Courts entitled to ignore European DNA and fingerprints ruling… for now

1 September 2010 by

R (C) v Commissioner of the Police of the Metropolis [2010] WLR (D) 193 – Read judgment

Last month, Matt Hill posted on a case relating to the retention of DNA profiles and fingerprints by the police, for which the full judgment is finally available. Permission has been granted for an appeal directly to the Supreme Court, and the outcome of that appeal may have interesting implications for the status of European Court of Human Rights decisions in domestic law.

It is worth revisiting the decision in order to extract some of the principles, as although not novel, they do highlight the difficulties for claimants who have taken a case to the European Court of Human Rights and won, but who are still waiting for their decision to be implemented by the UK government.

The issue, as put by Lord Justice Moses was

whether this court is bound by the decision of the House of Lords [now the Supreme Court] in Marper or is free to follow the decision of the European Court of Human Rights in S and Marper. There is no dispute but that those two decisions cannot be reconciled.

When the appeal reached the UK’s highest court, the House of Lords had been “unanimous in concluding that any interference was justified for the purposes of Article 8(2). It was in accordance with the law and was proportionate.”

The decision was appealed to the European Court of Human Rights, which disagreed with the House of Lords, findingthe blanket and indiscriminate nature of the powers of the retention of biometric samples failed to strike a fair balance between the competing public and private interests and that the United Kingdom had “overstepped any acceptable margin of appreciation in this regard” (see paragraph 125)””

The claimants went back to the High Court, arguing that the European Court of Human Rights decision put a different complexion on the matter, and the issue should be revisited. In the judgment, Lord Justice Moses made clear that the UK courts were “bound by the decision of the House of Lords. The doctrine of precedent and the legal certainty which that doctrine protects demands that this court follows the decision in S and Marper.” He quoted and approved the statement of Lord Bingham in  K & Ors v Lambeth Borough Council explaining why the doctrine of precedent must operate in this way:

There is a more fundamental reason for adhering to our domestic rule. The effective implementation of the Convention depends on constructive collaboration between the Strasbourg court and the national courts of member states. The Strasbourg court authoritatively expounds the interpretation of the rights embodied in the Convention and its protocols, as it must if the Convention is to be uniformly understood by all member states. But in its decisions on particular cases the Strasbourg court accords a margin of appreciation, often generous, to the decisions of national authorities and attaches much importance to the peculiar facts of the case. Thus it is for national authorities, including national courts particularly, to decide in the first instance how the principles expounded in Strasbourg should be applied in the special context of national legislation, law, practice and social and other conditions. It is by the decisions of national courts that the domestic standard must be initially set, and to those decisions the ordinary rules of precedent should apply.

The applicants argued that their case represents an exception to the general rule, as, amongst other things, “the doctrine of precedent operates differently in relation to questions concerning proportionality and exercise of a discretion”. In other words, in human rights cases it should be – in exceptional scenarios – be open for a lower domestic court to prefer a European Court of Human Rights decision. Lord Justice Moses entirely disagreed:

I am unable to see how that affords any ground for distinction. Of course it was open to chief officers of police, albeit unlikely, to follow the lead set by the European Court of Human Rights and change the policy following the promulgation of the decision in Marper in Strasbourg. But no Chief of Police decided to adopt that course. There was no change in the circumstances, nor materially in the policy which formed the subject matter of the decision in the House of Lords. There was no change in the circumstances which could have made any difference to the House of Lords consideration of the justification for the policy. All that had happened was the decision of the European Court of Human Rights. Even if there had been a change in circumstances that, in my view, would be a matter for the Supreme Court and not for this court.

So far, so predictable. It was highly unlikely that a judge in the High Court would suddenly reverse the basic doctrine of precedent, therefore effectively making the European Court of Human Rights our highest court on human rights issues. However, interestingly, Lord Justice Moses went on to grant permission to appeal directly to the Supreme Court (a ‘leapfrog’ appeal, which bypasses the Court of Appeal), an appeal which he made clear was far from a foregone conclusion:

No one can properly predict the conclusion that the Supreme Court might reach. It is far from a foregone conclusion. In particular the Supreme Court will have to consider the relevance of the government’s contention that continuing the policy at the moment is merely temporary, pending the introduction of new legislation, which will take into account the decision of the European Court of Human Rights and their contention that time should be given to make such changes in an area of great public concern, where legitimate views as to retention and use of biometric data may differ.

In other words, watch this space. If the government fails to change the law in time, this case could see the Supreme Court flexing its judicial muscle in order to give lower courts stronger powers in order to encourage the government to implement European human rights judgments. As Matt Hill said in his post, this case “raises the question of the extent to which decisions of the Strasbourg Court shape the law of the United Kingdom.” This is an important issue, particularly given that some decisions of the Strasbourg-based court have languished unimplemented for years, notably relating to prisoners being banned from voting.

Senior Supreme Court justices have been intimating recently that human rights law has special status in UK law. The court’s president, Lord Phillips, called the Human Rights Act a “constitutional statute, and his deputy Lord Hope has argued that no government would have the power to remove human rights protections, even if it wanted to. As such, if there is to be any kind of constitutional confrontation between the new highest court and the government, it seems likely to be in relation to a human rights issue. Of course, this may not be that issue and the Supreme Court may just follow Lord Bingham in Kay v Lambeth. But it will be an interesting debate.

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7 comments


  1. Ian Orlebar says:

    The judicio-political question surely is whether the “Supreme Court” has got the balls to become a true constitutional court or whether it is still the Appellate Committee of the HoL poodle of the executive of the day simply masquerading under a different name?

