Strasbourg Court rules against UK on police retention of data

26 February 2020 by

The European Court of Human Rights in Strasbourg

Can the police indefinitely retain an individual’s DNA profile, fingerprints and photograph after they have been convicted?

That was the question before the European Court of Human Rights (ECtHR) in Gaughran v UK (no. 45245/15, ECHR 2020). This judgment — which was given for the applicant — is of interest both on the merits and as an example of the way the Court continues to approach issues of this kind.

Facts

The applicant, Mr Gaughran, was stopped at a police checkpoint in County Armagh, Northern Ireland. He was arrested on the suspicion of drink driving and taken to a police station where he was breathalysed. His photograph and fingerprints were also taken. Mr Gaughran was then charged with the offence of driving with excess alcohol – a recordable offence (an offence punishable by imprisonment).  He pleaded guilty and was fined £50 and disqualified from driving for 12 months.

Under the relevant legislation, the applicant’s conviction was spent after five years. Regardless of this fact, the policy of the Police Service of Northern Ireland (PSNI) was to retain indefinitely within its records the DNA Profile, fingerprints and photograph relating to any individual convicted of a recordable offence. The applicant claimed that this policy amounted to a disproportionate interference with the right to respect for his private and family life under article 8 and could not be justified.

What was the position of the UK courts?

The High of Court of Northern Ireland was of the view that the retention of the applicant’s biometric data interfered with his rights under article 8(1) but that it was justified under article 8(2). It found that the building up of a database of such data ‘provided a useful and proven resource in the battle against crime’ and that ‘the use to which the material can be put is severely restricted by legislation’. The policy distinguished between convicted and unconvicted persons and recordable and not recordable offences; any further differentiation between categories of convicted persons would potentially undermine the effectiveness of the process and add administrative complexity.

When the case came before the Supreme Court, Lord Clarke for the majority endorsed the position of the High Court that the retention of the data was proportionate, noting that the benefits to the public of retaining the data were potentially very considerable and outweighed any infringement of the applicant’s rights. A similar question had been before ECtHR in 2008. The judgment in S and Marper v The UK [GC], nos. 30562/04 and 30566/04, ECHR 2008 – where the Grand Chamber held that retention of DNA Profiles and fingerprints breached article 8 – was distinguished on the basis that it was concerned with retention after acquittal as opposed to conviction.

The Strasbourg Judgment

When it came to consider the issue ECtHR unsurprisingly followed S and Marper in finding that the retention of the applicant’s fingerprints and DNA Profile interfered with his private life. In deciding that the taking and retention of photographs also amounted to an interference, the Court was deciding on a novel point (S and Marper did not concern the retention of photographs).

These interferences were in accordance with the law and in pursuance of a legitimate aim. In answering the decisive question of whether they were also ‘necessary in a democratic society’ the Court, of course, acknowledged the margin of appreciation left to the national authorities in the proportionality assessment. In deciding the breadth of that margin the Court focused on two issues: the degree of European consensus and the level of judicial scrutiny.

European consensus

The UK Government argued that there was no consensus among the contracting states and that in such circumstances it should be afforded a wide margin of appreciation.

In its analysis of the regimes for the retention of DNA profiles across the different European jurisdictions the Court found that in many countries DNA data was retained until death. The UK government submitted that there was no distinction between this position and the regime in Northern Ireland under which data is retained indefinitely. After all, it argued, what practical difference does it make to an individual if their data is retained after their death?

The Court, however, did see a distinction. DNA profiles in particular allow genetic relationships to be identified and thus indefinite retention continued to have an impact on the private lives of relatives even after the death of the data subject. A distinction could therefore be drawn between destruction after death and indefinite retention.

As the UK was one of the few European countries to permit indefinite retention of the data of convicted persons the margin of appreciation owed to it was narrowed, particularly in relation to DNA profiles.

Judicial scrutiny

The UK Government pointed to the extensive amount of judicial scrutiny carried out at domestic level and argued that it was not for Strasbourg to substitute its own assessment of the merits of the case.

