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The Association of Chief Police Officers guidelines on the retention of DNA and fingerprints provide, among other things, for the indefinite retention of biometric data which is acquired on the arrest of individuals against whom no further action is taken. By the time that this appeal reached the Supreme Court, it was common ground that these guidelines were incompatible with ECHR, art 8. The House of Lords had previously thought that the scheme was lawful, in R (S) v Chief Constable of the South Yorkshire Police [2004] 1 WLR 2196. However, in S & Marper v UK (2008) 48 EHRR 50, the European Court of Human Rights robustly disagreed. The European Court held that the retention of such data interfered with the applicants’ art 8 rights and that ‘blanket and indiscriminate nature of the power of retention’, the absence of any time restriction, and the absence of an independent review meant that the interference was disproportionate.

The difficult question for the Supreme Court was what should be done about this. This raised two issues. First, should the Court issue a declaration of incompatibility under section 4 of the Human Rights Act 1998? This issue rested principally on whether the Police and Criminal Evidence Act 1984, s 64(1A) – which by amendment conferred on the police the power to retain biometric data on suspects who have been acquitted or, indeed, not even prosecuted – requires a scheme of this nature, or whether that section could be interpreted so as to permit a scheme which was compatible with Article 8. Secondly, if the Court decided that s 64(1A) could be interpreted compatibly with the Convention, should it order ACPO to revise its guidelines or should it simply issue a declaration that the current scheme was unlawful and leave the resolution of the matter to Parliament?

By a majority of 5 to 2, the Supreme Court held that s 64(1A) could be interpreted compatibly with art 8 and that, accordingly, no declaration of incompatibility should be made. However, because this matter was already being considered by Parliament and because it involved sensitive and difficult questions, it would not be appropriate for the Court to make decisions about the facts of the individual cases or to make a specific order requiring ACPO to reconsider the guidelines. The matter should be left to Parliament to resolve.

Background

GC was arrested on 20 December 2007 on suspicion of assault. The police took a DNA sample and fingerprints. (They also took photographs, but these featured little in the case: see below.) On 21 February 2008, GC was informed that no further action would be taken. Consistently with the ACPO guidelines, the police refused to destroy the data they had collected.

C was arrested on 17 March 2009 on suspicion of rape, harassment and fraud. Again, DNA samples and fingerprints were taken and retained. No action was taken on the harassment and fraud allegations, but C was charged with rape. However, on 5 May 2009 the prosecution offered no evidence and he was acquitted. Again, the police refused to destroy the data they had collected.

GC and C sought to challenge the retention of their DNA and fingerprints on an application for judicial review. The primary issue before the Divisional Court (Moses LJ and Wyn Williams J) was whether that court was bound by the House of Lords judgment or the European Court of Human Rights judgment. Unsurprisingly, the Divisional Court followed the clear ruling by the House of Lords in Kay v London Borough of Lambeth [2006] AC 465 that domestic rules of precedent applied. It made no difference that, in the present case, the relevant decision of the Strasbourg court followed from the same proceedings as the conflicting House of Lords judgment. Nor was it relevant that the issue was one of proportionality, at least absent any material change of circumstances.

On 16 July 2010, the Divisional Court accordingly gave a judgment ([2010] EWHC 2225 (Admin)) holding that it was bound to dismiss the claim for judicial review, but granted permission for a ‘leapfrog’ appeal to the Supreme Court.

The steps taken by the Government in response to the European Court decision

The European Court handed down its judgment in Marper on 4 December 2008. At paragraph 134, it stated that:

“It will be for the Respondent state to implement . . . appropriate general and/or individual measures to fulfil its obligations to secure the rights of the applications and other persons in their position to respect for their private life.”

On 16 December 2008, the Secretary of State announced that children under the age of 10 would be removed from the DNA database. This alone plainly did not rectify the faults identified by the European Court. However, no other changes have since been made to the ACPO guidelines or to the legislation. Given that more than two years have since passed, one might be forgiven for thinking that the UK authorities have not acted with due dispatch to remedy the incompatibility between the scheme and art 8.

Nevertheless, the matter has been under consideration in the interim period. Some details can be found in the judgments of Lord Dyson at paragraphs 7-11 and Lord Brown at paragraphs 127-131. At any rate, there is currently before Parliament a Protection of Freedoms Bill containing detailed provisions concerning the retention of biometric data which broadly reflect the position in Scotland. This system permits the retention of data of a person suspected, but not convicted, of offences only in limited circumstances: for instance, data taken from a person suspected of certain sexual or violent offences may be retained only for three years, unless a court directs otherwise. The Scottish scheme was cited and apparently endorsed by the European Court in the Marper case.

