England and Wales High Court (Administrative Court) Decisions

S, R (on the application of) v Chief Constable of South Yorkshire & Anor [2002] EWHC 478 (Admin) (22nd March, 2002)

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		22 March 2002

Mr Justice Leveson :

1. In its original form, sections 61-65 of the Police and Criminal Evidence Act 1984 (“PACE”) both extended and rationalised the law relating to the acquisition and retention of fingerprints, photographs, intimate and other samples. By the Criminal Justice and Public Order Act 1994, it was amended to deal, in particular, with the development of DNA profiling; other changes were introduced by other statutory provisions. Even taking account of those amendments, however, one basic principle (subject to certain exceptions) remained as described in Section 64 of PACE namely that fingerprints or samples obtained from a person in connection with the investigation of an offence were to be destroyed as soon as practical after the conclusion of proceedings in which the suspect was cleared.
2. Section 82 of the Criminal Justice and Police Act 2001 (in force on 11 May 2001) retrospectively amends that provision and, on its face, permits the retention of fingerprints and DNA samples notwithstanding that the person from whom they were obtained was, in fact, cleared of the offence the investigation of which led to the fingerprints or samples being obtained in the first place. With the leave of Munby J and Keith J respectively, “S” and Michael Raymond Marper challenge the compatibility of that amendment with the provisions of Articles 8 and 14 of the European Convention on Human Rights. In the alternative, they also complain that the relevant Chief Constable has fettered his discretion to consider whether, in their cases, it is either necessary or appropriate to retain fingerprints and other bodily samples.
3. In order to deal fully with the arguments advanced in these applications, it is important to set out the background to the legislative change in some detail. I will then review the facts which form the basis of the two specific applications; they are unremarkable in themselves and not likely to be dissimilar from all those cases in which fingerprints or other samples are now being retained whereas previously they would have been destroyed. I will then turn to the specific arguments advanced both in support of the applications (by Mr Richard Gordon QC and Mr Stephen Cragg for the Claimants) and in defence of the amendment (by Mr David Bean QC and Mr David Jones for the Chief Constable concerned in both applications and Mr Rabinder Singh and Mr James Strachan for the Secretary of State for the Home Department). These arguments were advanced under four broad headings, namely:

(1) Whether the retention of fingerprints and DNA samples permitted by section 64 of PACE (as amended) constitutes an interference with private life and, if so, whether that interference is saved by Article 8(2) of the Convention.

(2) Whether the retention of fingerprints and DNA samples permitted by section 64 of PACE (as amended) offends Article 14 of the Convention.

(3) Assuming that the provisions are compatible with the Convention, whether the Chief Constable has unlawfully fettered his discretion in relation to the retention of fingerprints and DNA samples.

(4) In the light of the foregoing analysis, the extent, if at all, to which these claimants are entitled to any relief.

The Legislative Background

4. Section 61(1) of PACE provides that no person’s fingerprints may be taken without consent except as provided by the comprehensive system of authorisation there set out; sections 62 and 63 provide a similar system of authorisation in relation to intimate and other samples. Section 64 deals with destruction of fingerprints and samples obtained under the preceding provisions. Prior to its amendment by the 2001 Act, it provided:-

“(1) If –

(a) fingerprints or samples are taken from a person in connection with the investigation of an offence; and

(b) he is cleared of that offence,

they must, except as provided in subsection (3A) below, be destroyed as soon as it is practicable after the conclusion of the proceedings.

(2) If –

(a) fingerprints or samples are taken from a person in connection with such an investigation; and

(b) it is decided that he shall not be prosecuted for the offence and he has not admitted it and has been dealt with by way of being cautioned by a constable,

they must, except as provided in subsection (3A) below be destroyed as soon as is practicable after that decision is taken.

(3) If –

(a) fingerprints or samples are taken from a person in connection with the investigation of offence; and

(b) that person is not suspected of having committed the offence, they must, except as provided in subsection (3A) below, be destroyed as soon as they have fulfilled the purpose for which they were taken.

(3A) Samples which are required to be destroyed under subsection (1), (2) or (3) above need not be destroyed if they were taken for the purpose of the same investigation of an offence of which a person from whom one was taken has been convicted, but the information derived from the sample of any person entitled (apart from this subsection) to its destruction under subsection (1), (2) or (3) above shall not be used

(a) in evidence against the person so entitled; or

(b) for the purposes of any investigation of an offence.”

The section goes on to provide that where samples are required to be destroyed, information derived from such samples shall not be used in evidence against the person entitled to their destruction or for the purposes of any investigation of an offence; that proceedings which are discontinued are to be treated as concluded for the purposes of this section; and that if fingerprints are destroyed, copies must also be destroyed and any computer data relating to them made impossible to access: see subsections (3B)-(5). The provision was designed to provide a measure of protection for those suspected of crime but subsequently cleared from the general prospect that data, having been retained, might be used against them in different proceedings.

5. Since the enactment of these provisions, it is worth recording the dramatic developments in the technology associated both with fingerprinting and the use of bodily samples (in particular, DNA). These have the effect of rendering both far more effective as tools in the detection and prosecution of offenders. I take the description of present developments from the Home Office document “Proposals for Revising Legislative Measures on Fingerprints, Footprints and DNA Samples” which proposed the relevant (and other) amendments to the legislation. Thus, as to fingerprints, it is recorded (at paragraph 7):-

“[The National Automated Fingerprint Identification Systems (NAFIS)] will provide fingerprint matching facilities for all 43 police forces in England and Wales and increase the efficiency of workflow within police forces and the criminal records system. Police forces across the country will be able to capture ten print impressions as well as marks from scenes of crime and submit them electronically to a national database. Fingerprint impressions will be compared automatically against the national data base by NAFIS using a sophisticated Automatic Fingerprint Recognition (AFR) function and possible matches returned for review by fingerprint experts to prove identity or in order to determine a link between crimes. ”

New technologies include live scan (the capturing of fingerprint impressions electronically which can then be downloaded in digital form for processing) and live-id which can be undertaken either at a police station or at a remote site or on patrol thus confirming the identity of a suspect or arrestee immediately.

6. The same is so in relation to DNA specimens which can be recovered from blood or other tissues (such as hair or skin) and body fluids (such as saliva or semen). Save in the case of identical twins, the DNA of everyone is different and quoting from the same document, it is reported (at paragraph 44):-

“Following forensic examination, DNA profiles can be obtained from samples left at the scene of the crime and also from samples obtained from persons associated with the crime (e.g. the victim and suspect). If a suspect’s profile is different from that of the crime sample, then that suspect cannot be source of the crime sample. If the suspect’s profile is the same as that of the crime sample, then the crime stain was left either by the suspect or another unknown person who, by chance, has the same profile as the suspect. To assess the evidential value of a match it is usual practice to estimate the probability that an unknown person unrelated to the suspect, would share the same profile. For a common STR profile [i.e. short tandem repeats which is the chosen DNA technique] this profile will be of the order of one in 50 million but this figure may vary considerably and will be given for each specific case when reported in the case statement ”

It is important to appreciate that the DNA database is not a list of suspects; rather, it will show only a ‘hit’ of the DNA profile of an individual which matches that from DNA recovered at a crime scene. Given that DNA can be detected from very small samples (such as might be found on the saliva on a cigarette end) the power of the technique both to eliminate those who might have been suspected or incriminate others is enormous.

7. In relation to DNA the effect of this forensic technique can be illustrated by reference to two prosecutions in which the alleged offender was identified from DNA left at the crime scene (in one case a rape at the victim’s home, in the other a murder); prior to the evidence linking the DNA from the scene with those later arrested, there had been insufficient evidence to put either on trial. In both, a match of DNA was made against samples which had been lawfully taken but which should, prior to the match being made, have been destroyed. In each, the outcome of the trial turned on the admissibility of the samples. In one (Regina v. Weir 99/4829/W2), a conviction for murder was quashed on the grounds that it should not have been admitted; in the other, where the judge had refused to admit the evidence (Attorney General’s Reference (No.3 of 1999) [2001] 2 AC 91), the prosecution was abandoned. In the latter case, however, the House of Lords held that the legislation did not amount to a mandatory exclusion of evidence obtained as a result of a failure to comply with the prohibition on the use of unlawfully retained samples.
8. For the purposes of these cases, whether unlawfully retained samples should have been admitted is not to the point. In the light of the challenge to the compatibility with the European Convention on Human Rights of the change in the law, however, it is worth setting out the observations of Lord Steyn in relation to competing interests in Attorney General’s Reference (No.3 of 1999). He said (at page 118):

“It must be borne in mind that respect for the privacy of defendants is not the only value at stake. The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public.”

Dealing with the argument that use of a sample which should have been destroyed itself constituted a breach of Article 8, he went on (at page 119):

“Counsel submitted that, because a sample must be destroyed after a committal, it cannot ever be “in accordance with the law” to admit in evidence the results of a prohibited investigation. The question whether it meets this requirement is the very issue of interpretation which the House has to decide. If the construction I have adopted is correct “the interference” is “in accordance with law”, the critical point being that admissibility is governed by judicial discretion under Section 78. And “the interference” so qualified is plainly necessary in a democratic society to ensure the investigation and prosecution of serious crime. There is plainly no breach of Article 8.”

It is plain from a detailed consideration of Lord Steyn’s speech that the language of the statute was unsatisfactory and it is not surprising that the opportunity was taken to introduce appropriate amendments.

9. Bearing in mind those matters which fall to be considered within Article 8 of the Convention, it is worth setting out in some detail what the Home Secretary said when introducing the proposed amendment to the legislation in the House of Commons on 29 January 2001. He put it in this way:-

“DNA profiling is a very powerful tool – an objective form of evidence. Its value lies as much, if not more, in its ability to exclude the innocent as in its ability to convict the guilty. When the police investigate a case, if they do not proceed with a prosecution or the suspect is acquitted, they routinely retain all the records of the investigation, including the notes of interviews with suspects and other interviews. That has always been the case. The police would not dream of throwing away their memory on the off chance that the offender may or may not commit a further offence. Yet the law requires that the most objective and powerful forms of evidence – fingerprints and DNA – have to be destroyed if a conviction does not follow from the taking of the sample in question.

