European Court of Human Rights

 

 

Communicated on 10 December 2014

 

FOURTH SECTION

Application no. 21457/11
David William HALL against the United Kingdom
lodged on 30 March 2011

STATEMENT OF FACTS

The applicant, Mr David William Hall, is a British national, who was born in 1945 and lives in Wolverhampton.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 5 January 2011 the applicant was cautioned for using threatening, abusive, insulting words or behavior with intent to cause fear or provocation of violence. He was detained for twelve hours and his DNA, fingerprints and photograph were taken.

On 30 March 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 16 September 2013 the West Midlands police confirmed that the applicant’s data had not been deleted as he had been cautioned (which is treated as a conviction for the purposes of DNA and fingerprint retention) for a recordable offence. Therefore his data could be retained indefinitely. In the information provided to the applicant, his DNA status was recorded as “confirmed”.

B.  Relevant domestic law and practice

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.  Destruction of samples

Section 14 of the 2012 Act inserted a new a new section 63R into the Police And Criminal Evidence Act 1984 (“PACE”) which provides that:

“Destruction of samples

(1) This section applies to samples-

(a) taken from a person under any power conferred by this Part of this Act, or

(b) taken by the police, with the consent of the person from whom they were taken, in connection with the investigation of an offence by the police.

(2) Samples to which this section applies must be destroyed if it appears to the responsible chief officer of police that-

(a) the taking of the samples was unlawful, or

(b) the samples were taken from a person in connection with that person’s arrest and the arrest was unlawful or based on mistaken identity.

(3) Subject to this, the rule in subsection (4) or (as the case may be) (5) applies.

(4) A DNA sample to which this section applies must be destroyed-

(a) as soon as a DNA profile has been derived from the sample, or

(b) if sooner, before the end of the period of 6 months beginning with the date on which the sample was taken.”

(5) Any other sample to which this section applies must be destroyed before the end of the period of 6 months beginning with the date on which it was taken.”

2.  Retention of DNA profiles and fingerprints

Section 5 of the 2012 Act introduces a new section 63I into PACE which provides that where a person is convicted of a recordable offence and the biometric data, namely fingerprints and a DNA profile, was taken in connection with the investigation of that offence, such may be retained indefinitely.

3.  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 and photograph.




 

 

QUESTIONs TO THE PARTIES

 

 

1.  Has the applicant’s DNA sample been destroyed? If so, on which date did the destruction occur? If not, does its continued retention breach Article 8 of the Convention?

 

2.  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?

 

3.  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?

 

4.  What is the current domestic position regarding the destruction of custody photographs?

 

5.  Does the historical and/or continued retention of the applicant’s photograph constitute a breach of Article 8 of the Convention?