(back to preceding text)

    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):

". . . whereas section 64(3B)(a) of PACE made express prohibition against the use in evidence of a DNA sample which should have been destroyed, section 64(3B)(b), in prohibiting the use of an unlawfully retained sample for the purposes of any investigation, did not amount to a mandatory exclusion of evidence obtained as a result of a failure to comply with that prohibition but, read with section 78 of PACE, left the question of its admissibility to the discretion of the trial judge; that a decision by a judge in the exercise of his discretion to admit such evidence would not amount to an unlawful interference with the defendant's right to private life under article 8 of the ECHR…"

The House was influenced by the broad policy consideration that (118D) -

". . . respect for the privacy of defendants is not the only value at stake. The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public."

This approach may be of continuing relevance.

    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):

". . . that it is open to question whether the retention of fingerprints, photographs and records of such information amounts to an interference with the applicants' right to respect for private life under Article 8(1) of the Convention."

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):

". . . So far as this jurisdiction is concerned it is my view that fingerprints and DNA samples are material which is regarded as being personal to the individual from whom it is taken and so requires legal justification before it can be retained."

He explained (at para 34, 3234 E-G):

"34. . . . while not substantial, the interference is still real. There is no doubt a rainbow of reactions which are possible to intrusions of this nature, but at least for a substantial proportion of the public there is a strong objection to the state storing information relating to an individual unless there is some objective justification for this happening. The objection to the storage is reflected in the appreciative public response to novels such as Aldous Huxley's Brave New World and George Orwell's 1984. As to the persuasive decisions of the Commission, it has to be remembered that just as in the appropriate circumstances a margin of appreciation has to be extended for any shortcomings in this jurisdiction in relation to observing the Convention, so there can be situations where the standards of respect for the rights of the individual in this jurisdiction are higher than those required by the Convention. There is nothing in the Convention setting a ceiling on the level of respect which a jurisdiction is entitled to extend to personal rights. In this jurisdiction I would not expect a court to necessarily follow the decision of the Commission in Reyntjens v Belgium (1992) 73 DR 136, 152 that: 'The obligation to carry an identity card and to show it to the police whenever requested to do so does not as such constitute an interference in a person's private life within the meaning of article 8 of the Convention.'"

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 [2004] UKHL 26; [2004] 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):

". . . It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less."

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:

"19. A person can only be identified by fingerprint or DNA sample either by an expert or with the use of sophisticated equipment or both; in both cases, it is essential to have some sample with which to compare the retained data. Further, in the context of the storage of this type of information within records retained by the police, the material stored says nothing about the physical makeup, characteristics or life of the person to whom they belong."

Since the hearing in the Divisional Court, Dr. Bramley has provided detailed and powerful support for this view. Dr. Bramley explained that:

(1)  the scientific testing of the sample which leads to the generation of a DNA profile is based upon analysis of the non-coding region of DNA (namely STRs): paras 3.2, 3.3 and 4.1;

(2)  the STR analysis performed to create a DNA profile does not generally permit extraction of potential medical information about an individual: para 4.2;

(3)  although other genetic information from samples could be obtained in theory (such as medical information), the use of samples obtained and retained under PACE is limited to purposes related to the prevention or detection of crime: para 11;

(4)  As explained by Dr. Bramley (para 11.3):

"The use to which the retained scrapes can be put is restricted by the legislation which permits their retention only for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution. This is not interpreted so widely as to allow general testing of the retained CJ scrapes for medical conditions or susceptibilities and linking the results to a specific known individual."

    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 Court has already recognised the impossibility of attaining absolute certainty in the framing of laws and the risk that the search for certainty may entail excessive rigidity . . . [T]he Court points out once more that 'many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice."

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):

"The next question is whether retention of fingerprints or of bodily samples which is permitted under section 64 of PACE is justified under article 8(2). The purposes of retention - the prevention of crime and the protection of the right of others to be free from crime - are four-square within article (8(2), and retention is provided for by law."

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):

". . . The power of a Chief Constable to destroy data which he would ordinarily retain must in my judgment be exercised in every case, however rare such cases may be, where he or she is satisfied on conscientious consideration that the individual is free of any taint of suspicion."

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):

". . . to introduce a concept of a Chief Constable having to consider whether a person is free of any taint of suspicion has great difficulties, and as it seems to me is raising a consideration which in fact should not apply at the retention stage. At the retention stage consideration of the circumstances of the offence of which the person has by this stage been acquitted seems to me almost certainly irrelevant. I accept that if some form of undertaking were given to destroy to induce a person to co-operate in the taking of a sample, that would be relevant, but the circumstances of the offence itself would as I see it not be. Apart from the 'undertaking type case', retention is only relevant to the question whether the details on the databank will assist in either the elimination or the conviction of a person so far as some future criminal investigation is concerned. If justification for retention is in any degree to be by reference to the view of the police on the degree of innocence, then persons who have been acquitted and have their samples retained can justifiably say this stigmatises or discriminates against me - I am part of a pool of acquitted persons presumed to be innocent, but I am being treated as though I was not. It is not in fact in any way stigmatising someone who has been acquitted to say simply that samples lawfully obtained are retained as the norm, and it is in the public interest in its fight against crime for the police to have as large a database as possible. I accordingly do not subscribe to the view that the Chief Constable is bound to exercise his discretion in the way suggested by Sedley LJ."

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 [2003] 1 WLR 617, 625, para 20, as amplified in R (Carson) v Secretary of State for Work and Pensions [2002] EWHC 978 (Admin), para 52 and [2003] EWCA Civ 797, [2003] 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 [2004] UKHL 30; [2004] 3 WLR 113 Baroness Hale of Richmond explained (para 134, p 157):

". . . the Michalak questions are a useful tool of analysis but there is a considerable overlap between them: in particular between whether the situations to be compared were truly analogous, whether the difference in treatment was based on a proscribed ground and whether it had an objective justification. If the situations were not truly analogous it may be easier to conclude that the difference was based on something other than a proscribed ground. The reasons why their situations are analogous but their treatment different will be relevant to whether the treatment is objectively justified. A rigidly formulaic approach is to be avoided."

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):

". . . The line between those unconvicted people who have faced charges and those who have not, while not a bright line, is not arbitrarily drawn. It does not tarnish the innocence of the unconvicted in the eye of the law. But it recognises that among them is an indeterminate number who are likelier than the rest of the unconvicted population to offend in the future or to be found to have offended in the past"

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.