The Court disagreed for three reasons. First, there have been technological developments since the Supreme Court judgment: photographs taken and retained may now be susceptible to use by facial recognition software. Second, the Supreme Court laboured under the misapprehension that very few states have a process of review — which was not the case. Third, the distinction drawn by ECtHR between retention until death and indefinite retention was not made by the domestic courts. It followed that the judicial scrutiny at national level was not sufficient to alter the narrow margin of appreciation available to the UK.

Conclusion

Once the Court had delineated a narrow margin of appreciation the writing was on the wall.  Indefinite retention was the ‘most extensive power’ available and would require safeguards regulating this extensive power for the policy to be considered proportionate and within the margin of appreciation. The Court described the lack of safeguards — including that ‘the applicant’s biometric data and photographs were retained without reference to the seriousness of his offence’ and that the opportunity to review available to the individual ‘would appear to be so narrow as to be almost hypothetical’ — before holding that the policy was disproportionate and in violation of article 8. 

Comment

This case is of interest for the way in which the Court extended the notion of ‘private life’ to include the taking and retention of photographs and for its focus on the private life of individuals biologically related to the data subject. More broadly, it provides another example of recourse to the margin of appreciation to allow the Court to navigate its way through a sensitive area.

A supranational court has to avoid being seen as a court of further appeal; states are understandably protective about matters linked to the prevention of crime and, rightly or wrongly, sympathy for those convicted of more serious offences is scarce. The approach seen in the present case allows the Court to undertake a review while ostensibly avoiding substituting its own judgment on the merits of the case. The idea of a ‘European consensus’ serves to legitimise the Court’s inquiry: it is not substituting its judgment but simply enforcing European norms. The focus on ‘judicial scrutiny’, meanwhile, is intended to be consonant with procedural review of the state’s compliance with human rights rather than any merits review.

Such an approach can be problematic, as is illustrated by the present case. The factors relevant to the delineation of the margin of appreciation seem to be determined on an almost ad hoc basis. The distinction between retention until death and indefinite retention seems a flimsy basis for narrowing the margin in the present case, as does potential technological developments with regard to facial recognition. The Court’s reasoning in terms of the lack of safeguards in the regime is persuasive, but it is in direct opposition to the views of the Supreme Court and it would be hoped that the justification for such an outcome would be more extensive than a criticism of the domestic court’s understanding of the comparative position.

In affording states a margin of appreciation, the Court is recognising the proper limits of its role and it cannot simply cloak substantive review in the language of subsidiarity. It may be argued, however, that an undue focus on the margin of appreciation can, as in this case, give rise to a risk of the Court not engaging fully with the issues in a way which removes some of the force from its reasoning.

In its efforts to avoid being seen engaging in the substantive merits of the case, it is arguable that Strasbourg has not engaged with the full merits of a complex issue. It may be that the point has been reached where the Court considers that the indefinite retention of date is per se a breach of article 8 in the absence of certain safeguards, but because of an undue focus on the margin of appreciation, this point may have been reached without the Court fully engaging with some of the arguments accepted by the Supreme Court.

Whether such criticisms are justified or not it is unlikely the Court will change its approach. In the ‘age of subsidiarity’ the likelihood is that there will be more judgments with extensive focus on the margin of appreciation principle, not fewer. Whether this affects the substantive human rights protection offered by the ECHR remains to be seen.  

Alex Ewing worked at the Council of Europe in Strasbourg and is currently a teaching assistant at the University of Glasgow. He is a regular contributor to the Blog about cases from the European Court of Human Rights.

4 comments


  1. How is it even possible to know if have complied with this ruling, never mind enforcement?

  2. on a related issue, even though they have me in the facial recognition database, probably chipped, DNA and fingerprints…..I don’t have state sanctioned photo ID! Which means I can’t live and work in this country for last 14 years now…I was born here, forced to survive as a slave to pedophiles…..quite clearly violates the law, but how can I file my loss of earnings claim when it is illegal for a lawyer to even speak to me?

  3. Tara Sanderson says:

    I am thrilled to hear about this judgment and of course await its implications as applied in the law in all of the UK more widely. Very grateful for the article.

  4. I thought this was settled at Strasbourg over a decade ago? I distinctly remember hearing about that…..

    How did the victim here even know as so called police refuse to give out information of any kind?

    & thirdly….surely it’s irrelevant as he has a driving license…and ALL govt sanctioned photo ID is in the facial recognition database?

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: