On appeal from: [2012] NIQB 88

The Court dismissed the appeal by a majority of 4:1 regarding the continued retention of the appellant’s fingerprints, photograph and DNA samples by the respondent.

At present the statutory position in Northern Ireland is that the Police Service of Northern Ireland may retain fingerprints, photographs, DNA samples and DNA profiles for an indefinite period after they have fulfilled the purpose for which they were taken, but they may only be used for specified policing purposes.

The appellant challenged the retention following the recent ruling in the ECtHR in S & Marper v UK (2009) 48 EHRR 50, which held that the UK’s policy of indefinite retention after proceedings had been acquitted or discontinued was disproportionate interference with the individual’s rights under the ECHR, art 8. The appellant pursues a legitimate aim claim under art 8(2) based on that interference. The Divisional Court held that the interference was proportionate.

Giving the majority judgment Lord Clarke stated that S & Marper was concerned only with the position of suspected but non-convicted persons, not convicted persons. He reasoned that the policy was proportionate for a number of reasons including that the potential benefit to the public of retaining the DNA profiles of those who are convicted is considerable and outweighs the interference with the right of the individual, and that the ECtHR had recognised the importance of the use of DNA material in the solving of crime and that the interference in question was low.

Lord Kerr gave the dissenting judgment focusing on the analysing (i) whether there is a rational connection between the legislative objective and the policy; and (ii) whether the policy goes no further than is necessary to fulfill the objective.

For judgment, please download: [2015] UKSC 29
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