The issues

As noted above, it was accepted before the Supreme Court – and by all seven justices – that the ACPO scheme was in breach of Article 8 of the Convention. On the face of it, then, the scheme was unlawful, because s 6(1) of the HRA provides that:

“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”

C accordingly sought an order that the scheme was unlawful. GC sought even more: he wanted an order quashing the scheme and requiring the police to reconsider his case in accordance with art 8.

However, the Commissioner of Police of the Metropolis argued that he had no choice but to operate a scheme on these terms because that was clearly Parliament’s intention in enacting PACE, s 64(1A). He accordingly argued that, by virtue of s 6(2)(b) of the HRA, the scheme was not unlawful. S 6(2)(b) provides an exception to the general rule that public authorities must act compatibly with the Convention where ‘in the case of one or more provisions of, or made under, primary legislation which cannot be read of given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions’. Accordingly, the only relief available to the appellants was a declaration of incompatibility made under s 4 of the HRA.

The judgments

The Supreme Court, sitting as a court of seven justices, handed down its judgment on 18 May 2011. Lord Dyson gave the leading judgment for the five-member majority, which also comprised Lord Phillips, Lady Hale, Lord Judge and Lord Kerr.

He first considered the argument that it was not possible to give effect to PACE, s 64(1A) in a way which was consistent with the European Court’s judgment in Marper. At first blush, this was a surprising proposition. S 64(1A) appears to confer a discretion:

“Where—(a) fingerprints, impressions of footwear or samples are taken from a person in connection with the investigation of an offence, and (b) subsection (3) below does not require them to be destroyed, the fingerprints, impressions of footwear or samples may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence, the conduct of a prosecution or the identification of a deceased person or of the person from whom a body part came.” (Emphasis added)

On the face of it, therefore, there was nothing in the primary legislation which required the scheme to be in its current form. Indeed, the appellants appear to have accepted that they could not rely on s 6(2)(a) of the HRA, which provides an exception from the general rule that public authorities must act compatibly with the Convention when ‘as a result of one or more provisions of primary legislation, the authority could not have acted differently’.

The main thrust of the argument was that it was Parliament’s underlying intention in enacting s 64(1A) that data taken from suspects in connection with the investigation of an offence should be retained indefinitely in the interests of the prevention, investigation and detection of crime. Relying on the seminal case of Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, the appellants argued that any scheme made under s 64(1A) must promote that objective. They claimed that it was not possible to construe section 64(1A) otherwise, even using the section 3 interpretative obligation. Accordingly, they argued, s 6(2)(b) of the HRA applied.

The majority did not accept the basic premise. Lord Dyson accepted that Parliament had intended (i) to remove the previous obligation to destroy data as soon as practicable after a person was cleared of an offence, (ii) to create a scheme for the retention of data even when suspects were not prosecuted, and (iii) to provide for the use of that data for purposes related to the prevention or detection of crime. He accepted that Parliament had envisaged an expanded – even a greatly expanded –DNA database. However, as Lord Dyson held at paragraph 35:

“section 64(1A) permits a policy which (i) is less far-reaching than the ACPO guidelines; (ii) is compatible with article 8 of the ECHR; and (iii) nevertheless, promotes the statutory purposes. Those purposes can be achieved by a proportionate scheme. It is possible to read and give effect to section 64(1A) in a way which is compatible with the ECHR and section 6(2)(b) of the HRA cannot be invoked to defeat the claim that the ACPO guidelines are unlawful by reason of section 6(1) of the HRA.”

However, the minority, Lords Rodger and Brown, did accept the Commissioner’s argument. Recounting the history leading to the insertion of PACE, s64(1A) by amendment, Lord Rodger held at paragraph 97 that ‘Parliament’s purpose . . . was to ensure that, in future, instead of being destroyed, samples taken from suspects would be retained indefinitely and so remain available to the police on the national DNA database’. This was to remedy the previous position, under which the requirement to destroy such data could lead to unpalatable failures to detect and prevent crime. Accordingly, referring to the seminal finding in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 that statutory discretions are conferred with the intention that they be used to promote the policy and objects of the Act, Lord Rodger held that the police had no option but to operate a scheme under which samples were retained indefinitely, save perhaps for some ‘possible very narrow exceptions’.

