a leapfrog appeal to the Supreme Court.

It was common ground both that the House of Lords decision in Marper should be overruled and that the indefinite retention of the appellants’ data under the current retention policy was a breach of Article 8 ECHR. The only issue in these appeals was therefore what order the court should pronounce in these circumstances. However this turned on the very important and topical question of the extent to which legislation can be “read down” under  Section 3 of the Human Rights Act, and at what point that exercise crosses the forbidden line between interpretation and amendment.

The majority judgment

Appeals allowed. There was no need for a declaration of incompatibility; the section could be read down to conform with Article 8 as interpreted by the Strasbourg Court in Marper. The provision in the legislation allowing for an extended DNA database was not in itself a basis for supposing that Parliament must have intended its statutory purpose to be achieved in a disproportionate way so as to be incompatible with article 8:[23]-[24]. The structure of the new section 64 was “strongly suggestive” of an intention to devise a scheme that would respond to developments in this field, not least any view that might be taken as to the human rights implications that might come to be recognised.[88]

The dissent (Lords Rodger and Brown)

They would have dismissed the appeals. It was not possible  for the courts to interpret the provision without crossing the line between interpretation (required by the HRA) and amendment (which only Parliament could do). Parliament’s purpose in enacting section 64(1A) was to ensure that in future samples taken from suspects would be retained indefinitely and so facilitate the detection and prosecution of the perpetrators of crimes: [94]-[97]. Therefore, the police did not have a completely uncontrolled discretion to retain or destroy as contended for by the appellants; the executive never has no such unfettered discretion under a statute (Padfield). The police were bound to exercise the power given to them by section 64(1A) in order to promote the policy and objective of the Act, in other words, to aid the detection and prosecution of the perpetrators of crimes. They therefore had no choice but to retain the data: [108]-[109]. Since, under current legislation, the police could not have acted differently in substance, what they did and what they continue to do, fell within section 6(2)(a) or section 6(2)(b) HRA and was lawful: [119].

A full analysis of this decision will follow shortly.

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  1. Stephen says:

    When the courts make decisions which are so clearly opposed to the view of the majority of the population then they risk that the majority will seek to remove the courts power

    Surely that is the function of any court that defends liberty, to make its decision on principle and not on the baying of the mob. The same mob that would chererfully rape the innocent person of his DNA would also support the frequent use of the death penalty, not withstanding the numerous examples of miscarriage of justice, and would excuse the use of torture to coerce confessions. If something is wrong then it is wrong. Taking the DNA of the innocent is unspeakably wrong. It doesn’t become any less wrong because you can find a large number of people to support it.

    1. Tony Baverstock says:

      If something is wrong then it is wrong.

      Who said it is wrong?

      Is your belief in right and wrong based on some religious conviction?

      Or are you just saying it’s wrong because that’s your view.

      Am I not entitled to a view? My view is there are good grounds for retaining DNA.

      Until some higher authority gives a definitive answer I think both views, are what they are views.

      If we then need to decide which view to follow surely the will of the majority should normally be respected? After all is that not how a democracy works.

      Or for you does democracy only work when it agrees with your views?

      The view of a court in these matters is just their view, unless they have access to a direct line to some form of higher authority they are not telling us about, it would be sensible to follow the view of the majority unless they have some very good reason for failing to do so.

      As for the mob not sure who you mean, do you mean the people of this fair country?

  2. Tony Baverstock says:

    This decision and the posts show every thing that is wrong with the current structure of UK human rights legislation. The court and the comments on here suggest that the decision was obvious but I will take a bet that if the same question was put to the general public a large percentage would come to completely the opposite opinion.

    Their argument would be that if keeping DNA on file increased the chances of criminals being caught and therefore reduced the risk of crime then it should be retained. Most of the same people would also willingly give DNA samples because they know they will not be committing any crimes.

    When the courts make decisions which are so clearly opposed to the view of the majority of the population then they risk that the majority will seek to remove the courts power. I am confident in a referendum today you would get a majority to repeal the ECHR from UK law and to repudiate our treaty obligation.

    This is dangerous. I believe we need the ECHR to protect us from the power of the state but the current structure and decision making increases the likelihood that rather than review the structures to give the process more legitimacy we will simple abandon the protection it offers. A case of throwing the baby out with the bath water.

    As to whether the court could have come to a different decision, the answer is clearly yes. Indeed, I would argue this decision was clearly at odds with precedent.

    The Strasburg court has already set precedent that your rights can be restricted where the restriction is to the benefit of society as a whole. Since the precedent case concerned direct criminal proceedings not just the passive retention of data. I would suggest it clearly shows if the retention of DNA data would be of benefit to society by catching more criminals and reducing crime the benefits out weight the loss of rights. Further, the case was decided without any examination of any evidence as to whether the benefit to society was supported by empirical evidence. So there is no need even to prove the benefit to society just a general view that it does benefit society should be sufficient.

  3. John Dowdle says:

    Obiter J: it is not the length of a chief police officer’s foot that counts but the length of his boot! Now, that is what I call real Equity Law. Ah, the “good old days” !!

  4. ObiterJ says:

    There is much to be said for the minority view which reflects the view Parliament must have held at the time it enacted the original retention rules. Marper requires new rules but they have not yet been enacted. The Protection of Freedoms Bill contains new rules.

    Having said this, many dislike the fact that the guidance on retention comes from ACPO. Guidance on matters to do with legislation ought to come from either Parliament or Ministers who are accountable to Parliament.

    Interestingly, Damian Green had his profile removed. How are the “exceptional circumstances” defined? Apart from him being an MP what was exceptional in his case? The lack of definition of “exceptional” is very concerning – it all seems to depend on the length of the Chief Constable’s foot !!

  5. It also abrogates Art 14. Three years after Marper the UK government has still dragged it’s feet over implementing deletion – which MUST be totally independent and transparent, verifiable by an outside agency. Who now believes the police? With their track record of mendacity

  6. Tara Davison says:

    Why has this so obvious judgment cost the tax payer so much money.

    Whoever is responsible in the Police for causing this vainglorious cost to the tax payer whilst hounding innocent people without justification should be dismissed.

    Obviously it is against a citizens human rights for the Police to hold DNA evidence. In my view the collection of DNA is an affront to freedom in every possible way. Not just to those proven innocent but to anyone not accused of a violent crime.

    The police can take DNA from persons suspected of any financial crime. I say suspected and I mean suspected.

    No-one should have the power to terrorize and persecute the innocent and suspects. DNA should be taken only where it is necessary to prove a crime or following conviction of a crime of violence. And only then with a Court Order.

    We need to claim back our Human Rights. This is not the Country I grew up in.

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