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
23. Counsel for the Home Secretary accepted that it is possible to conceive of uses which might theoretically be capable of amounting to an interference with respect for private life under article 8(1). He gave the example that where samples were used to extract personal genetic information about an individual and that information was used in a way linked to that individual it might represent an interference with the right to respect for private life. Subject to such unusual cases, the use of retained fingerprints and samples in the context of the detection and prosecution of crime should cause no problem of principle.
24. Under this heading it is also important to bear in mind the decision of the House in Attorney-General's Reference (No. 3 of 1999). It was decided under the old section 64 and in respect of a sample which should undoubtedly have been destroyed. The House held that (91F):
The House was influenced by the broad policy consideration that (118D) -
This approach may be of continuing relevance.X. Issue (1): Article 8
Does retention interfere with the right under article 8(1)?
25. There is no decision of the European Court of Human Rights on the question whether the retention of fingerprints or samples amounts to an interference with the right to respect for private life. On the other hand, the European Commission of Human Rights has considered the point. In McVeigh, O'Neill and Evans v United Kingdom (1981) 25 DR 15 the Commission distinguished between the taking of fingerprints, photographs and records, and their retention (paras 223-226). About retention the Commission stated (at para 227):
McVeigh involved charges of terrorism but the same reasoning may be applicable to other serious crimes. Subsequently, in the context of photographs and fingerprints retained in connection with a charge of fraud the Commission concluded that there was not an interference with respect for private life under article 8: Kinnunen v Finland (Application No. 24950/94) (unreported), 15 May 1996.
26. These decisions are relevant but far from conclusive. In the Divisional Court Leveson J was content simply to record that he was "far from convinced that the retention of photographs and DNA samples engage article 8 in any form": para 21. A different approach prevailed in the Court of Appeal. The court held that article 8(1) applied to the retention. Lord Woolf CJ found the solution in the different cultural traditions of member states. He said (para 32, at 3233 G):
He explained (at para 34, 3234 E-G):
Waller LJ said that Liberty's intervention persuaded him that there was a breach of article 8(1) in the retention and use of the samples: para 58, at 3240E. Sedley LJ agreed with the observations of Lord Woolf LJ on the application of article 8(1). He added that "we are fully entitled to take into account the strong cultural unease in the United Kingdom about the official collection and retention of information about individuals": para 68, at 3243D. Counsel for the appellants relied on these observations in the Court of Appeal. It is necessary to examine them.
27. While I would not wish to subscribe to all the generalisations in the Court of Appeal about cultural traditions in the United Kingdom, in comparison with other European states, I do accept that when one moves on to consider the question of objective justification under article 8(2) the cultural traditions in the United Kingdom are material. With great respect to Lord Woolf CJ the same is not true under article 8(1). Expressing the unanimous view of the House in R (Ullah) v Special Adjudicator; Do v Immigration Appeal Tribunal  UKHL 26;  3 WLR 23 Lord Bingham of Cornhill observed that the ECHR is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court: para 20. He added (at para 20):
The question whether the retention of fingerprints and samples engages article 8(1) should receive a uniform interpretation throughout member states, unaffected by different cultural traditions. And the current Strasbourg view, as reflected in decisions of the Commission, ought to be taken into account.
28. That brings me to the concerns of Liberty. They centre on the retention of DNA samples. To the extent that Liberty expresses fears about the misuse of retained samples, Dr. Bramley has shown the extent of the rigorous safeguards in place (para 12.1-12.5). In any event, the trial process ought to weed out such abuses. Liberty's fears of what may happen in the future in the light of the expanding frontiers of science is not relevant in respect of contemporary use of retained samples in connection with the detection and prosecution of crime. If future scientific developments require it, judicial decisions can be made, when the need occurs, to ensure compatibility with the ECHR.
29. In the Divisional Court Leveson J helpfully explained why the retention of DNA samples does not have an impact on the private lives of individuals. He said:
Since the hearing in the Divisional Court, Dr. Bramley has provided detailed and powerful support for this view. Dr. Bramley explained that:
30. Counsel for the appellants then approached the matter from a different angle. He emphasised that the use of retained fingerprints and samples under section 64(1A) extends to "purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution." He argued that the words "for purposes related to" are capable of permitting uses other than for the investigation, detection or prosecution of crime. The text shows that the words "for purposes relating to" apply to each of the three specified uses: i.e.
(a) for purposes related to the prevention or detection of crime;
(b) for purposes related to the investigation of an offence;
(c) for purposes related to the conduct of a prosecution.
And the context shows that the words "for purposes related to" fulfil a meaningful role. These words permit use of fingerprints and samples for exculpation of a potential suspect, or use of fingerprints and samples on a criminal appeal or for investigation of a miscarriage of justice. Such permitted uses might otherwise be said to have been excluded if a very restrictive definition of "conduct of prosecution" or "investigation of an offence" were to be adopted. In these circumstances, and bearing in mind the interpretive obligation in section 3 of the 1998 Act, the fears of counsel for the appellants are not justified. In so far as it may be necessary section 64(1A) will be given a Convention-compatible meaning under section 3 of the 1998 Act.
31. Looking at the matter in the round I incline to the view that in respect of retained fingerprints and samples article 8(1) is not engaged. If I am wrong in this view, I would say any interference is very modest indeed.
If the retention of DNA profiles, samples and fingerprints is a breach of article 8(1), is it justified under article 8(2)?
32. This issue does not arise if the conclusion is correct that article 8(1) is not engaged. I will consider it, however, on the hypothesis that there is some interference with private life, albeit rather modest.
33. The effect of the decision of the House in Attorney-General's Reference (No. 3 of 1999), in conjunction with section 64 of PACE in unamended form, left the law in a distinctly unsatisfactory state. There was an obligation to destroy fingerprints and samples in respect of persons who were acquitted. Nevertheless, if such material was unlawfully retained, it could be used for the purpose of investigating another offence, and the evidence could be used in a subsequent trial unless it was excluded at the judge's discretion. This distinction did not reflect well on the law. Parliament could have reversed Attorney-General's Reference (No. 3 of 1999). Instead, adopting the underlying philosophy of the House in that decision, Parliament decided to provide for the retention of fingerprints and samples. This legislative choice must be approached with due deference to a policy decision made by Parliament.
34. The appellants argued that an interference with article 8(1) cannot be justified under article 8(2). The Divisional Court dismissed this argument. The Court of Appeal unanimously rejected an appeal on this part of the case.
35. In the House counsel for the appellants renewed the submissions -
(1) that retention is not "in accordance with law"; and
(2) that the power of retention is disproportionate.
36. The first contention can be dealt with briefly. Counsel cited Silver v The United Kingdom (1983) 5 EHRR 347, at 372, para 88) for the proposition that "a law which confers a decision must indicate the scope of that discretion." Standing alone this is an impractical and unworkable prescription. But the ECtHR added (para 88):
The discretion involved in the power to retain fingerprints and samples makes allowance for exceptional circumstances, e.g. where an undertaking to destroy the fingerprints or sample was given or where they should not have been taken in the first place, as revealed by subsequent malicious prosecution proceedings. Sometimes an obviously unmeritorious point does not require elaborate examination. In agreement with his colleagues Sedley LJ dealt with the argument as follows (para 69):
I respectfully agree.
37. The second contention is based on the principle of proportionality. Counsel for the appellants argued that the retention of fingerprints and DNA samples creates suspicion in respect of persons who have been acquitted. Counsel for the Home Secretary said that this argument focuses on the wrong target. The retention of fingerprints and DNA samples is not aimed at the past. Its purpose is to assist in the investigation of offences in the future. The retention and use of fingerprints and samples in this way does not affect the appellants unless they are implicated in a future crime, by a DNA sample found at the scene. It is only if and when there are two profiles which match each other that the database will generate a bull's eye.
38. The following propositions seem to be established: (i) the fingerprints and samples are kept only for the limited purpose of the detection, investigation, and prosecution of crime; (ii) the fingerprints and samples are not of any use without a comparator fingerprint or sample from the crime scene; (iii) the fingerprints and samples will not be made public; (iv) a person is not identifiable to the untutored eye simply from the profile on the database, any interference represented by the retention being minimal; (v) and, on the other hand, the resultant expansion of the database by the retention confers enormous advantages in the fight against serious crime. Cumulatively these factors suggest that the retention of fingerprints and samples is not disproportionate in effect.
39. Counsel for the appellants submitted that the legislative aim could be achieved by less intrusive means. It became clear that this contention would require a case by case consideration of the circumstances of alleged offences of which the individual has been acquitted. Counsel was able to rely on the conclusion of Sedley LJ. He said (para 94, at 3249):
In my view this would not confer the benefits of a greatly extended database and would involve the police in interminable and invidious disputes (subject to judicial review of individual decisions) about offences of which the individual had been acquitted. In any event, Waller LJ pointed out (para 66, at 3242):
These observations were made in the context of the issue of discretion but are apposite to the question whether there are less intrusive but realistic means available to achieve the legislative purpose. In my view the answer is that there are not.
40. I would, therefore, hold that if article 8(1) is engaged, there is plainly an objective justification under article 8(2).
XI. Issue (2): Distinction between the retention of DNA profiles and samples.
41. It will be apparent from my examination and discussion of the undoubted distinction between DNA profiles and samples that, for the reasons already given, the legal consequences are not as contended for by counsel for the appellants and Liberty. It is unnecessary to traverse the same ground again.
XII. Issue (3): Does the retention of fingerprints and samples amount to discrimination under article 14 and, if so, can it be objectively justified?
42. Based on the approach of Brooke LJ in Wandsworth London Borough Council v Michalak  1 WLR 617, 625, para 20, as amplified in R (Carson) v Secretary of State for Work and Pensions  EWHC 978 (Admin), para 52 and  EWCA Civ 797,  3 All ER 577, five questions can be posed as a framework for considering the question of discrimination:
(1) Do the facts fall within the ambit of one or more of the Convention rights?
(2) Was there a difference in treatment in respect of that right between the complainant and others put forward for comparison?
(3) If so, was the difference in treatment on one or more of the proscribed grounds under article 14?
(4) Were those others in an analogous situation?
(5) Was the difference in treatment objectively justifiable in the sense that it had a legitimate aim and bore a reasonable relationship of proportionality to that aim?
43. But a caveat must be mentioned. In Ghaidan v Godin-Mendoza  UKHL 30;  3 WLR 113 Baroness Hale of Richmond explained (para 134, p 157):
That is how I will approach the matter.
Question 1: A Convention right
44. There is no free-standing right under article 14 against discrimination. In this case the question is whether the facts fall within the ambit of article 8. If my conclusion is right that article 8(1) is not engaged, it follows that article 14 is not triggered. I will assume, however, that the retention of fingerprints and samples does amount to an interference under article 8(1), albeit a justified interference under article 8(2). On this supposition the first Michalak question must be answered in the affirmative.
Question 2: Less favourable treatment
45. The appellants' chosen comparators are the general body of persons who have not had fingerprints and samples taken by the police in the course of a criminal investigation. There is different treatment between those comparators and the appellants in relation to section 64(1A) of PACE.
Question 3: A proscribed ground?
46. This question is important because if the different treatment is not on a relevant ground for the purposes of article 14, then this article is not applicable. In any event, identification of the ground for different treatment is material to the question of justification.
47. The different treatment afforded to the appellants and comparators was on the ground that the former had already provided samples and fingerprints to the police in a criminal investigation while the comparators had never been required to do so.
48. The list of grounds in article 14 is not exhaustive, and necessarily includes each of the specifically proscribed grounds as well as "other status". The ECtHR has interpreted "other status" as meaning a personal characteristic: Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, para 56. I do not understand the Lord Chief Justice to have expressed a different view in para 47 of his judgment. On the other hand, the proscribed grounds in article 14 cannot be unlimited, otherwise the wording of article 14 referring to "other status" beyond the well-established proscribed grounds, including things such as sex, race or colour, would be unnecessary. It would then preclude discrimination on any ground. That is plainly not the meaning of article 14.
49. It is, therefore, necessary to examine whether the ground for different treatment in this case amounts to a status in the sense of a personal characteristic within the meaning of article 14.
50. There is a difference in treatment between those who have had to provide fingerprints and samples pursuant to a criminal investigation as compared with the rest of the public who have not. But that difference is not necessarily on grounds of "status". Counsel for the Chief Constable and counsel for the Home Secretary submitted that it is a difference simply reflecting historical fact, namely that the authorities already hold the fingerprints and samples of the individuals concerned which were lawfully taken. Counsel for the Chief Constable illustrated the point with an analogy. He asked the House to imagine that Mr Marper had been involved in an accident and admitted to hospital. In routine fashion notes would have been made, tests done and x-rays taken. A subsequent request by his solicitors to destroy the materials would have been refused by the hospital. First, it is good practice to keep them. Secondly, medical negligence is a growing area of litigation and prudence requires records to be kept. Had Mr Marper then sought a judicial review of this decision, an article 8 challenge would have failed and an article 14 challenge would have met the answer that the existence of the records is not a matter of status. It is an historical fact that is unrelated to any personal characteristic. I find the analogy, and the argument which it supports, persuasive. This is, however, not the only possible explanation. In the Court of Appeal Sedley LJ observed (para 86, at 3247C):
This view was adopted by counsel on behalf of the Chief Constable but not by counsel on behalf of the Home Secretary. Given my acceptance of the rationale put forward jointly by the Chief Constable and the Home Secretary it is not necessary to rule on the observation of Sedley LJ.