Communicated on 13 July 2017
FIRST SECTION
Application no. 45245/15
Fergus GAUGHRAN
against the United Kingdom
lodged on 20 October 2015
STATEMENT OF FACTS
The applicant, Mr Fergus Gaughran, is a British national, who was born in 1972 and lives in Newry. He is represented before the Court by Mr P. Fitzsimons of Fitzsimons Mallon Solicitors, a lawyer practising in Newry.
A. The circumstances of the case
The facts of the case may be summarised as follows.
1. The background facts
On 14 October 2008 at approximately 1.35 a.m. the applicant was stopped at a police checkpoint. He was arrested for the recordable offence (i.e. an offence punishable by imprisonment) of driving with excess alcohol contrary to the Road Traffic (Northern Ireland) Order 1995 and taken to a police station where he provided samples of breath. They were found to contain 65 milligrams of alcohol per 100 millilitres of breath: 30 milligrams in excess of the permitted limit. On the same day the following information or data relating to the applicant was taken from him: fingerprints; a photograph; and a non-intimate DNA sample by buccal swab. A DNA profile (a digital extraction of key data) was subsequently taken from the DNA sample.
On 5 November 2008 the applicant pleaded guilty to the offence of driving with excess alcohol at Newry Magistrates Court. He was thus a convicted person. He was fined 50 pounds sterling (GBP) and disqualified from driving for 12 months but no immediate or suspended custodial sentence was imposed on him. Under the relevant legislation, his conviction was spent after five years, i.e. by 5 November 2013. He has no other criminal convictions.
On 15 January 2009, just over two months after the applicant pleaded guilty, his solicitor wrote to the Police Service of Northern Ireland (the “PSNI”) claiming that the retention of the applicant’s photograph, fingerprint and DNA sample was unlawful. He requested that they be destroyed or returned to the applicant. The PSNI replied on 27 February 2009 saying that the legal consequence of the decision of this Court in S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, ECHR 2008 was a matter for the United Kingdom Government and that any changes to the law of the United Kingdom would be fully complied with by the PSNI.
The PSNI continues to retain, and intends to retain indefinitely within its records the DNA profile, fingerprints and photograph relating to the applicant that were taken from him on 14 October 2008. At the time of the domestic litigation it was anticipated that the PSNI would destroy the DNA sample in the near future, following anticipated changes in the law (see section b. below).
(a) The High Court of Justice Northern Ireland
The applicant sought leave to bring a judicial review challenging the PSNI’s continued retention of his biometric data that is, his fingerprints, photograph and DNA profile. In these proceedings the applicant sought:
“(a) a declaration that the indefinite retention of the data was unlawful and constituted an unjustifiable interference with his right to respect for private life under Article 8 of the convention; and
(b) an order of prohibition preventing the respondent from making any use of the relevant data.”
The High Court gave its judgment on 13 November 2012. It found that the retention of the applicant’s biometric data was an interference under Article 8 of the Convention but that interference was justified and not disproportionate for the following eleven reasons:
“(i) The building up of a database of such data from those convicted of offences provides a very useful and proven resource in the battle against crime by reason of the assistance it provides in identifying individuals. It is clear that the larger the database the greater the assistance it will provide. While a universal database would be of immense help in combatting crime, weighing the private rights of individuals against the good which would be achieved by such a universal system requires the striking of a fair balance. Experience has shown that those who have committed offences may go on to commit other offences. A state decision to draw the line at those convicted of a substantial category of offences is entirely rational and furthers the legitimate aim of countering crime so as to protect the lives and rights of others.
(ii) The rights and expectations of convicted persons differ significantly from those of unconvicted persons. The striking of a balance between the public interest and the rights of a convicted or an unconvicted individual will inevitably be appreciably different. Strasbourg recognises that even in the case of some unconvicted persons retention for a period may be justifiable in the public interest.
(iii) A person can only be identified by fingerprints and DNA sample either by an expert or with the use of sophisticated equipment. The material stored says nothing about the physical make up, characteristics or life of the person concerned and it represents objective identifying material which can only be relevant or of use when compared with comparative material taken from a person lawfully subjected to a requirement to provide such material for comparison.
