Case Comment: Gaughran v The Chief Constable of the Police Service of Northern Ireland  UKSC 29
11 Tuesday Aug 2015
The Supreme Court handed down judgment on 13 May 2015, dismissing the appeal. Lord Clarke (with whom Lord Neuberger, Lady Hale and Lord Sumption agreed) gave judgment for the majority, finding that the policy of the Police Service of Northern Ireland (“PSNI”) to indefinitely retain the biometric data of adults convicted of recordable offences was proportionate.
The Appellant had pleaded guilty to driving with excess alcohol, a recordable offence. His fingerprints, photograph, and a DNA sample (from which a DNA profile was produced) had been obtained by the PSNI. Whilst his DNA sample will be destroyed, in line with the Criminal Justice Act (Northern Ireland) 2013, the DNA profile will be retained indefinitely. The Appellant brought judicial review proceedings on the basis that the indefinite retention of his personal data breached his right to respect for private life protected by ECHR, art 8. The High Court in Northern Ireland dismissed the appeal.
Supreme Court majority decision
Before the Supreme Court, the PSNI and the Secretary of State accepted that the indefinite retention of a person’s DNA profile, fingerprints and photograph interfered with the Appellant’s article 8 rights . The sole issue, therefore, was whether the indefinite retention policy was proportionate.
The majority, agreeing with Girvan LJ in the Divisional Court, held that the ECtHR in S and Marper v UK  48 EHRR 50 was not considering the position of convicted people , and confined the principles of the Strasbourg decision to the retention of data obtained from unconvicted persons. Emphasis was placed on the ECtHR’s acknowledgment in S and Marper of the utility of retaining biometric information in combatting crime.
Lord Clarke emphasised the differences between the PSNI’s policy and the scheme considered in S and Marper. Firstly, the PSNI’s policy involved the retention of DNA profiles, which contain much less data than DNA samples. Secondly, it applied only to adults, unlike the scheme in S and Marper which did not distinguish between adults and children . Lord Clarke found no support in S and Marper for the proposition that when a conviction becomes spent, data should not be indefinitely retained .
The majority accepted that the public benefits of retaining the DNA profiles of convicted persons are “potentially considerable” and outweigh interference with an individual’s Article 8 rights . The retention of a DNA profile was also held to be useful for establishing that a person did not commit a particular offence .
Lord Clarke found a lack of consensus amongst Member States as to data retention policies , and held that the PSNI’s policy was within the legislature’s margin of appreciation. The majority endorsed the reasons given by Girvan LJ in the Divisional Court  NIQB 88 for finding that the indefinite retention policy was proportionate .
Lord Kerr’s dissent
Lord Kerr found that the indefinite retention policy was disproportionate, emphasising that any interference must be “necessary in a democratic society” and the reasons given by the state to justify the interference must be “relevant and sufficient” . He held that the critical questions in the appeal were whether there is a rational connection between the legislative objective and the policy, and whether it goes no further than is necessary to achieve the objective. 
Lord Kerr stressed that the objective was not to create as large a database as possible as a resource for fighting crime. Rather, the objective was the actual detection of crime and identification of future offenders, and it was necessary to show that this objective would be advanced . However, there was “a striking lack of hard evidence” to support the claim that the blanket retention of the data of all persons convicted of recordable offences would make a significant contribution towards detecting future crime . This was particularly so, given that recordable offences occupy a wide spectrum of criminal activity, including very trivial offences (e.g. wilful doorbell ringing; being drunk in the street) . Lord Kerr was critical of the lack of evidence as to the likelihood of reoffending, noting that the PSNI accepted that there was “no robust evidence base for the current policy” ). He found that there was no rational connection between the retention policy and reducing crime, which was necessary regardless of whether the data belonged to convicted or unconvicted persons .
Charting the development of the “least intrusive means” test in domestic, ECtHR, EU and Canadian case law,  Lord Kerr held that a “far more nuanced, more sensibly targeted policy” could be devised, which in the very least removed some of the less serious offences, and incorporated a system of review and gradation of retention periods to reflect the seriousness of the offence .
As to the decision in S and Marper, Lord Kerr points out that the underlying principles in the decision are clearly relevant to an assessment of the proportionality of the retention policy: the lack of differentiation based on the gravity of the offence, the indefinite retention, regardless of offence, the lack of independent review, and the stigmatisation of individuals by the retention of data . Lord Kerr is forcefully critical of the retention of data where convictions have become spent, stating that “if the principle of rehabilitation is to have any meaning, ex-offenders… cannot be defined by the fact of their former offending” .
The majority’s assessment of proportionality focused on whether the PSNI’s policy fell within the state’s margin of appreciation, rather looking at whether less restrictive measures should have been adopted , and there was no close analysis of whether the measure was rationally connected to the legislative objective. The majority seemed at pains to distinguish the case from ECtHR decision in S and Marper, rather than evaluating and applying the underlying principles of the Strasbourg decision.
In contrast, Lord Kerr’s dissenting judgment adopts a far more structured approach to proportionality, closely analysing the four questions identified by Lord Reed in Bank Mellat v HM Treasury (No 2)  AC 700, with particular emphasis on the rational connection between the interference and the legislative objective and the “least intrusive means” test . Lord Kerr is critical of affording the state a margin of appreciation where it has not properly evaluated the issues at stake. He also emphasises that it is the responsibility of the domestic court to closely examine the proportionality of a measure, without being unduly influenced by whether Strasbourg, on consideration of an issue, might give Member States a broader margin of appreciation .
However, the decision in Gaughran demonstrates the reluctance of the majority of the court to apply a strict proportionality assessment to measures infringing an individual’s right to privacy, where those measures are considered to fall within the state’s discretion. Nonetheless, whilst the decision gives the go-ahead for the indefinite retention of convicted adults’ DNA profiles, it remains to be seen what the position will be for convicted children.
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