This has already led to serious miscarriages of justice. In two recent cases, R v. ‘B’ and R v. Weir, compelling DNA evidence to link one suspect to a rape and the other to a murder could not be used, and neither suspect could be convicted because it turned out that at the time when the matches were made, the defence had either been acquitted of another crime, or a decision had been made not to proceed with the offences for which the DNA profiles were originally taken. Under the existing provisions, the profiles should have been destroyed.

Those who believe that we should leave the law as it is, following the decision of the law lords in the case of R v. ‘B’, should, I suggest look at the narrative of Lord Steyn in that case. Their Lordships sought to bring the law as near as possible to common sense without actually murdering the text of the statute, but they could not go the whole way. Lord Steyn pointed out that there were added injustices in the R v.‘B’ case. First it was unjust to the victim and the community that compelling evidence against this man could not be used to convict him and everyone knew it existed. Secondly, the man was able to escape that conviction altogether only because of another trick – another offence – that he played on the police. It turned out subsequently that, at the time of his arrest on this charge, he had already been convicted of affray. Had the DNA technology been available and in use when he was arrested on that affray charge and subsequently convicted, it would have been perfectly lawful to take a DNA sample from him and for that to remain on the record forever. However the sample was not taken.

.....I accept that the use of DNA and fingerprinting must be carefully controlled, precisely because they are powerful tools. However anyone who has visited a forensic service science laboratory, as I have, and seen the huge care that is taken, will know it is virtually impossible for any scientist to know whether a sample is to be used to identify a suspect or a victim, and will appreciate the substantial safeguards that are in place. Furthermore, an important role is played by defence counsel in challenging the integrity of the lifting of the samples at the scene of crimes by definition, a less controlled environment – and such issues sometimes have to be challenged by the courts.

Taking all those arguments together, I believe that the current state of the law is wholly unsatisfactory. We cannot continue to have such cases such as that in which a man commits an act of violence – an affray – then a burglary and then – as compelling evidence suggests – a rape. Such people cannot be allowed to continue to play games with the technicalities of the law while rape victims go in fear of further crimes being committed by the person against whom compelling evidence exists to show that they committed a rape. The other case in question was a murder case – the most serious crime in the criminal calendar. ”

I have deliberately set out part of the Home Secretary’s speech at length in order to place in context the competing considerations which fall to be addressed when determining whether the provisions later passed into law satisfy the requirements of the Convention.

10. I mention one further aspect of the legislative process. During the course of its passage through Parliament, the provisions of the Bill which were eventually to become Section 82 of the Criminal Justice and Police Act 2001 were the subject of scrutiny by the Joint Committee on Human Rights which is a body consisting of six members of the House of Lords and six members of the House of Commons. They considered both the amendment which would permit the retention of fingerprints and samples taken from persons subsequently cleared and, just as important, the retrospective nature of that legislation permitting retention of samples already obtained. In its first report, the Joint Committee concluded (at paragraph 92):-

“.... Having given detailed attention to the possible argument that the retrospective effect of clauses 83 and 84 of the Bill might lead to the loss of an effective remedy for a past violation of Article 8, we believe that such argument would be unlikely to succeed, because:

(a) the case law of the European Court of Human Rights on Article 13 and the scope for retrospective legislation is not settled, but it is likely that states will be permitted a degree of flexibility in matters such as this (see The National and Provincial Building Society, the Leeds Permanent Building Society and the Yorkshire Building Society v. the United Kingdom European Court of Human Rights Judgment 23 October 1997);

(b) Clauses 83 and 84 would not extend powers to take fingerprints and samples, but only to retain those which had been lawfully taken;

(c) the future operation of the new powers seems to us to be fully compatible with Convention rights;

(d) the retained material is likely to provide valuable evidence mainly in relation to very serious offences against the person; and

(e) the House of Lords has held that evidence based on material unlawfully retained in the past need not be excluded from evidence in such cases.

We regard those considerations as decisive.”

11. In those circumstances, the Bill was passed so that the relevant part of Section 64 of PACE, as amended by Section 82 of the Criminal Justice and Police Act 2001 provides so far as material, is as follows:-

“(1A) Where –

(a) fingerprints of samples are taken from a person in connection with the investigation of an offence, and

(b) subsection (3) below does not require them to be destroyed,

the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution.

(3) If –

(a) fingerprints or samples are taken from a person in connection with the investigation of an offence; and

(b) that person is not suspected of having committed the offence,

they must, except as provided in the following provisions of this section, be destroyed as soon as they have fulfilled the purpose for which they were taken.

(3AA) Samples and fingerprints are not required to be destroyed under subsection (3) above if-

(a) they were taken for the purposes of the investigation of an offence of which a person has been convicted; and

(b) a sample or, as the case may be, fingerprint was also taken from the convicted person for the purposes of that investigation.”

With that lengthy account of the historical background to this legislation, I turn to the facts of the two applications.

The Case of “S”

12. “S” is a 12 year old boy. He has no previous convictions, cautions or warnings. On 27 January 2001, following his arrest and charge with the offence of attempted robbery, his fingerprints and DNA samples were taken. On 14 June 2001, he was acquitted. On 18 July 2001, the Principal Fingerprint Officer of South Yorkshire Police wrote what appears to be a general letter to the solicitors acting on behalf of “S” in terms:-

“I wish to inform you that the South Yorkshire Police will retain fingerprints and samples that were previously required to be destroyed under Section 64 of [PACE].