(iv) The use to which the material can be lawfully put is severely restricted by the legislation.
(v) As well as being potentially inculpatory the material may be exculpatory and thus in ease of a person such as the applicant. If it is inculpatory its use assists in the detection of someone likely to have been involved in crime which is a matter of deep interest to the public.
(vi) There is in place an exceptional case procedure which permits of a possibility of an application to have data removed.
(vii) Any differentiation within the system between categories of convicted persons calls for administrative action and has the potential for administrative complexity. Lord Steyn described how there was the potential for interminable and invidious disputes where differentiation is operated. While he was making that point in the context of differentiation between convicted and unconvicted persons (and thus was in error according to the Strasbourg court) the point retains its force in the context of differentiation between convicted persons. Carswell LCJ pointed out in Re McBride [1997] NI 269 at 274 that the legislature wished to have as wide a cover for the database as possible in order to give the police the best chance of detecting criminal offenders. Marper requires protections for unconvicted persons and the current legislation and policy have limited the retention of data to those convicted of recordable offences. To allow further exceptions would in the view of the authorities undermine the effectiveness of the process which is designed to build up a database of those who have been involved in criminality to assist in the war against crime. Such a conclusion by the state authorities is legitimate and rational.
(viii) The current policy in fact does distinguish between (a) unconvicted persons and those convicted of offences which are not recordable and (b) those convicted of offences which are recordable. This represents a policy and legislative intent which is not blanket or indiscriminate as such but one which distinguishes between cases. The choice of that differentiation is one involving the exercise of judgment by the state authorities which seeks to balance, on the one hand, the very limited impact of retention and use of such material on a person’s real private life and its minimal impact on the intimate side of his life and, on the other hand, the benefit to society flowing from the creation of as effective a database as legitimately possible to help in combatting crime. The choice to retain the data of those convicted of recordable offences represents the exercise of a balanced and rational judgment by the authorities.
(ix) In this case the offence committed by the applicant cannot, as the applicant asserts, be described as minor or trivial. It was an offence of a potentially dangerous anti-social nature. The criminal law has as one of its aims the protection of the lives of others and the consumption of alcohol by a driver endangers human life. Indeed the state under its operative duties under Article 2 must have in place laws which protect the lives of others. The offence was a recordable offence being one in respect of which a period of imprisonment could be ordered.
(x) Time limitations on the retention of data for particular categories of offences can be imposed as has occurred in some legal systems such as in the Netherlands ( See W and Van der Velden). Different countries operate different policies in this field and some other countries follow practices similar to those followed in the United Kingdom. Any time restriction is inevitably somewhat arbitrary and it is difficult to point to any particular reason why one particular period as opposed to another should be chosen. To introduce time limitations for some offences simply to avoid a possible charge of disproportionality smacks of defensive policy making in a field which requires a proper balancing of the interests of the public against the consequences of criminal activity. The introduction of different time periods for different offences or for different sentences would clearly add to the administrative burden and would require changes and deletion of recorded data. This complexity would be aggravated in the case of those found guilty periodically of repeat offending in respect of minor offences. The removal of such data would give the offender no benefit other than the knowledge that his data is no longer recorded. As already noted the retention of the data represents a very minor intrusion into his private life.
(xi) The retention of the data serves the added purpose of discouraging a convicted offender from reoffending for the offender has the knowledge that the police have available data which could lead to his detection. The permanent retention of that data thus serves a useful long term purpose in that regard.
These factors point to the conclusion that the policy of indefinite retention is not disproportionate and, accordingly, the applicant’s application must be dismissed.”
(b) The Supreme Court
The applicant appealed to the Supreme Court which gave judgment on 13 May 2015. At the outset, the Supreme Court recalled the question certified by the lower court which formed the subject of the appeal as follows:
"THE COURT CERTIFIES that the following point of law of general public importance is involved in the decision of the court.
Is the policy of the Police Service of Northern Ireland to retain indefinitely the DNA profile, fingerprints and photographs of a person convicted of a recordable offence in breach of article 8 of the ECHR?"
