Communicated on 17 December 2014
FOURTH SECTION
Application no. 49840/11
Kevin HUNTER
against the United Kingdom
lodged on 24 July 2011
STATEMENT OF FACTS
The applicant, Mr Kevin Hunter, is a British national, who was born in 1961 and lives in Nuneaton.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 9 April 1979 the applicant was convicted of assault occasioning actual bodily harm and of a breach of the peace. His biometric data was not taken on that occasion. The applicant’s offence is characterised under domestic legislation as a “recordable” offence and as a “qualifying” offence. A recordable offence is, generally speaking, a crime for which an individual could be sentenced to a term of imprisonment. It also includes however a number of non-imprisonable offences for example begging and illegal taxi touting. Qualifying offences refer to the more serious offences such as murder, rape and burglary: however they also include sex, indecency and firearms offences.
On 19 March 1981 the applicant was convicted of attempting to obtain property by deception. His biometric data was not taken on this occasion. Under domestic legislation, this offence is characterised as a qualifying offence.
However, on 22 April 2008 the applicant’s biometric data was taken following his arrest for possession of a shotgun with intent to cause fear of violence. Under domestic legislation, this offence is characterised as a qualifying offence. No further action was taken against him.
On 24 July 2011 the applicant lodged an application against the United Kingdom of Great Britain and Northern Ireland with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).
On 23 August 2013 the Registry requested that the applicant make a Subject Access Request to determine whether his biometric data continued to be held by the United Kingdom authorities.
In a letter dated 6 September 2013 Warwickshire police confirmed that as the applicant had been previously convicted of “recordable” offences, his data could be retained indefinitely.
In a subsequent letter dated 11 March 2014 Warwickshire police confirmed that the applicant’s data continued to be lawfully retained.
B. Relevant domestic law
The relevant domestic law and practice at the time the applicant’s data was taken is set out in the Court’ s judgment in S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, ECHR 2008. Following that decision, the United Kingdom Government drafted the Protection of Freedoms Act 2012. The purpose of Sections 1 to 25 of the Act was to create a new regime for the destruction and/or retention of biometric samples and data in order to implement this decision. All relevant sections of that Act came into force on 31 October 2013.
1. Retention of DNA profiles and fingerprints
Section 3 of the 2012 Act introduces a new section 63F into the Police And Criminal Evidence Act 1984 (“PACE”) which provides that where a person was arrested for a qualifying offence and their biometric data was taken in connection with the investigation of that offence, such may be retained indefinitely in certain circumstances:
“63F Retention of section 63D material: persons arrested for or charged with a qualifying offence.
(1)This section applies to section 63D material which
(a) relates to a person who is arrested for, or charged with, a qualifying offence but is not convicted of that offence, and
(b) was taken (or, in the case of a DNA profile, derived from a sample taken) in connection with the investigation of the offence
(2) If the person has previously been convicted of a recordable offence which is not an excluded offence, or is so convicted before the material is required to be destroyed by virtue of this section, the material may be retained indefinitely
[...]
(11)In this section -
“excluded offence”, in relation to a person, means a recordable offence—
(a) which—
(i) is not a qualifying offence,
(ii) is the only recordable offence of which the person has been convicted, and
(iii) was committed when the person was aged under 18, and
(b)for which the person was not given a relevant custodial sentence of 5 years or more.”
2. Retention of photographs
The policy regarding the retention of photographs is contained in the Management of Police Information Code of Practice and the Management of Police Information guidance and is currently under domestic review. In RMC & Anor, R (on the application of) v Commissioner of Police of the Metropolis & Ors [2012] EWHC 1681 (Admin) (22 June 2012), the High Court found that the policy existing at the time (namely, to apply the Management of Police Information Code of Practice and the Management of Police Information guidance) was unlawful and that its application amounted to an unjustified interference with the right to respect for private life in breach of Article 8. The High Court decided to allow the defendant, the Commissioner of Police of the Metropolis, a “reasonable further period” within which to revise the existing policy but stressed that such a period should be measured in months, not years.
On 14 November 2012 the High Court in R (V) v Commissioner of Police for the City of London [2012] EWHC 3430 (Admin), having been advised that the Association of Chief Police Officers (“ACPO”) “is in the process of devising a fresh policy” held that the “reasonable period” referred to in RMC was fast approaching but that it had not yet expired.
Under a Freedom of Information Request, no. 000245/13, ACPO stated that the College of Police and the Home Office were jointly reviewing information management arrangements within the police service and anticipated to report on the issue in April 2014. No such report has been identified.
COMPLAINT
The applicant complains under Article 8 of the Convention about the retention of his biometric data.
QUESTIONS TO THE PARTIES
1. In light of well-established case-law of the Court (S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, ECHR 2008), did the retention of the applicant’s biometric data, prior to the entering into force of the Protection of Freedoms Act 2012, breach Article 8 of the Convention?
2. Does the retention of the applicant’s biometric data under the provisions of the Protection of Freedoms Act 2012 breach Article 8 of the Convention?
3. What is the current domestic position regarding the destruction of custody photographs?
4. Does the historical and/or continued retention of the applicant’s photograph constitute a breach of Article 8 of the Convention?
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