 House of Lords |
Session 2003 - 04
Publications on the Internet Judgments |
| Judgments -
Regina v. Chief Constable of South Yorkshire Police (Respondent) ex parte LS (by his mother and litigation friend JB) (FC) (Appellant) Regina v. Chief Constable of South Yorkshire Police (Respondent) ex parte Marper (FC)(Appellant) Consolidated Appeals |
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Regina v. Chief Constable of South Yorkshire Police (Respondent) ex parte LS (by his mother and litigation friend JB) (FC) (Appellant) Regina v. Chief Constable of South Yorkshire Police (Respondent) ex parte Marper (FC) (Appellant) (Consolidated Appeals) ON THURSDAY 22 JULY 2004 The Appellate Committee comprised: Lord Steyn Lord Rodger of Earlsferry Baroness Hale of Richmond Lord Carswell Lord Brown of Eaton-under-Heywood HOUSE OF LORDSOPINIONS OF THE LORDS OF APPEAL FOR JUDGMENTIN THE CAUSERegina v. Chief Constable of South Yorkshire Police (Respondent) ex parte LS (by his mother and litigation friend JB) (FC) (Appellant)Regina v. Chief Constable of South Yorkshire Police (Respondent) ex parte Marper (FC) (Appellant)(Consolidated Appeals)[2004] UKHL 39LORD STEYN My Lords, 1. It is of paramount importance that law enforcement agencies should take full advantage of the available techniques of modern technology and forensic science. Such real evidence has the inestimable value of cogency and objectivity. It is in large measure not affected by the subjective defects of other testimony. It enables the guilty to be detected and the innocent to be rapidly eliminated from enquiries. Thus in the 1990s closed circuit television (CCTV) became a crime prevention strategy extensively adopted in British cities and towns. The images recorded facilitate the detection of crime and prosecution of offenders. Making due allowance for the possibility of threats to civil liberties, this phenomenon has had beneficial effects. 2. The use of fingerprint evidence in this country dates from as long ago as 1902. In due course other advances of forensic science followed. But the dramatic breakthrough was the use of DNA techniques since the 1980s. The benefits to the criminal justice system are enormous. For example, recent Home Office statistics show that while the annual detection rate of domestic burglary is only 14%, when DNA is successfully recovered from a crime scene this rises to 48%. It is, of course, true that such evidence is capable of being misused and that courts must be ever watchful to eliminate risks of human error creeping in. But as a matter of policy it is a high priority that police forces should expand the use of such evidence where possible and practicable. I. Retention of fingerprints and samples 3. It is not in doubt that the taking of fingerprints and samples from persons suspected of having committed relevant offences is a reasonable and proportionate response to the scourge of serious crime. What the present appeals are concerned with is the retention of such material in cases when a suspect is subsequently acquitted or the charge is discontinued. Until the coming into effect on 11 May 2001 of section 82 of the Criminal Justice and Police Act 2001, the retention by the police of such fingerprints and samples was unlawful under section 64 of the Police and Criminal Evidence Act 1984 (PACE). There was public disquiet that this rule sometimes enabled defendants who had in all likelihood committed grave crimes to walk free. Parliament decided to reverse it. Section 64(1A) of PACE, as substituted by section 82 of the 2001 Act, authorises the retention of such fingerprints and samples. It provides:
(Emphasis supplied) This statutory provision lies at the heart of the present appeals. Its effect is that if a match is made between a fingerprint or a sample found at a crime scene and a fingerprint or sample taken from an individual before he was cleared of an earlier offence, the police will be able to use the underlying information in the investigation of the offence. It can play a significant role in the elimination of the innocent, the correction of miscarriages of justice and the detection of the guilty. II. The Explanatory Notes 4. The mischief against which section 64(1A) is aimed is set out in the Explanatory Notes which, in accordance with the system introduced in 1999, accompanied the Bill in its progress through Parliament. Explanatory Notes are not endorsed by Parliament. On the other hand, in so far as they cast light on the setting of a statute, and the mischief at which it is aimed, they are admissible in aid of construction of the statute. After all, they may potentially contain much more immediate and valuable material than other aids regularly used by the courts, such as Law Commission Reports, Government Committee reports, Green Papers, and so forth. The Explanatory Notes relating to what became the new section 64(1A) read as follows:
The light cast on the interpretation of section 64(1A) by the notes is limited but it does show exactly what problem Parliament was addressing. 5. The reference in the Explanatory Notes to fingerprints is readily intelligible. But it is necessary to make clear what DNA evidence is. The Forensic Science Service on its website under the legend "What is DNA?" give a simple and useful explanation. So far as material it reads as follows:
To this general description it is necessary to add that in the present appeal a distinction has been drawn between DNA samples and DNA profiles derived from the samples. Dr. Bramley, Chief Scientist of the Forensic Science Service and Custodian of the National DNA Database, explained in a witness statement (para 10.2):