It went on to underline that:
“As can be seen, there is no reference to the DNA sample. The PSNI intends to retain the DNA sample but only until the commencement of section 9 and, with it, Schedule 2 of the Criminal Justice Act (Northern Ireland) 2013 ("the 2013 Act"). These provisions have yet to come into force but are expected to do so in the comparatively near future. When they do come into force, Schedule 2 of the 2013 Act provides for the insertion of a new article 63P into the 1989 Order. Article 63P(2) requires the destruction of all DNA samples as soon as a DNA profile has been taken or within six months of the taking of the DNA sample. It will not therefore be possible to retain the appellant’s DNA sample once section 9 and Schedule 2 of the 2013 Act come into force. In these circumstances the appeal was argued on the assumption that the appellant’s DNA sample will not be retained. The appeal is thus concerned with the PSNI’s policy with regard (a) to the retention of a convicted person’s DNA profile and fingerprints, which I will refer to as his or her biometric data, and (b) to the retention of any photograph taken of him or her by the PSNI as described below”.
The Supreme Court then examined the applicant’s claim and found that the indefinite retention of his data was proportionate. In arriving at its conclusion it noted that the applicant’s photograph was retained on a standalone database which does not have the capability to match photographs, whether by way of facial recognition technology or otherwise.
Lord Clarke gave the leading judgment for the majority. He underlined that the Court’s judgment in S. and Marper (cited above) only concerned “unconvicted” persons. That did not mean that system in Northern Ireland (and the United Kingdom) for convicted persons was necessarily proportionate. However, the level of interference in the applicant’s Article 8 rights was low, and a fair balance must be struck between competing public and private interests when considering whether that interference is justified. The United Kingdom struck that balance by choosing recordable offences as the touchstone for retention, and this appeared proportionate and justified. He took into account the fact that the applicant was only fined and not imprisoned but highlighted that driving with excess alcohol is a serious offence. He also noted Principle 7 of the Committee of Ministers’ Recommendation No. R(87)15 as giving some support for the proposition that the fact that a conviction may become spent is potentially relevant, but did not find this was decisive. He also noted that the scheme under scrutiny applied only to adults, whereas in S. and Marper (cited above) the Court was examining a scheme which also applied to minors.
He went on in the course of his analysis to consider the margin of appreciation available to the authorities. In this connection he reviewed the retention regimes in other Council of Europe states (see Annex B to the judgment) and commented as follows:
“In S. and Marper the ECtHR, when considering the margin of appreciation in the case of those who were acquitted, placed some reliance upon the fact that the United Kingdom was alone or almost alone in retaining biometric data in such cases. There is a much broader range of approaches in the case of those who have been convicted. The Secretary of State produced an annex setting out a summary of inclusions and removal criteria in other jurisdictions. It is attached to this judgment as Annex B. It shows that in such cases many countries retain biometric data for very long periods. In addition to England and Wales and Northern Ireland, Ireland and Scotland are I think the only jurisdictions which provide for indefinite retention. However, there are several states which provide for retention until death. They are Austria: five years after death or 80 years of age; Denmark: two years after death or at 80 years of age; Estonia: ten years after death; Finland: ten years after death; Lithuania: 100 years after inclusion or ten years after death; Luxembourg: ten years after death; The Netherlands: as stated above and 80 years after a conviction against minors; Romania five years after death or 60 years of age; and Slovakia: 100 years after date of birth. It seems to me that in the context of a person’s rights under article 8 there is little, if any, difference between retention for an indefinite period and retention until death or effectively until death.
Annex B shows that there are other formulae. They include Belgium: 30 years after inclusion; France: 40 years after the end of the sentence or after the age of 80; Hungary: 20 years after the sentence has been served; Latvia: 75 years of age; Poland: 35 years after conviction; Germany: DNA profiles are reviewed after ten years and removal depends on a court decision; Italy: 20 years after the incident but no profile can be kept for more than 40 years; and Sweden: ten years after sentence. It can thus be seen that member states have chosen many different approaches but there is, in my opinion, no principled basis upon which the system in operation in Northern Ireland can be held to be disproportionate, especially when compared with the significant number of countries which retain DNA profiles until death or effectively until death. Very few states have a process of review”.
He then recalled the eleven points set out by the High Court of Northern Ireland and concluded:
“I agree with that analysis and would dismiss the appeal. I would answer the certified question (quoted at para 8 above) in the negative.”