The Criminal Justice and Police Act 2001 now gives the police the right to retain fingerprints and samples to aid crime and investigation and is retrospective.

All fingerprints and samples that were due for destruction will be retained.”

It was made clear that the current procedure for the destruction of photographs and negatives had not been altered.

13. Presumably having received that letter, albeit making no reference to it, on 24 July 2001, the solicitors wrote specifically in connection with the case of “S” and requested that his fingerprints and photographs be destroyed in his presence. Two days later, a letter before action was written to the Chief Constable of South Yorkshire Police contending that the retention of fingerprints constituted a breach of Article 8 of the European Convention on Human Rights and threatening that unless the fingerprints were destroyed, proceedings would be commenced for judicial review seeking a mandatory order for destruction and a declaration of incompatibility.
14. The solicitors wrote a further letter criticising the adoption of a blanket policy on the issue and argued that, even if the legislation was compatible with Article 8, the Chief Constable should consider the exercise of his discretion in each case deciding whether retention could be justified by Article 8 (2); although not specifically mentioned, doubtless at the forefront of the solicitor’s mind was the age of “S”. In connection with that request, evidence filed by the Chief Constable makes it clear that the policy was designed for and does not extend beyond the prevention and detection of crime, the investigation of an offence or the conduct of a prosecution. By way of example of its significance and relevance even to the young, he cites the case of a juvenile, “I”, whose fingerprints and DNA were taken after his arrest for assault. No prosecution followed and his fingerprints and DNA should have been destroyed; in error they were not. Later both palm print and DNA samples from a rape implicated “I”. Following the decision in Attorney General’s Reference (No 3 of 1999), “I” pleaded guilty to the offence of rape and was sentenced, after appeal, to 6 years’ detention. The Chief Constable makes the point that no reason has been advanced for treating “S” differently to others in a similar position.

Michael Marper

15. On 13 March 2001, Michael Marper (who was then 38 years of age and is of good character) was arrested and charged with harassment of his partner; his fingerprints and relevant DNA samples were taken that day. He appeared before the Court on 23 March 2001 when the case was adjourned to a pre-trial review on 3 May by which time his partner had decided not to press the charge having become reconciled with him. On 11 June, having no doubt accepted that it was no longer in the public interest to force this matter to trial, the Crown Prosecution Service wrote to his solicitors enclosing a notice of discontinuance.
16. On 29 June 2001, Mr Marper’s solicitors wrote requesting the destruction of his fingerprints and DNA samples. Having received dated 18 July 2001 the general letter to which I have already referred, the solicitors wrote again requesting the Chief Constable to exercise his discretion not to retain either fingerprints or samples: the response was to the effect that the position was the same as that set out in the case of “S” i.e. that the Chief Constable had a policy to retain fingerprints and samples in all cases. In these proceedings, the Chief Constable provided an example of a case which he did consider exceptional. In March 2001 “W” had agreed to be bound over provided, specifically, that her fingerprints, photograph and DNA sample would be destroyed: having regard to the state of the law and policy at that time (which was to destroy this material in those circumstances), that assurance was given. This had not been done by the time the law was changed. When the request was repeated, because of the specific assurance in advance of the bind over, the agreement was honoured and the samples destroyed.

The Challenge

17. The Claimants submit that Section 64 of PACE as amended by Section 82 of the Criminal Justice and Police Act 2001 cannot be interpreted in a way that is compatible with their Convention rights. Thus, bearing in mind that, pursuant to Section 6 of the Human Rights Act 1998, it is unlawful for a public body (including the Chief Constable) to act in a way that is incompatible with such rights, the Court ought properly to make a declaration of incompatibility. The provisions of the European Convention on Human Rights which it is suggested are engaged are Articles 8 and 14. Article 8 provides:-

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There should be no interference by public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 14 provides: -

“The enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion national or social origin, association with a national minority, birth or other status.”

This broad submission is analysed under several discrete headings.

Does the principle of retention of fingerprints and DNA samples offend Article 8?

18. Mr Gordon on behalf of the Claimants submits that the retention of fingerprints and DNA samples constitute an interference with a person’s “private life”. He points first to the fact that the Home Secretary has accepted “that a fingerprint and DNA sample uniquely identifies an individual and may fall into the category of private life” and as I have noted above, the Parliamentary Joint Committee similarly concluded. For my part, I have no difficulty in concluding that the taking of fingerprints and DNA samples may constitute an interference with personal integrity capable of engaging Article 8 (1) of the Convention (the justifiability of which is not challenged in either of these cases): I am less clear that the retention of such samples having lawfully been taken has a similar effect. In McVeigh, O’Neill and Evans –v- United Kingdom (1981) 25 DR 15, the European Commission of Human Rights expressly distinguished between the taking of fingerprints, photographs and records and their retention and, as to the latter, observed (at paragraph 227):-

“.......that it is open to question whether the retention of fingerprints, photographs and records of such information amounts to an interference with the Applicant’s right to respect for private life under Article 8 (1) of the Conventions.”

