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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