Lord Kerr gave a dissenting judgment. He took a different approach to the question of whether the interference was justified, analysing the rational connection between the measure and its aim; whether the measure was no more than necessary to achieve the aim; and whether the measure was the least restrictive means to arrive at the stated aim. Answering those questions he concluded:
“One must return, therefore, to the question whether a more tailored approach than that of the current PSNI policy in relation to the retention of biometric materials, sufficient to satisfy the aim of detecting crime and assisting in the identification of future offenders, is possible. To that question only one answer can be given, in my opinion. Clearly, a far more nuanced, more sensibly targeted policy can be devised. At a minimum, the removal of some of the less serious offences from its ambit is warranted. But also, a system of review, whereby those affected by the policy could apply, for instance on grounds of exemplary behaviour since conviction, for removal of their data from the database would be entirely feasible. Similarly, gradation of periods of retention to reflect the seriousness of the offence involved would contribute to the goal of ensuring that the interference was no more intrusive than it required to be.
In this context, article 5(e) of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data should be noted. It provides that "personal data undergoing automatic processing shall be ... preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which it is required". There is no evidence that consideration has been given to the question of whether it is necessary for the effective combatting of crime that the materials concerned in this case should be retained indefinitely.
For the intervener, the Secretary of State for the Home Department, Mr Eadie QC accepted that the decision as to how long and for what offences biometric and other data should be retained called for a nuanced decision. He argued that this had been achieved by the exclusion of non-recordable offences and offences committed by children and by the fact that such material from those not convicted was no longer retained. He was unable to point to evidence, however, that the question of whether it was necessary that there be retention of all data from all convicted of recordable offences for all time had been considered. Absent such consideration and in light of the fact that it is eminently possible to conceive of measures which are less intrusive but which would conduce to the avowed aim of the policy, it is simply impossible to say that the policy in its present form is the least intrusive means of achieving its stated aim”.
He went on to consider whether a fair balance had been struck, and how the state’s margin of appreciation should be viewed in the context of the case. Concerning the latter, he highlighted that.
“A margin of appreciation is accorded to a contracting state because Strasbourg acknowledges that the issue in question can be answered in a variety of Convention-compatible ways, tailored to local circumstances. But the margin of appreciation that is available to the state does not extend to its being permitted to act in a way which is not Convention compliant. If the state acts in such a way, it cannot insulate itself from challenge by recourse to the margin of appreciation principle. In Wingrove v. UK (1997) 24 EHRR 1, para 58, a ‘broad margin’ case, ECtHR emphasised that authorities within the state in question were in a better position than international judges to give an opinion "on the exact content of these requirements with regard to the rights of others as well as on the ‘necessity’ of the ‘restriction’". Domestic courts therefore have the responsibility to examine closely the proportionality of the measure without being unduly influenced by the consideration that the Strasbourg court, if conducting the same exercise, might feel constrained to give the contracting state’s decision a margin of appreciation.
For the reasons that I have given, I have concluded that the issues which must be considered under the proportionality exercise have not been properly addressed and that, if they had been, a more restricted policy would have been the inevitable product. The margin of appreciation cannot rescue the PSNI policy from its incompatibility with the appellant’s article 8 right.”
He concluded that:
“... the policy of retaining indefinitely DNA profiles, fingerprints and photographs of all those convicted of recordable offences in Northern Ireland is incompatible with article 8 of ECHR.”
B. Relevant domestic law and practice
1. Retention of biometric data (DNA samples and profiles, fingerprints)
(a) Retention of DNA samples and profiles, and fingerprints in England Wales, and Northern Ireland
(i) Domestic law prior to S. and Marper v. the United Kingdom
Up until 11 May 2001, Section 64(1) of the Police and Criminal Evidence Act 1984 (“PACE”) included a requirement that DNA samples be destroyed “as soon as practicable after the conclusion of the proceedings” (S. and Marper v. the United Kingdom cited above, § 28). It did not require destruction of any DNA profile derived from a DNA sample.