19. Mr Gordon relies upon Salonen –v- Finland (Application No 27868/95) in which the Commission recognised that the choice of forenames did fall within the sphere of private life since they constituted a means of identifying persons “within their families and the community” and so affected the individuals right to determine his or her identity. He then contended that far more than any forename or surname, fingerprints and DNA samples are uniquely connected to the individual and, indeed, represent a physical aspect of their persona. Certainly, both are far more discriminating in their identification of specific individuals but, in my judgment, the analogy is not made out. Names can be changed and affect the way in which a person is perceived by others in circumstances in which there may be a very real impact on private life: the alteration of a name by those who have changed gender is a case in point. Fingerprints and DNA samples are not susceptible to that perception or potential change of perception. A person can only be identified by fingerprint or DNA sample either by an expert or with the use of sophisticated equipment or both; in both cases, it is essential to have some sample with which to compare the retained data. Further, in the context of the storage of this type of information within records retained by the police, the material stored says nothing about the physical makeup, characteristics or life of the person to whom they belong.
20. I am reinforced in that view by consideration of the decision in Kinnunnen v. Finland (Application 24950/94) in which the Commission was required to consider a complaint of breach of Article 8 in respect of the retention of personal details (including photographs and fingerprints) taken in connection with an investigation into a criminal charge of fraud. The Applicant was acquitted of the charge but the police retained his records for some years after the acquittal. The Commission observed:-

“As regards Article 8, the Commission must first examine whether the retention at issue amounted to an interference of the Applicant’s right to respect for his private life within the meaning of that provision. It notes that the material retained by the .......police department consisted of photographs and fingerprints taken in connection with his arrest in 1985 and therefore did not constitute an intrusion in his privacy ....... Moreover, there is no indication that the department’s file or register of personal details contained any surveillance or similar information in respect of the Applicant or any subjective appreciations which he might have wished to refute.......The Commission therefore considers that the material and information retained by the police was not of such a character that it could have adversely affected the Applicant anymore significantly than the publicly known fact that he had been charged with, but acquitted, of certain charges. In these circumstances, the Commission finds that the retention complained of cannot be considered to amount to an interference with his right to respect for his private life within the meaning of Article 8.”

The fact that the record was retained only for some five years is not to the point.

21. Because of the provisions of Article 8(2) neither Mr Bean nor Mr Rabinder Singh contend that it is necessary for this court to go so far as to resolve this issue; not the least reason for this may be that a more recent amendment to the same provision permits the retention of photographs (see section 92 of the Anti-terrorism, Crime and Security Act 2001 in force since 10 December 2001) where different considerations might obtain. It is thus sufficient for me to say that I am far from convinced that the retention of fingerprints and DNA samples engages Article 8 in any form.
22. Assuming that Article 8(1) is engaged, I must now analyse whether such interference is justified as being “in accordance with the law” and “necessary in a democratic society for the prevention of disorder or crime and for the protection of the rights of others”. Mr Gordon does not challenge that it is aimed at the prevention of crime and disorder but submits that it is neither in accordance with the law nor necessary in a democratic society. I consider these two arguments in turn but before doing so make some observations about the nature of the interference.
23. I repeat that the data being retained is not susceptible to meaningful publication; the real concern can only be that it is available to match against material taken from a crime scene, whereas for those whose fingerprints and samples are not available, there is no readily available sample against which to check it. In McVeigh, the Commission observed:

“… the Commission recognises that this involves the retention of records in respect of some persons against whom no suspicion exists following their release. It approaches the present case on the basis that that is the case in respect of the applicants …. However, taking into account the nature of the records at issue, it must balance what, in its view, is at most a relatively slight interference, with the applicants’ right to respect for their private life against the pressing necessity to combat terrorist activity.”

Mr Gordon argued that the words “relatively slight” had to be contrasted with the pressing need to combat terrorist activity. In my judgement, the interference is relatively slight against any objective standard and, given the very real public concern which sexual and violent crime (which are most likely to give rise to bodily samples at the crime scene) generates, I have no doubt that there is a pressing need to combat such offending as well.

24. Tracking Article 8(2), Mr Gordon did not challenge that the fingerprints and other samples addressed the legitimate aim of the prevention of disorder and crime: this is more than amply demonstrated by the material provided to Parliament by the Home Secretary and the observations of Lord Steyn in Attorney General’s Reference (No 3 of 1999) set out above. He argues that this interference was not in accordance with the law and not necessary in a democratic society.
25. The submission that the interference is not in accordance with the law proceeds on the basis that all law must be prescribed with sufficient clarity to enable the individuals who may be affected by the restriction to understand the circumstances in which that restriction will be imposed and thus foresee with a reasonable degree of accuracy the consequences of their actions. Mr Gordon suggests that it may be difficult to predict when fingerprints and DNA samples will be retained because Parliament has not prescribed the criteria which should be brought into play when the decision is made. He relies on the observations in Silver v. United Kingdom (1983) 5 EHRR 88 to the effect that “a law which confers a discretion must indicate the scope of that discretion.” In answer, Mr Rabinder Singh seeks to take that dictum in context. The judgment continues:

“… the Court has already recognised the impossibility of attaining absolute certainty in the framing of laws and the risk that the search for certainty may entail excessive rigidity [see Sunday Times v UK (1979) 2 EHRR 245]. These observations are of particular weight in the ‘circumstances’ of the present case, involving as it does, in the special context of imprisonment, the screening of approximately 10 million items of correspondence in a year …. It would scarcely be possible to formulate a law to cover every eventuality. Indeed, the applicants themselves did not deny that some discretion should be left to the authorities.

