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

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    51.  By way of summary the position is as follows. The difference in treatment is not analogous to any of the expressly proscribed grounds such as sex, race, gender or religion. The fact that the police are now in possession of fingerprints and samples which were previously lawfully acquired as a result of a criminal investigation does not give rise to a "status" within the meaning of article 14. The appellants, and other individuals in their position, are as fully entitled to the presumption of innocence as the general body of citizens.

    52.  I would accept the analysis of counsel that the difference in treatment of the appellants and those who have not been investigated and provided fingerprints is not a proscribed ground under article 14.

Question 4: Analogous situation?

    53.  For reasons already given there is a material distinction between individuals who have had their fingerprints and samples lawfully taken in consequence of being charged with a recordable offence and those who have not. It cannot be said that the circumstances are so similar as to call for a positive justification of the difference in treatment. I have taken into account the analogy of indirect discrimination advanced by Sedley LJ: para 89-92. In my view we are dealing with an allegation of direct discrimination apparent on the face of the legislation. The analogy is not apposite. Within the Michalak framework the pool of comparators has been wrongfully identified by the appellants. It follows that I would answer the question by concluding that the appellants and the suggested comparators are not in an analogous situation.

Question 5: Objective justification

    54.  If, contrary to my view, it is necessary to consider the justification for the difference in treatment, I would conclude without hesitation that objective justification is established. First, the element of legitimate aim is plainly present inasmuch as the increase in the database of fingerprints and samples promotes the public interest by the detection and prosecution of serious crime and by exculpating the innocent. This conclusion is powerfully reinforced by the recent statistics which I have cited in paragraph 8 of this opinion.

    55.  Secondly, in my view, the requirement of proportionality is satisfied. Section 64(1A) objectively represents a measured and proportionate response to the legislative aim of dealing with serious crime. Moreover, this conclusion is supported by the need, in the circumstances, to approach with due deference the policy decision made by Parliament in enacting section 64(1A) in the fight against serious crime. And the results of the new scheme provide cogent vindication of the decision of Parliament.

Conclusion on article 14

    56.  I would hold that there is no breach of article 14.

XIII. Issues (4) and (5)

    57.  Given these conclusions, Issue 4 (interpretation under section 3 of the 1998 Act) and Issue 5 (incompatibility under section 4 of the 1998 Act) fall away.

XIV. Issue (6): Discretion

    58.  The nature of the policy adopted by the Chief Constable of South Yorkshire Police and other Chief Constables is plain. It is to retain, save in exceptional cases, all fingerprints and samples taken from those who have been acquitted of criminal offences or against whom proceedings have not been pursued. The aim of the policy is directed to the prevention or detection of crime, the investigation of offences, the facilitation of prosecutions, and the speedy exculpation of the innocent as well as the correction of miscarriages of justice.

    59.  Counsel for the appellants argued that this "blanket policy" is unlawful. He submitted that the policy is a fetter on the discretion of the Chief Constable. He said that retaining fingerprints in the case of persons untainted by suspicion is disproportionate. Counsel argued that the only fair solution is a case by case examination of the circumstances of each case. That, of course, would mean an examination of the circumstances which led to the fingerprints and samples being taken in respect of the alleged offence of which the individual was subsequently cleared. He accepted that this would involve the examination of many thousands of cases and involve large numbers of decisionmakers.

    60.  As I pointed out in paragraph 39 of this opinion such a system would probably not confer the benefits of a greatly extended database and would involve the police in interminable and invidious disputes (with individual decisions subject to judicial review) about the circumstances of offences of which individuals had been cleared. Moreover, in such a decision-making process individuals who are not eliminated as being without a taint of suspicion could truly complain that they have been deprived of the benefit of the presumption of innocence. This suggested alternative is unrealistic and impractical.