From 11 May 2001, PACE allowed the indefinite retention of fingerprints, DNA material (including samples) and photographs of any person of any age suspected of any recordable offence in England, Wales and Northern Ireland. These provisions applied regardless of whether the person was ultimately convicted or not.
On 4 December 2008 this Court found that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences failed to strike a fair balance between the competing public and private interests. It concluded that the retention at issue constituted a disproportionate interference with the applicants’ right to respect for private life which could not be regarded as necessary in a democratic society (S. and Marper, cited above, § 125).
The relevant domestic law and practice regarding the collection and retention of biometric data are set out in detail in the Court’s judgment (see §§ 26-37).
(ii) Domestic law after S. and Marper in England and Wales
The Protection of Freedoms Act 2012 (“POFA”) came into force on 31 October 2013. It included provisions to amend the DNA and fingerprints retention scheme set out in PACE, in England and Wales.
The provisions in PACE as amended provide that DNA samples must be destroyed as soon as a DNA profile has been taken, or within six months of the taking of the DNA sample.
DNA profiles for minors and adults arrested for a minor crime are deleted at the time of the decision not to charge; to discontinue proceedings or on acquittal. The Act also introduced a time limit of three years for the retention of fingerprints and DNA profiles for individuals arrested but not convicted for a serious offence, with a possible, single extension of two years upon application of the police to the national courts.
DNA profiles and fingerprints taken from a person convicted of a recordable offence may be retained indefinitely. However, where (i) the person convicted is under the age of 18 years at the time of the offence, (ii) the offence is a "minor" recordable offence (meaning an offence which neither attracts a custodial sentence of more than five years nor is a "qualifying offence"), and (iii) the person has not previously been convicted of a recordable offence, the period of retention of such material may be shorter: the length of the sentence plus five years where the person concerned receives a custodial sentence of less than five years, or, if no custodial sentence was given, five years from the time when the fingerprints or DNA sample were taken, as the case may be. These provisions are subject to the person not re-offending during the relevant period: if the person is convicted of another recordable offence during the relevant period, the material may then be retained indefinitely. Where the custodial sentence is five years or more or where the offence is a "qualifying offence" the material may again be held indefinitely.
A Biometrics Commissioner has been appointed, whose role is, inter alia, to keep the retention and use of biometric material under review.
(iii) Domestic law after S. and Marper in Northern Ireland
The law in Northern Ireland was not changed following S. and Marper (cited above). At the time of the domestic proceedings, it was intended to enact the Criminal Justice Bill Northern Ireland which would have brought into force in Northern Ireland, the changes made under POFA (see section C. on “The Committee of Ministers of the Council of Europe”).
The current practice of the PSNI is to take photographs, fingerprints, a DNA sample and profile from all persons who are arrested for a recordable offence. That biometric data is retained indefinitely.
The Association of Chief Police Officers ("ACPO") issued guidance entitled "Exceptional Case Procedure for the Removal of DNA fingerprints and PNC records" on 16 March 2006. The exceptional case procedure states that exceptional cases will be rare. The document states that while it is not recommended that any pro-active exercise be undertaken to determine potentially exceptional cases, the DNA and fingerprint retention project maintains a library of circumstances that have been viewed as giving rise to exceptional cases. Those guidelines no longer apply in England and Wales, in light of the changes in the law which were adopted after S. and Marper (cited above). However, they are still followed in Northern Ireland.
Prior to the adoption of POFA and in the context of claims made by “unconvicted” persons challenging the retention of their biometric data, on 18 May 2011 the Supreme Court made a declaration that the ACPO guidelines prohibiting deletion of DNA and fingerprint data in the absence of exceptional circumstances were unlawful (see R (on the application of GC) v. The Commissioner of Police of the Metropolis and R (on the application of C v. The Commissioner of Police of the Metropolis ([2011] UKSC 21) and Goggins and Others v. the United Kingdom (striking out), nos. 30089/04 and 7 others, § 48, and § 74, 19 July 2011).
(b) Retention of photographs in England Wales, and Northern Ireland
(i) Domestic law prior to RMC and FJ v Commissioner of Police for the Metropolis and Secretary of State for the Home Department [2012] EWHC 1681 (Admin).