In view of these considerations, the Court points out once more that ‘many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice’ (ibid)….”

26. It is also worthwhile citing a further part of McVeigh (supra). After the observation that it was open to question whether retention of fingerprints, photographs and records amounts to an interference with the right to respect for private life, the Commission goes on (at paragraph 228):

“As to Article 8(2), the first question which arises is whether the retention of such records is ‘in accordance with the law’. The applicants submit that it is not because the 1976 Act and Order merely authorise the taking of fingerprints, photographs etc and there is no legal provision authorising their subsequent retention or regulating their subsequent use. They do not, however, dispute that, having lawfully obtained the relevant material, the authorities are entitled under domestic law to retain it. In the Commission’s opinion the 1976 Act and Order which lay down the specific circumstances in which fingerprints, photographs and other information may be obtained provide a sufficient legal basis for the subsequent retention of such material which is therefore ‘in accordance with the law’ for the purpose of Article 8(2).”

27. For my part, I see nothing uncertain or lacking in clarity about the provisions of section 64 (as amended); anyone suspected of having committed a criminal offence knows (or may learn if he or she is sufficiently interested to enquire) that the Chief Constable will have the power to retain fingerprints and other samples irrespective of the outcome of any proceedings subject to their being any specific reason for asking him to destroy them in any particular case. Further, that exercise of his discretion in any particular case is itself subject to normal principles of public law challengeable by judicial review. Whether there should be limiting criteria is an argument relevant to the issue of whether the provision is necessary in a democratic society: to that question I now turn.
28. Mr Gordon submits that whether the power is necessary in a democratic society for the prevention of disorder or crime turns on three questions, namely whether there is a pressing need for the restriction, whether the restriction corresponds to the pressing social need and, most important, whether the restriction is ‘proportionate’ to the pressing social need. As to the first, the evidence from the Secretary of State is clear (and not, in reality, challenged by Mr Gordon). He similarly accepts that to the extent that retained fingerprint and other samples “shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution” (see section 64(1A) of the Act as amended), then the restriction does correspond to that pressing social need. The real issue is thus proportionality.
29. This approach is echoed in the authorities. In de Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 the Privy Council, in a judgment delivered by Lord Clyde (at page 80G) adopted the three stage test enunciated by Gubbay CJ in Nyambirai v. National Social Securiity Authority [1996] 1 LRC 64 (at page 75) that, in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive, the court should ask itself:

“whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”

This test was also accepted by the House of Lords in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532, at paragraphs 27-28 (per Lord Steyn). Finally, I ought to add that, in connection with Article 8(2), it was put by Dyson LJ in R v. Secretary of State for the Home Department ex parte Samaroo [2001] EWCA Civ 1139 [2001] UKHRR 1150 at paragraph 20 on the basis that whether there was a breach depended on whether the measures were excessive and had a disproportionate effect.

30. The Claimants’ case can be put quite simply. A fair balance has not been struck between protecting their right to respect for their private life and the interests of the community in preventing, investigating and prosecuting criminal offences. Thus, it has not been demonstrated that the retention of fingerprints and other samples is necessary in cases involving individuals with no previous convictions who have been acquitted and, in any event, there is no evidence that it was necessary to retain this data on these Claimants either in relation to the facts surrounding their involvement with the criminal justice system (i.e. acquittal of attempted robbery in the case of “S” and arrest for harrassment which was not pursued to a court hearing in relation to Mr Marper). Mr Gordon submits that they are presumed, and considered, innocent of the charge and yet this retention creates the suggestion of suspicion; there is an implication that they are not wholly innocent despite their acquittal. Thus, he says that there is a clear difference between retaining fingerprints and other samples where the police have reasonable grounds for investigating a particular individual for a specific offence and retaining such personal information for the general purpose that they may potentially prove useful in future investigations.
31. I do not agree with this analysis of the position. As Mr Rabinder Singh put it, in relation to the need to retain this information, Mr Gordon is focussing on the wrong target. It is not the offence for which any person was in the past investigated that is relevant; rather it is the possibility (however remote) of some future offence. It is one thing to say that there is no power to compel members of the public to provide fingerprints or bodily samples merely because the police would find them useful; it is very different to say that once the police have lawfully obtained such data because a particular person has come within the spotlight of the criminal justice system, they should be required to give it up. In the course of investigating any particular crime or, perhaps, targeting an individual for investigation, the police gather a large amount of evidence and intelligence about any number of people; nobody suggests that when that particular case has been concluded, to such extent as that evidence or intelligence impinges on others, not the subject of investigation or target, it should be destroyed. It enters the data banks of the police and is available for them to use in other investigations should it be relevant for them to do so.
32. Furthermore, in the context of the cases which led to and have followed this issue emerging, it is illuminating to consider the circumstances in which fingerprints and samples came to be taken. In R v. Weir (who was acquitted of murder when the Court of Appeal ruled inadmissible his wrongly retained sample), those samples came to be taken on his arrest for drugs related offences which were discontinued in the Magistrates’ Court. In Attorney General’s Reference (No 3 of 1999) the offender had been arrested for burglary; his sample implicated him in a serious rape. Last, but not least, in the case of “I”, that juvenile was arrested for assault; his DNA sample also proved his involvement in rape. In my judgment, the protection comes within the provisions of law that circumscribe the circumstances in which fingerprints and other bodily samples can be taken in the first place.
33. Finally, on the facts, it is also important to have regard to the nature of the social need and extent of the interference. As to the former, the increase in serious crime is a pressing problem for society as a whole. As Lord Steyn observed, it is in the interests of everyone that it should be investigated and prosecuted effectively. The value of fingerprints and DNA samples is that, subject to the circumstances in which they are obtained from the crime scene and certain scientific limitations, they provide powerful evidence; thus, when it became clear that the samples obtained from “I” could be used, he admitted his guilt. As to the extent of interference, unless there is something from the crime scene which matches positively with the sample at a level acceptable to the relevant experts, the fact that his fingerprints and samples are in the database will simply not impact on the person from whom they were taken in any way. Thus, the availability of the sample will serve to assist in the elimination of most and will only focus on someone who is, in fact, implicated.
34. In the circumstances, I have come to the clear conclusion that this legislation is proportionate. That view is not altered by a consideration of the approach of the Commission. McVeigh (supra) points in that direction. I accept, of course, that that case was concerned with the pressing necessity of combating terrorism, but there is nothing in the case to suggest that the detection of those involved in the commission of other serious crime should be viewed in such a different way as to render the retention of data in these circumstances disproportionate. In the same way that “S” and Mr Marper were not guilty of crime so was Mr McVeigh; even if crimes such as murder, rape and robbery are not of such intrinsic gravity as terrorism, their frequency undeniably constitutes a pressing social problem.
35. Mr Gordon relied on Friedl v. Austria (1996) 21 EHRR 83 which concerned the retention of photographs and information about an individual who had been present at a public demonstration. The Commission observed (at paragraph 56):