    61.  I would, therefore, reject the challenge to the policy. It is lawful.

XV. Disposal

    62.  I would dismiss the appeals.

    LORD RODGER OF EARLSFERRY

My Lords,

    63.  I have had the advantage of reading the speech of my noble and learned friend, Lord Steyn, in draft. I agree with it and, for the reasons he gives, I too would dismiss the appeals.

    64.  In particular, it respectfully appears to me that the Court of Appeal attached too much weight to what they saw as a greater cultural resistance in Britain than in other European countries to the collection and retention of data about individuals. For one thing, I am doubtful whether the reaction of the educated public at the time to novels published many years ago can be taken as an accurate reflection of British public opinion in the very different conditions of today. Recent press reaction to the failure of police and other bodies to store information about those suspected of sexual offences might well point to a rather different attitude. And it may well be that, with their bitter experience of life under totalitarian regimes, people in some other European countries would nowadays be more concerned than people here about official files on individuals.

    65.  In any event the attitude in Britain alone cannot be decisive. At most, it would be a basis on which Parliament might have chosen to enact legislation to prevent the storing of information about suspects or on which the courts might have developed the common law so as to provide such protection. But, in fact, by enacting section 82 of the Criminal Justice and Police Act 2001, Parliament has removed the provision which previously made it unlawful to retain the fingerprints and samples of those who were subsequently not charged or who were acquitted. And that must be regarded as the most recent expression of public policy on this topic in England and Wales. (In Scotland no such change has been made so far.)

    66.  In these circumstances the appellants seek to rely on the article 8(1) Convention right which they enjoy under the Human Rights Act 1998. That is a right under domestic law, but a right of a special kind which was, in the words of Lord Nicholls of Birkenhead in In re McKerr [2004] UKHL 12; [2004] 1 WLR 807, 815E, para 25, "created by the 1998 Act by reference to the Convention". So, in order to interpret article 8 and the other Convention rights in schedule 1 to the 1998 Act, courts must have regard to the scope of the equivalent rights in the Convention. For that reason, while the decisions of the European Court of Human Rights on the interpretation of the Convention are not binding, they provide authoritative guidance which courts have to take into account when interpreting the rights in domestic law. In formulating its decisions the Court considers the spectrum of attitudes across the contracting states in order to determine the contemporary content of rights under the Convention. It is the decisions reached in this way that help to shape the content of the Convention rights in our domestic law. I refer to the observations of Lord Bingham of Cornhill in R (Ullah) v Special Adjudicator [2004] 3 WLR 23, 39-40, para 20. So far at least, as Lord Steyn has shown, the Strasbourg case law does not support the appellants' argument that there has been a violation of article 8 in the circumstances of these cases.

BARONESS HALE OF RICHMOND

My Lords,

    67.  Sadly, while I agree with everything else in the opinion of my noble and learned friend, Lord Steyn, I cannot agree with the view, to which he is inclined, that the retention and storage of fingerprints, DNA profiles and samples is not an interference with the appellants' rights under article 8(1).

    68.  I agree that it is necessary to distinguish between the taking of fingerprints and samples, the deriving of information from those samples, the storage of samples and information, and the use of either samples or information for some particular purpose. The justifications for each of these may be very different. But all of them, in my view, constitute an interference by the state in a person's right to respect for his private life. This is an aspect of what has been called informational privacy.

    "This notion of privacy derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit." (per La Forest J in R v Dyment (1988) 45 CCC (3d) 244, at 255-256)

    69.  In the powerful words of the Canadian Privacy Commissioner in his report on Genetic Testing and Privacy (1995, at p 2):

    "The measure of our privacy is the degree of control we exercise over what others know about us. No one, of course, has absolute control. As social animals, few would want total privacy. However, we are all entitled to expect enough control over what is known about us to live with dignity and to be free to experience our individuality. Our fundamental rights and freedoms - of thought, belief, expression and association - depend in part upon a meaningful measure of individual privacy. Unless we each retain the power to decide who should know our political allegiances, our sexual preferences, our confidences, our fears and aspirations, then the very basis of a civilised, free and democratic society could be undermined."