From 11 May 2001, PACE allowed the indefinite retention of photographs of any person of any age suspected of any recordable offence in England, Wales and Northern Ireland. This provision was unaffected by the amendments to execute S. and Marper (cited above), which did not concern retention of photographs.
In 2012, the High Court ruled, in the case of RMC and FJ v. Commissioner of Police for the Metropolis and Secretary of State for the Home Department [2012] EWHC 1681 (Admin) (‘RMC’), that the retention of images from “unconvicted” individuals under PACE and the Code of Practice on the Management of Police Information and accompanying guidance, was unlawful.
Lord Justice Richards gave the lead judgment and following an analysis of the relevant jurisprudence including the case law of this Court, concluded that the retention of the claimants’ photographs by the defendant constituted an interference with the right to respect for their private life under Article 8, and therefore required justification.
He was not convinced that their retention was in accordance with the domestic law but considered it would be deeply unsatisfactory to stop there, since that deficiency is one that can easily be remedied whereas the claimants’ concern was to prevent the continued retention of their photographs. He therefore went on to examine whether the retention was proportionate concluding:
“I consider that the Code and guidance suffer from deficiencies of much the same kind as led to the adverse finding under art.8(2) in S. [and Marper] v. United Kingdom and that those deficiencies are as significant in relation to the retention of photographs as in relation to the retention of fingerprints and DNA.”
(ii) Law and practice in England, Wales and Northern Ireland after RMC
After RMC, on 24 February 2017 the Government published a review of the current framework for the acquisition, retention and deletion of custody images of both convicted and “unconvicted” persons (the Custody Image Review).
According to the Custody Image Review, the police’s ability to make use of custody images is enhanced by their ability to upload them from forces’ local custody IT systems onto the Police National Database (‘PND’), which has been in place since 2010. All but nine forces upload custody images onto the PND. As of July 2016, there were over 19 million custody images on the PND, over 16 million of which had been enrolled in the facial recognition gallery making them searchable using facial recognition software. Many of these images are multiple images of the same individual. Recent advances in technology mean that it is now possible to search custody images on the PND.
Following publication of the Custody Image Review, police forces must analyse the custody images they hold and update their policy on retention of custody images in accordance with the guidelines set out in the Review.
The guidelines indicate that an individual convicted of a non-recordable offence should be able to apply for their photograph to be deleted six years after conviction and in such cases there should be a presumption in favour of deletion. The same applies for those who are under 18 and convicted of recordable offences. Persons over 18 convicted of recordable offences may also apply for deletion, but no presumption of deletion is applied.
The guidelines also specify time periods within which the retention of a custody photograph should be reviewed by the police of their own motion, and whether a presumption of deletion should be applied.
According to the Custody Image Review, this approach was taken because it is similar to the approach of some other European jurisdictions such as Belgium and the Netherlands.
C. The Committee of Ministers of the Council of Europe
In its role under Article 46 of the Convention to supervise the execution of judgments of the Court, the Committee of Ministers has examined the measures proposed and taken by the United Kingdom to execute S. and Marper on a number of occasions.
After examining the case at its 1150th (DH) meeting in September 2012, the Committee adopted a decision recalling that the Committee of Ministers had welcomed the authorities’ legislative proposals for England and Wales in response to the European Court’s judgment and noted with satisfaction that these proposals were adopted in POFA. The resulting amendments included the requirement to destroy a DNA sample within six months or as soon as a DNA profile had been obtained in all cases (whether the individual concerned had been convicted or not).
Concerning Northern Ireland, it noted with interest that legislative proposals which replicate POFA were under consideration in Northern Ireland and strongly encouraged the authorities to progress those proposals as quickly as possible.
According to the Action plan provided by the United Kingdom authorities to the Committee of Ministers on 14 January 2015, the authorities intended to update the Committee on the progress in executing the Court’s judgment, but there have been delays in bringing the relevant legislation into force in Northern Ireland for a number of reasons (see DH‑DD(2015)49).