    National sovereignty (ie: the Royal Prerogative in the context of the UK) does NOT confer absolute power. Parliament surrendered any putative claim to absolute power by accession in 1951 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) pursuant to its membership of the Council of Europe. Such membership is now a mandatory requirement of participation in the European Union.

    Inter alia, it follows a fortiori that “business as usual” by the State and/or any/all of its minions and his/their servants in continuation of intentional violation of ECHR contrary to the judgments of the ECtHR and failure to implement the advice of the Committee of Ministers even pro tem breaches fundamental treaty obligations, is ultra vires at every level, and inherently tortiously violates the ECHR rights of that(those) person(s) and/or class(es) of Her Majesty’s subjects who are so victimised.

  2. xueta says:

    The deadline for a follow up to Marper is on 1st October 2010, it has been postponed four times since March. The U.K is dragging it’s heels on this, typical of a bad lloser.

  3. kevin says:

    On 1st nov 08 I unwittingly accepted a caution from a police constable for my part in a very minor altercation with a group of teenagers,one of whom grossly exagerated his story.I had up until that point,never been in trouble with the law and had much respect for the police.So feeling very intimidated by all proceedings and without much say in the matter, agreed to have my dna and fingerprints taken.Well over two years have passed since the incident was recorded as it had taken seven months of hounding my family over the phone, culminating in the threat of arrest if I did not attend a police station.looking back now I may as well have been because I feel criminalised.Holding dna and fingerprints is unfair and injust.Message to europe: when will the people of GB get their human rights back from this police state.

  4. robert says:

    The interpretation of the ‘margin of appreciation’ seems ass-backwards to me. The margin is used by the ECtHR in determining their decision, not used by countries to decide whether to follow rulings by that court. If that were the case, the political pressure to ignore or ‘re-interpret’ rulings would make a mockery of justice.

    1. John Hirst says:

      I would blame Charles Falconer for adopting this cackhanded interpretation of the margin of appreciation.

  5. John Hirst says:

    In my view, LORD JUSTICE MOSES and MR JUSTICE WYN WILLIAMS decided wrongly and should have followed the ECtHR judgment.

    It would appear that nobody has yet raised the point that ACPO is a private company. Why is the public police force being guided by a private company?

    1. Ian Orlebar says:

      Good morning John,

      I am on the point of filing against Devon & Cornwall Constabulary, and intend deploying the following argument (extract from further detail letter to my Letter of Claim):

      6.6 With regard to retention of SPD, the Intended 1st Claimant will allege i.a. that the advice relied upon by the Intended Defendant in refusing to comply with judgment 215 [GC] is fundamentally flawed, and further that the “guidelines” with which he purports to comply are inherently unlawful, falling within the ambit i.a. of the tort of conspiracy to use unlawful means with or without intent to harm or injure (Letter of Claim para 9.2).

      The “guidelines” emanate from a private company commonly known by the acronym ACPO, in which the Intended Defendant is a vested-interest shareholder, which has no statutory status or power, and which despite its alleged non-profit status derives huge surplus cash revenues (c. £18 million in 2008) from the illegal sale or supply for cash profit (re-invested or otherwise) or other valuable consideration of SPD harvested from a class of Her Majesty’s subjects, namely those of complete innocence of the suspicion (whether contemporaneously held to be reasonable, or otherwise) upon which they were arrested by the servants of the Intended Defendant and others of his ilk by resort to unlawful means on the part of its vested-interest shareholders either in common or jointly and severally (torts of conspiracy and/or conversion (trover) and/or conversion under duress with concomitant trespass to the person).

      It will be contended that SPD replicated or otherwise in any form sold and/or supplied to third parties for financial profit, revenue, or other consideration of any nature become by that process traded goods if not already inherently so.

      To the extent that the Torts (Interference with Goods) Act 1977 (T(IwG)A 77) replaces, extends, and incorporates the former tort of Detinue, it is further alleged that the Intended Defendant is in intentional and/or negligent breach of his statutory duty thereunder to yield up and return goods which he has unlawfully converted (tort of trover and/or conversion under duress) to their lawful owner/sole copyright holder upon demand and has accrued unjust enrichment of the private company ACPO and/or its subsidiaries or associates of any nature from the sale or supply thereof to all/any 3rd parties (torts: conversion of goods and/or trespass to goods and/or negligence so far that it results in damage to goods or an interest in goods, conspiracy, et al).

      6.7 The Intended 1st Claimant seeks Full & Frank Disclosure of all data in rei the involvement of the Intended Defendant in the activities of the private company ACPO in which he is a vested-interest shareholder and all/any related peripheral activities, including but not limited to the Intended Defendant’s spurious claim to ownership of the body cells of the Intended 1st Claimant and SPD derived therefrom, which is denied (torts of conspiracy and/or conversion under duress and/or unjust enrichment and/or intentional/negligent infliction of severe emotional distress).

      The Intended 1st Claimant will seek damages, both ordinary and aggravated as evidenced i.a. by the intentionally and/or negligently unlawful nature of his wrongful arrest and the consequential sequellæ thereof, and the order of the Court pursuant to §3 T(IwG)A 77 for the return into his possession of his physical DNA and conditionally pursuant to such order the disposal of the other SPD per 6.8 below or mandatory or common law or equitable injunction as the Court deems most appropriate.

      Any ideas?

      All the best

      Ian

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