    70.  It could be said that the samples are not 'information' (see, for example, the doubts expressed about this by the Australian Law Reform Commission in Essentially Yours: The Protection of human Genetic Information, Report 96, at para 8.8). But the only reason that they are taken or kept is for the information which they contain. They are not kept for their intrinsic value as mouth swabs, hairs or whatever. They are kept because they contain the individual's unique genetic code within them. They are kept as information about that person and nothing else. Fingerprints and profiles are undoubtedly information. The same privacy principles should apply to all three.

    71.  It can also be said that not all information about a person is so private that it enjoys the protection of article 8. This is so. There must be a reasonable expectation of privacy before it is protected (see Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 WLR 1232). But there can be little, if anything, more private to the individual than the knowledge of his genetic make-up. Again in the words of the Canadian Privacy Commissioner:

    "No surveillance technology is more threatening to privacy than that designed to unlock the information contained in human genes."

    72.  Hence it is common ground that the taking of fingerprints and DNA samples is an interference with the article 8(1) right, even though the invasion of bodily integrity involved is minimal. It is also common ground that the use of the information derived from them is such an interference. This must be because the information is regarded as intrinsically private.

    73.  If the taking and use of the information is an interference, it is difficult to see why the retention, storage or keeping of that information is not also an interference. Storing information almost inevitably involves someone else knowing it. It is an interference with privacy for someone to know or have access to private information even if they make no other use of it. The mere fact that someone has read my private correspondence or seen my bank accounts is an interference with my privacy even if that person tells no one else what he has seen. That is why access to private information such as that contained in medical records has to be carefully controlled. The fact that only a few people can understand the information does not affect the principle, although it may affect the justification.

    74.  Nor can it be irrelevant that storing this information is a necessary prelude to using it. Some uses, in particular those for which the information in this case is permitted to be used, are entirely justifiable and beneficial. But others may not be. To return to the Canadian Privacy Commissioner:

    "Modern explorers have set sail on voyages into the genetic microcosm, seeking a medically powerful but potentially dangerous treasure: information about how our genes make us tick. Today, we can ask who among us is likely to have healthy babies or fall ill with a genetic disease. In the future, we may be able to use genetic testing to tell us who will be smart, be anti-social, work hard, be athletic or conform to prevailing standards of beauty."

    75.  No one is thinking of using the samples collected here for such purposes. But the fact that they could be so used, perhaps many years in the future, means that the appellants have a very real interest in how they are stored and who has access to them while they are stored. I do not believe that this interest is peculiar to the cultural traditions of this country. There is ample evidence of concern about them elsewhere in the world. Our data protection laws were originally the product of a Council of Europe Convention in 1981.

    76.  The general tenor of the jurisprudence of the European Court and Commission of Human Rights is that the retention, keeping or storage of private information by state institutions is an interference with article 8(1) rights. In Leander v Sweden (1987) 9 EHRR 433, at para 48, the European Court held that both the storage of private information in a secret police register and its release, coupled with a refusal to allow an opportunity to refute it, were an interference with the right to respect for private life. In Friedl v Austria (1995) 21 EHRR 83, paras 48-53, the Commission distinguished between the taking and keeping of photographs without identifying the subjects, and police questioning in order to establish identity and the recording of these personal data; the former was not an interference with article 8(1) but the latter was, although it was 'relatively slight' (para 66). The Commission reached a different conclusion about photographs and fingerprints kept after the applicant's acquittal in Kinnunen v Finland, app no 24950/94, 15 May 1996; but they noted that the information had been properly taken on his arrest, did not contain any surveillance or similar information or opinions which he might wish to refute, and therefore "was not of such a character that it could have adversely affected the applicant any more significantly than the publicly known fact that he had been charged with, but acquitted of, certain charges." The Commission was therefore concentrating on the nature of the information and the ways in which it could adversely affect the applicant. Even then it may have been somewhat optimistic. But this case is not limited to fingerprints. For the reasons given earlier, the DNA information in this case is of a very different 'character' even if the present uses to which it can lawfully be put are the same.