“As regards the retention of the information thus obtained in the administrative file on the manifestation, the Commission recalls that the keeping of records relating to criminal cases of the past can be regarded as necessary in a modern democratic society for the prevention of crime (cf No.1307/61, Dec. 4.10.62, Collection 9, p.53), and that even if no criminal proceedings are subsequently brought and there is no reasonable suspicion against the individual concerned in relation to any specific offence, special considerations, such as combating organised terrorism, can justify the retention of the material concerned (McVeigh … paras. 229-231). In the present case, the competent authorities established the applicant’s and other participant’s identity for the purposes of an ensuing prosecution for road traffic offences. This prosecution was not pursued in view of the trivial nature of the offences. However, the information obtained was only kept in a general administrative file recording the events in question. Moreover this information was not entered into a data processing system. For these reasons, taking into account the margin of appreciation afforded to the Contracting Parties in such matters, the Commission finds that the relatively slight interference with the applicant’s right to respect for his private life can reasonably be considered as necessary in a democratic society for the prevention of disorder and crime.”

36. Mr Gordon points to the reliance placed on the fact of destruction (albeit after 13 years) and on the fact that this material was not placed on a data processing system. In my view, the principles are clear and the features relied upon represent the detail of that particular case – a demonstration leading to a photograph (which is likely to be of very limited value many years later). This case does not, of course, concern photographs: in this country, the protection against misuse of photographs is likely to be found in section 78 of PACE. As to the second feature, I accept Mr Bean’s submission that it is difficult to see the significance of the material not being put on a data retrieval system: it was, presumably, available to anyone who wanted to look at it. Given that fingerprints and DNA are not of any use without a crime scene sample, the interference in this case could be said to be less. Suffice to say that there is nothing in Friedl which affects my view.
37. Taking all these issues together, I reject the complaint that section 64 (as amended) is incompatible with Article 8 of the Convention; in my judgment, it is not.

Does the retention of fingerprints and DNA samples offend Article 14?

38. The approach to complaints under Article 14 is to be found in the proposition that, in Convention terms, there is discrimination only if two persons who are in similar situations are treated differently. The relevant principle is to be found in Abdulaziz, Cabales and Balkandali v. U.K. (1985) 7 EHRR 471, as follows (at paragraph) 72:

“For the purposes of Article 14, a difference in treatment is discriminatory if it ‘has no objective and reasonable justification’, that is, if it does not pursue a ‘legitimate aim’ or if there is not ‘a reasonable relationship of proportionality between the means employed and the aim sought to be realised.’ The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law, but it is for the Court to give a final ruling in this respect.”