III. The Questions 6. The principal question before the House concerns the compatibility of section 64(1A) with the European Convention on Human Rights as scheduled to the Human Rights Act 1998, and in particular with the Convention rights contained in articles 8 and 14. Respectively these articles provide as follows:
In addition there is a separate question whether the policy of the Chief Constable to retain, save in exceptional circumstances, fingerprints and samples of acquitted individuals in all cases is lawful and compatible with the fundamental rights of individuals. IV. The value of such real evidence7. The value of retained fingerprints and samples taken from suspects who were subsequently acquitted is considerable. This is graphically illustrated by a real case which has been referred to as "I". In 1999 a rape and robbery took place. The perpetrator was not know to the victim. DNA was recovered from the semen on the victim. A search of the national database showed that the DNA matched that of "I". The sample should have been destroyed. It was not. Following the decision of the House of Lords in Attorney-General's Reference (No. 3 of 1999) [2001] 2 AC 91 the prosecution went ahead. "I" pleaded guilty to rape and was sentenced to a term of seven years (subsequently reduced on appeal to six years) in a young offenders institution. But for the wrongly retained sample the offender might have escaped detention, possibly to commit other serious crimes. 8. This is one concrete illustration of the value of such evidence. It is part of a broader picture. DNA can be detected from very small samples (such as might be found on the saliva on a cigarette end). The power of this technique to eliminate those suspected or to incriminate others is enormous. The Court of Appeal had before it statistical evidence from Dr. Bramley, which demonstrated the value of such evidence. In a witness statement of 16 July 2002 he said [para 9]:
Two years later Dr. Bramley updated the statistics. The effect is summarised in the printed Case of the Home Secretary:
The Home Office statistics show that there is a 40% chance that a crime scene sample will be matched immediately with an individual's profile on the database. These statistics show that fingerprints and samples, which may under section 64(1A) be retained, have in the last three years played a major role in the detection and prosecution of serious crime. 9. This is the context in which the questions before the House must be considered. V. The two cases before the House 10. There are two appeals before the House. Neither appeal involves an unusual set of facts. They can be regarded as appropriate test cases to consider the questions of law involved. The case of "S" 11. When he was arrested on 19 January 2001 "S" was an 11 year old boy. He has no previous convictions, cautions or warnings. He was charged with the offence of attempted robbery. Fingerprints and samples were taken from him. Following a trial on 14 June 2001, "S" was acquitted of the charge. On 18 July 2001, the Principal Fingerprint Officer of South Yorkshire Police wrote to the solicitors acting on behalf of "S" in these terms:
Then followed further correspondence between the solicitors for "S" and the South Yorkshire Police in which the solicitors demanded the destruction of the fingerprints and samples of "S" and the police refused to do so. It is unnecessary to summarise the rival legal contentions of the parties. On 12 October 2001, "S" sought judicial review of the decision of the police. The standard Form N461 summarised the relief sought as follows:
Mr Marper 12. On 13 March 2001, Mr Marper (who was then 38 years of age and of good character) was arrested and charged with harassment of his partner. The police took his fingerprints and samples. When he appeared in court he pleaded not guilty. The court adjourned his case for a pre-trial review. By the time of that hearing, his partner had become reconciled with him and decided not to press the charge. On 11 June 2001, the Crown Prosecution Service wrote to his solicitors enclosing a notice of discontinuance. On 14 June the case was formally discontinued by the Magistrates' Court. 13. There was correspondence between the solicitors for Mr Marper and the South Yorkshire Police in which the former demanded destruction of his fingerprints and samples and the police refused to do so. Again the rival legal contentions need not be set out. On 12 December 2001, Mr Marper applied for judicial review of the decision of the Police. The application was based on the same legal grounds as those advanced by "S". VI. The Divisional Court 14. The applications for judicial review came before the Divisional Court (Lord Justice Rose (the Vice-President of the Court of Appeal Criminal Division) and Leveson J). The judgment was given by Leveson J with the agreement of Rose LJ. The court held that the retention of the fingerprints and DNA samples of individuals who had not been convicted of a criminal offence did not contravene either the individual's right to a private life under article 8 or his right not to discriminated against under article 14. The court also rejected a challenge to the discretion exercised by the Chief Constable under section 64(1A) in relation to the retention of fingerprints and other samples: R (S) v Chief Constable of South Yorkshire Police and the Secretary of State for the Home Department and R (Marper) v Chief Constable of South Yorkshire Police and the Secretary of State for the Home Department [2002] EWHC 478 (Admin). VII. The appeal to the Court of Appeal 15. The shape of the case changed before the Court of Appeal. Liberty was given permission to intervene. In particular Liberty emphasised in para 3.4.3 of their intervention:
Liberty contended that "the range of genetic information that may be derived from DNA samples is of a highly private nature": para 1.3(1). In short Liberty argued that the samples provided more information about the person who provided the samples than is needed for the identification of those involved in crime. Faced with these new issues, which the Secretary of State and the Chief Constable had no opportunity at the oral hearing to deal with, the Court of Appeal gave them leave to produce further evidence and to make further written submissions. That was done. The most important document placed before the Court of Appeal after the oral hearing was the affidavit of Dr. Bramley to which some reference has already been made. 16. Addressing the issues, as amplified by Liberty's intervention, the Court of Appeal by a majority (Lord Woolf CJ and Waller LJ) upheld for somewhat different reasons the decision of the Divisional Court: Regina (S) v Chief Constable of the South Yorkshire Police; Regina (Marper) v Chief Constable of South Yorkshire Police [2002] 1 WLR 3223. In a dissenting judgment Sedley LJ concluded that the Chief Constable was required to consider whether in each particular case the individual concerned is free of any taint of suspicion. VIII. The issues before the House 17. The agreed Statement of Facts and Issues summarises the issues before the House as follows: (1) whether the retention of fingerprints, samples and DNA profiles is an interference with the appellants' right to respect for private life pursuant to article 8(1) of the ECHR and, if so, whether it can be justified under article 8(2); (2) whether a distinction should be made between the retention of DNA profiles and samples; (3) whether the retention of the appellants' fingerprints, samples and DNA profiles amounts to discrimination against them for the purposes of article 14 of the ECHR and, if so, whether it is objectively justified; (4) if the retention of fingerprints and DNA profiles and/or samples is an unjustified interference with the appellants' Convention rights, whether it would be possible to give section 64(1A) a Convention-compatible interpretation under section 3 of the 1998 Act; (5) if that is impossible, whether section 64(1A) should be declared to be incompatible with article 8 and/or 14 of the ECHR; (6) whether the policy of the Chief Constable to retain samples and fingerprints in all cases subject to exceptional circumstances is unlawful and incompatible with the appellants' Convention rights. These issues must primarily be considered in the light of the competing arguments of the parties. But the contentions of Liberty are also important. Although the Appellate Committee was willing to allow Liberty to intervene in writing and orally, that did not happen. The House has, however, considered in detail the written intervention of Liberty in the Court of Appeal as well as a petition by Liberty to the House of Lords to intervene which was subsequently withdrawn. 18. A procedural issue arose at the oral hearing of the appeals in the House. Counsel for the appellants applied for leave to introduce a letter dated 11 June 2004 from the Information Commissioner to Liberty about the National DNA Database as well as associated materials. The Information Commissioner is not a party to the proceedings and, although aware of the proceedings, did not seek leave to intervene. Not surprisingly, the Home Secretary and the Chief Constable strongly objected to the admission of this material. In my view this eleventh hour attempt to introduce new material must be strongly deprecated and by itself this factor is sufficient reason to refuse the application. In the result the House looked at the material de bene esse. In my view the material does not assist in the disposal of the issues. I would reject the application. IX. The Legislative Scheme19. Before it will be possible to examine the issues directly it is necessary to explain the legislative scheme in some detail. Inherent in the PACE regime are three different concepts, viz the taking of fingerprints and samples, the retention of them, and the use of them. Taking 20. The powers to take fingerprints and samples are to be found in PACE. Since fingerprints and samples were taken from the appellants in early 2001 those powers have in various respects been enlarged by statutory amendment but these changes are not material to the issues to be considered. PACE deals with fingerprints and samples separately. Sections 27 and 61 contain the main powers to take fingerprints in carefully regulated circumstances involving, amongst other things, a reasonable suspicion that a person has committed a criminal offence. The main power to take samples was to be found in section 63. It covers the case where a person was charged with a recordable offence. 21. It is true that the taking of fingerprints and samples involves an interference with the individual's private life within the meaning of article 8(1) of the ECHR. On the other hand, such interference for the very limited statutory purposes is plainly objectively justified under article 8(2). Retention 22. The terms of section 64(1A) have already been quoted. In order to place it in context, I set it out again:
Section 64(1B) extends by definition the use for the purposes of section 64(1A) of checks of fingerprints and samples. It is also necessary to refer to the following subsections of section 64:
Subsection 63(3AC) is of particular interest in so far as it may have to be accommodated in the submissions on behalf of the appellants. Use |
| continue |