    77.  If keeping and storing this information by the state were not an interference with the right guaranteed by article 8(1), the consequences would be surprising. First, it would not be necessary to find any justification for it under article 8(2). Of course, mere keeping of the information is a lesser interference than using it, and may be easier to justify. But it would be surprising if the state were free to do this without demonstrating a legitimate aim and that it was necessary to keep the information in this way in pursuit of that aim. Secondly, if article 8(1) is not engaged by the mere keeping of private information, then the state might be free to be thoroughly discriminatory in choosing which information to keep, without contravening article 14. It would be surprising if a decision to keep all the information obtained from, say, black suspects but not from whites did not contravene article 14. But unless the keeping falls within the ambit of article 8 it would not do so.

    78.  I accept that we must interpret the Convention rights in a way which keeps pace with rather than leaps ahead of the Strasbourg jurisprudence as it evolves over time. But it would be surprising if Strasbourg were not to consider it incumbent upon the state to justify its retention and storage of all this information but particularly the DNA samples and profiles. For the reasons given by my noble and learned friends, Lord Steyn and Lord Brown of Eaton-under-Heywood, I agree that this is readily done. The whole community, as well as the individuals whose samples are collected, benefits from there being as large a database as it is possible to have. The present system is designed to allow the collection of as many samples as possible and to retain as much as possible of what it has. The benefit to the aims of accurate and efficient law enforcement is thereby enhanced.

    79.  I therefore agree that these appeals should be dismissed.

LORD CARSWELL

My Lords,

    80.  I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Steyn, and I fully agree with his reasons and his conclusions. I only wish to add a short comment about one aspect of the judgments in the Court of Appeal which requires mention, since I feel that it might be misunderstood and applied incorrectly in future cases.

    81.  In paragraphs 88 and 89 of his judgment Sedley LJ addressed the issue of selecting the pool of comparators in determining whether there had been discrimination. He expressed the view that the approach of the other members of the Court of Appeal to identifying the pool overlooked the importance of the principles to be applied in deciding if there had been indirect discrimination. He went on in paragraphs 90 and 91:

    "90. Central to indirect discrimination is the ostensibly neutral factor which on analysis significantly and unjustifiably disadvantages a protected group. Griggs v Duke Power Co 401 US 424 provides a well known example: because of educational disadvantage, black workers did significantly worse than white workers in literacy tests which were applied to all employees but were objectively unnecessary. The discriminating factor was not facing the literacy test but failing it. But its differential impact could only be measured in a pool consisting of both white and black workers - that is, both those disadvantaged and those not disadvantaged by it. In the present appeals the discriminating factor is not the fact of having had samples lawfully taken; it is being a person who has had them taken but has not then been convicted. To confine the pool for testing its effect to other people in the identical position, as Waller LJ would do, and to conclude - inexorably - that they are all being treated alike, is the equivalent of confining the pool in the Griggs case to black workers. The correct pool in such a case (that is, the pool which will test the particular complaint) is everybody in the same relevant situation: in the Griggs case, all the company's workers to whom the test was given; in the present appeals, all citizens who have not been convicted of an offence.

    91. To take as your pool simply the group which asserts that it is being discriminated against and to find - as you practically always will - that they are all being treated the same is to defeat the rationale of indirect discrimination. To take as your pool a larger group which does not share the relevant characteristic - here, for example, everyone who has had their fingerprints and bodily samples lawfully taken - will be to sidestep the legal issue. The legal issue is not (as in another system it might have been) the absence of discrimination between convicted and acquitted suspects: it is the presence of discrimination between legally innocent people who respectively have and have not been investigated."

