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This appeal raises again the lawfulness of the retention by the police of DNA and fingerprints which had been taken on the arrest of individuals against whom no further action was taken. In R (S) v Chief Constable of the South Yorkshire Police [2004] 1 WLR 2196, the House of Lords held that the retention of such data did not breach Article 8 of the European Convention on Human Rights, which enshrines the right to respect for an individual’s private life. However, in S & Marper v United Kingdom (2009) 48 EHRR 50, the European Court of Human Rights robustly disagreed. The European Court held that the retention interfered with the Applicants’ Article 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 Government has indicated an intention to amend the law as a result of the Strasbourg judgment. However, the Commissioner of Police of the Metropolis decided to continue to apply the existing policy on the retention of DNA and fingerprints until such time as the law was changed.

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.

The Divisional Court accordingly held that it was bound to dismiss the claim for judicial review, but granted permission for a ‘leapfrog’ appeal to the Supreme Court. It is not clear whether the Supreme Court will be asked to revisit the application of the rules of precedent in cases such as this. However, the main focus of the appeal will be whether the continued retention of DNA samples and fingerprints breaches Article 8. It is possible that the Supreme Court will endorse the position taken by the House of Lords in the S case; however, the far more likely result is that it will follow the judgment of the European Court of Human Rights and hold that such retention is prima facie unlawful. The remaining issue will be whether it was nevertheless proportionate for the Commissioner to continue to follow his existing policy until such time as the law was changed and clarified by Parliament. There was no indication in the Strasbourg judgment that this would have been permissible; further, it was (and remains) perfectly possible within the existing legal framework for the Commissioner to adjust his policy in light of the Strasbourg judgment. Nevertheless, the exact scope of such a policy is a sensitive matter and it is arguable that the limits should be set by Parliament rather than individual chief police officers.

A further related issue before the Supreme Court arises from the taking and retention of photographs of GC on his arrest. The taking and retention of photographs was not considered in the S & Marper case. The Divisional Court offered the tentative view that Article 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. The basis for the distinction is unclear and may not survive scrutiny in the Supreme Court. 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; this will be considered for the first time by the Supreme Court.

The hearing is listed to take place over two days on 31 January and 1 February 2011, before a seven-judge Supreme Court.