Initially there were delays before the Northern Ireland Assembly in adopting the piece of legislation designed to allow implementation of POFA in Northern Ireland which meant that additional powers had to be given to implement the POFA provisions. These were set out in a further piece of legislation, the Northern Ireland (Miscellaneous Provisions) Act 2014. However, following adoption of that Act, it came to light that a drafting error in POFA had been copied into the legislation for Northern Ireland. This error had the effect that a very significant volume of biometric data would inadvertently fall to be destroyed under the new legislative regime upon commencement. Therefore, the 2014 Act was not brought into force and an amendment was adopted to address the problem in a further piece of legislation. The United Kingdom informed the Committee of Ministers that this latest legislation would receive Royal Assent by summer 2015. However, on 13 April 2016 the United Kingdom informed the Committee of Ministers that due to unforeseen circumstances the legislative provisions were not commenced on the date expected (see DH-DD(2016)489).
The United Kingdom wrote again to the Committee of Ministers on 5 September 2016 and said that the Secretary of State for Northern Ireland was working intensively with the Northern Ireland executive and that it was hoped to introduce a bill to Parliament shortly after autumn 2016. No further information appears to have been provided.
D. Relevant international law and practice
For a summary of relevant Council of Europe and European Union legal instruments and an overview of relevant national legislation in a selection of Council of Europe member states, reference is made to the Court’s judgment in S. and Marper v. the United Kingdom (cited above), §§ 41‑53, ECHR 2008.
Recommendation No. R (92) 1 of the Committee of Ministers on the use of analysis of deoxyribonucleic acid (DNA) within the framework of the criminal justice system (adopted on 10 February 1992) states, inter alia:
“...
8. Storage of samples and data
Samples or other body tissue taken from individuals for DNA analysis should not be kept after the rendering of the final decision in the case for which they were used, unless it is necessary for purposes directly linked to those for which they were collected.
Measures should be taken to ensure that the results of DNA analysis are deleted when it is no longer necessary to keep it for the purposes for which it was used. The results of DNA analysis and the information so derived may, however, be retained where the individual concerned has been convicted of serious offences against the life, integrity or security of persons. In such cases strict storage periods should be defined by domestic law.”
COMPLAINT
The applicant complains under Article 8 of the Convention that the indefinite retention of his DNA profile, fingerprints and photograph in accordance with the blanket policy of retention of personal data of any individual convicted of a recordable offence, amounted to a disproportionate interference with the right to respect for his private and family life and could not be justified.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicant’s right to respect for his private and family life, contrary to Article 8 of the Convention arising from the retention of his biometric data and taking into account the Court’s decision Peruzzo and Martens v. Germany, (7841/08 and 57900/12 [Dec.], 4 June 2013)?
2. As to the nature of the interference, does conclusion (iii) of Girvan LJ’s judgment take into account this Court’s findings at paragraphs 74-75 of S. and Marper?
3. In light of the conclusions in the Home Office Review of the Use and Retention of Custody Images (February 2017), is it still correct to conclude as the Supreme Court did, that the applicant’s custody photograph was held on a local database, limited to authorised police personnel and which does not have the capability to match photographs whether by way of facial recognition software or otherwise?
4. Was the interference in the applicant’s Article 8 rights “lawful”, in particular in light of the judgment of the Supreme Court in R (on the application of GC) v. The Commissioner of Police of the Metropolis and R (on the application of C) v. The Commissioner of Police of the Metropolis ([2011] UKSC 21)?
5. Does the indefinite retention of the applicant’s biometric data amount to a blanket and indiscriminate measure?
6. How should the Court approach the question of proportionality in this case in light of its conclusions in Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 106-112, ECHR 2013 (extracts)?
7. Is the indefinite retention of the applicant’s photograph proportionate, in particular in light of the guidelines developed in the Custody Image Review?
8. Are there adequate safeguards in place governing the retention of the applicant’s biometric data? In particular, does the domestic law ensure that such data are relevant and not excessive in relation to the purposes for which they are stored; and preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored? Does the law afford adequate guarantees that the data is efficiently protected from misuse and abuse?
9. Does the applicant have the possibility to request an independent review of the justification for the retention according to defined criteria review of the retention of his biometric data?
10. Is the indefinite retention of the applicant’s biometric data within the State’s margin of appreciation, in particular in light of the Supreme Court’s conclusion that the United Kingdom is one of the few states to permit indefinite retention of such data?
Full & Egal Universal Law Academy