    82.  The logic of the reasoning adopted by Sedley LJ is valid in cases of indirect discrimination. In such cases, as he points out, it is necessary to include in the pool both those disadvantaged by the ostensibly neutral factor and those not so disadvantaged. If both classes are not included, then the ostensibly neutral factor which operates differently in respect of each group cannot operate to demonstrate the existence of a difference in result which amounts to discrimination. As Sedley LJ said, to do so defeats the rationale of indirect discrimination.

    83.  The reasoning must, however, be confined to cases of indirect discrimination. In those of direct discrimination the comparison is simply one of comparing the situation of the complainant, and possibly others in like case, with other people in a comparable situation. The imperative created by the need to consider the ostensibly neutral factor does not apply in such a case. The present cases should in my opinion be classed as claims in respect of direct discrimination, for there is no ostensibly neutral factor which turns an apparent equality of treatment into an inequality. The identification of the group making up the pool and the comparison of the situation of each appellant and other persons in like case with that of the other members of the pool is more straightforward. I do not agree that the comparison should be between legally innocent people who respectively have and have not been investigated, as Sedley LJ suggests. Rather I consider, in agreement with Waller LJ, that the relevant pool consists of those persons from whom samples have been lawfully taken. Neither of the appellants was treated any differently from the other persons in that pool and accordingly there is no breach of article 14 of the Convention.

    84.  I agree that the appeals should be dismissed.

LORD BROWN OF EATON-UNDER-HEYWOOD

    85.  I have had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn. I agree with all that he says on each of the issues raised and I wish to add only a few short paragraphs of my own. My concern is simply to indicate how very clear a case this seems to me to be. Indeed my only real problem now, following full investigation of the case with the assistance not only of the parties but from Liberty too, is in discerning any coherent basis on which the challenge can still be sustained.

    86.  Given the carefully defined and limited use to which the DNA database is permitted to be put—essentially the detection and prosecution of crime—I find it difficult to understand why anyone should object to the retention of their profile (and sample) on the database once it has lawfully been placed there. The only logical basis I can think of for such an objection is that it will serve to increase the risk of the person's detection in the event of his offending in future. But that could hardly be a legitimate objection, nor, indeed, is it advanced as such. Such objections as were suggested, however, seem to be entirely chimerical. First, the fear of an Orwellian future in which retained samples will be re-analysed by a mischievous State in the light of scientific advances and the results improperly used against the person's interest. If, of course, this were a valid objection it would apply no less to samples taken from the convicted as from the unconvicted and logically, therefore, it would involve the destruction of everyone's samples. But no such abuse is presently threatened and if and when it comes to be then will be the time to address it. Sufficient unto the day is the evil thereof.

    87.  The second suggested objection is to the retention of profiles obtained from those at one time reasonably suspected of crime but subsequently acquitted or not proceeded against, the objection being that they are thereby stigmatised as properly belonging to the same group as the convicted. This to my mind is an equally unrealistic objection. Mr Gordon QC was quite unable to suggest in whose eyes they would be stigmatised. It should not be forgotten that the profiles of pure volunteers (those falling within section 64(3AC) of PACE) are also retained on the database.

    88.  In short, it seems to me that the benefits of the larger database brought about by the now impugned amendment to PACE (as described in Lord Steyn's judgment) are so manifest and the objections to it so threadbare that the cause of human rights generally (including the better protection of society against the scourge of crime which dreadfully afflicts the lives of so many of its victims) would inevitably be better served by the database's expansion than by its proposed contraction. The more complete the database, the better the chance of detecting criminals, both those guilty of crimes past and those whose crimes are yet to be committed. The better chance too of deterring from future crime those whose profiles are already on the database. And these, of course, are not the only benefits. The larger the database, the less call there will be to round up the usual suspects. Instead, those amongst the usual suspects who are innocent will at once be exonerated. Were these appellants to succeed in their challenge, the cause of justice would be seriously impeded.

    89.  I too would dismiss these appeals.

 
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