However, as the majority pointed out, if it really had been Parliament’s intention to define the power to retain data in this way, it would surely have said so. Further, as Lady Hale pointed out, in effect Lord Rodger’s approach involved inserting words into PACE, s 64(1A) to express this incompatibility, whereas the interpretative obligation under s 3 of the HRA tends towards the exact opposite, sometimes requiring the insertion of words to remove incompatibility.

Given the majority finding that the guidelines were unlawful, the remaining issue was the role that the Court should play in dealing with that unlawfulness. Lord Dyson pointed out that draft legislation was currently before Parliament and that, although it was not certain, it appeared likely that the legislation would be brought into force later in 2011. At paragraphs 46-8, he held that:

“In those circumstances, in my view it is appropriate to grant a declaration that the present ACPO guidelines ([even] amended as they have been to exclude children under the age of 10), are unlawful because, as clearly demonstrated by Marper ECHR, they are incompatible with the ECHR . . . Since Parliament is already seised of the matter, it is neither just nor appropriate to make an order requiring a change in the legislative scheme within a specific period . . .

“Nor would it be just or appropriate to make an order for the destruction of data which it is possible (to put it no higher) it will be lawful to retain under the scheme which Parliament produces.

“. . . If Parliament does not produce guidelines within a reasonable time, then the appellants will be able to seek judicial review of the continuing retention of their data under the unlawful ACPO guidelines and their claims will be likely to succeed.”

The other members of the majority agreed. Lady Hale emphasised that the absence of an order against the Commissioner did not mean that ACPO should not set about promulgating some new and compliant guidelines if Parliament did not act within a reasonably short time.

Photographs

A further related issue in the case arose from the taking and retention of photographs of GC on his arrest. The taking and retention of photographs was not considered in the Marper case. The Divisional Court offered the tentative view that art 8 was not engaged in these circumstances, drawing a distinction between photographs taken on arrest and photographs taken by the police in the street of an individual going about his lawful business: the latter was held by the Court of Appeal in Wood v Commissioner of Police for the Metropolis [2009] EWCA Civ 414 to have breached Article 8. In any event, the Divisional Court did not have the material before it to consider the whether any such breach was proportionate to a legitimate aim.

The Supreme Court was similarly faced with a lack of evidence on the issue and accordingly declined to express an opinion on it (see paragraphs 50-51). Accordingly, it remains to be seen whether the distinction drawn by the Divisional Court will withstand scrutiny in case in which the point is fully argued.

Conclusion

To a very significant extent, this case turned on its own facts and its own particular legislative provisions. There was a difference of opinion between the judges as to whether the Parliamentary intention lying behind s 64(1A) was that biometric samples should always be retained indefinitely. However, none of the justices appeared to cast doubt on the proposition that, if this had indeed been Parliament’s intention, the guidelines would have been lawful by virtue of s 6(2)(b) of the HRA. Accordingly, this case may be authority for the proposition that, even if a statutory provision is expressed in discretionary terms, the interpretative obligation under s 3 of the HRA cannot be used to require that discretion to be exercised in way which is inconsistent with what the court’s deduce to be Parliament’s underlying intentions. If so, this arguably goes further than previous authority. It has long been understood that section 3 cannot be used to render compatible a term which is prima facie incompatible if to do so would go ‘against the grain’ of the legislation; but it has not been clear that section 3 cannot be used to interpret compatibly with the Convention a provision which is not expressly or on its face incompatible at all, but whose incompatibility arises solely from the deduced underlying ‘thrust’ of the legislation. In truth, it is difficult to see this situation arising very often.

This case also highlights the difficulties for claimants and for the courts when policies raising complex or politically-sensitive issues are found to be incompatible with the Convention. In such cases, it may well be appropriate to allow the authorities some time to reconsider and alter the scheme, rather than making substantive remedial orders. In deciding to grant no substantive relief to the appellants in this case, it might be thought that the Court was being overly generous in terms of the delay it was willing to countenance, given that the European Court’s judgment in Marper is over two years’ old. Nevertheless, it should be borne in mind that the determinative feature in this case was that the terms of the new scheme were being considered by Parliament; and, even then, the Court made it clear that if Parliament did not come up with an amended scheme soon, and ACPO took no steps of its own to remedy the incompatibility of the existing scheme, any fresh claim for judicial review challenging the continued retention of the appellant’s data would be likely to succeed.