Strasbourg Court rules against UK on police retention of data

26 February 2020 by Alex Ewing

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.