39. Mr Gordon argues that the decision to retain fingerprints and other samples is essentially based on irrelevant and insufficient considerations, namely, the fact of prosecution and acquittal. He goes on to submit that the fact that an individual ‘may’ commit an offence in the future, in the same way that any person without previous convictions might, cannot be a ground for allowing the police to retain personal information: acquitted persons should be in the same position as those who have neither been convicted nor are under suspicion of having committed a crime.
40. This argument echoes an earlier submission and is, in my judgment, flawed. In the circumstances set out in ss 27 and 61-64 of PACE (as amended), the law permits the police to obtain fingerprints together with DNA and other samples from certain people. Those who have been through the process (irrespective of the outcome), have had to provide this material; they are treated identically. On the other hand, those who have not been under such compulsion have not and, quite simply, are not in the same position.
41. Mr Gordon makes the point that, unless they consent to its retention, there remains an obligation to destroy data taken from people on a voluntary basis: that is not because of greater suspicion falling on those who have had to provide the material under compulsion but rather because, without a statutory basis for requiring fingerprints or DNA for the purposes of elimination (even if it might in fact incriminate), the public interest in the detection of crime will be affected simply because people do not have to assist and can refuse. As Mr Bean put it, the difference is one of history rather than one of status or personal characteristics. In any event, for the same reasons as those set out above, if I am wrong and the treatment is discriminatory, the retention has a “legitimate aim and objective and reasonable justification”. I reject the claim under Article 14.
42. Before leaving the Convention, there are two further matters which I ought to mention. The first is the submission that, when considering whether the provision is incompatible with the Convention, deference should be paid to the fact that the Home Secretary declared it compatible, to the views of the Joint Committee on Human Rights and to the will of Parliament. Ample authority was cited in support of that proposition and I accept it without reservation: had I been less convinced about the compatibility of the provisions with the Convention, these considerations would have been important. As it is, although I have cited the views of the Joint Committee and am reassured by them, I am content to reach the conclusion that the provisions are compatible without having to put the fact that they represent the will of Parliament into the balance.
43. The other matter with which I must deal is the Commonwealth jurisprudence. The Court was taken by Mr Gordon to the position in Canada, Australia and New Zealand: I am afraid that I did not find it helpful. The systems in force in these countries are each based on separate statutory provisions, no doubt grounded in the perception of their legislatures as to the steps which it is appropriate to take in their circumstances. How different jurisdictions (even those based on the common law) approach this problem does not impact on the extent to which section 64 of PACE (as amended) complies with this country’s Convention obligations.

Has the Chief Constable unlawfully fettered his discretion?

44. On the basis that section 64(1A) of PACE provides that fingerprints and samples “may be retained”, it is quite clear that the relevant Chief Constable has a discretion whether or not to do so. The practice of the Chief Constable of South Yorkshire (in common, the court was told, with most if not all other Chief Constables) has been to retain all fingerprints save only if a convincing distinguishing feature is raised in a particular case. Mr Bean argued that this policy furthered the most effective investigation of crime and was properly focussed. He identified two examples of how the discretion might be exercised. The first was as in the case of “W” described above (where, prior to the Act, a specific term of an agreement to be bound over was that the fingerprints and other samples would be destroyed); a term of compromise of litigation for malicious prosecution could be another.
45. Mr Gordon argued that these examples were based on considerations of convenience rather than by reference to the over-riding objective of the legislation: this proceeds on the premise (which I have already analysed as flawed) that the governing principle should be the features of the person affected – his age, the type of offence for which he was arrested etc. Once it is accepted that this material is not being retained specifically because the person from whom it was obtained is suspected of committing a criminal offence, this argument collapses. It is thus perfectly appropriate to place the onus on a person seeking an exception to the operation of the general policy to justify why that should be so.
46. The appropriate approach is that set out in British Oxygen Co. Ltd v. Minister of Technology [1971] AC 610 (cited with approval by Lord Scarman in re Findlay [1985] AC 318) per Lord Reid:

“I do not think there is any great difference between a policy and a rule. There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all. But a ministry or large authority must have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that provided the authority is always willing to listen to anyone with something new to say - of course I do not mean to say that there need be an oral hearing.”

47. By accepting the argument advanced in the case of “W”, the Chief Constable has demonstrated a willingness to consider any application not to retain the data on its merits; the example provided by Mr Bean might be another not simply because it is convenient but because it may represent an acceptance that the arrest was not justified in the first place, with the result that the statutory procedure for obtaining samples should never have been invoked.
48. It is sufficient if I conclude that I do not see any basis on public law grounds for challenging the approach adopted by the Chief Constable to the discretion vested in him by section 64(1A) of PACE in relation to the retention of fingerprints and other samples acquired under the preceding provisions of the Act. Furthermore, examining the circumstances of the cases of “S” and Mr Marper, I do not consider that there is any material on which it would be proper to conclude that the Chief Constable erred in his approach to the request to destroy the fingerprints and samples in their cases.

Conclusion

49. I am very conscious that the retention of material by the police (especially when the person in respect of whom it has been collected is acquitted or proceedings are abandoned) may arouse strong feelings; the concept that the authorities retain data which might be used in some way raises concerns which are deeply felt. One of the strengths of the Human Rights Act 1998 is that a forum now exists, through the medium of the courts, to challenge any extension of police powers and to test it against the provisions of the Convention. That itself provides a valuable safeguard.
50. For the reasons which I have sought to advance, in my view, not only do the new powers contained within this provision comply with Convention obligations but also the system of retention is not open to abuse, because a crime scene forensic sample is an essential pre-requisite to any search against the data base and, without a match, the data of any one person will remain untouched. Save for anyone whose material does match (in which event, the investigation of crime is legitimately furthered), the only possible effect, if there is one, will be to exclude from investigation others on the data base. Furthermore, section 78 of PACE exists to provide additional safeguard should that be necessary.
51. In summary, I consider that section 64(1A) of PACE is compatible with Convention obligations and, in particular with Articles 8 and 14. I do not believe that there is any ground for striking down the discretion exercised by the Chief Constable in relation to retention of fingerprints and samples either generally or specifically in the cases of “S” or Mr Marper. I would dismiss these applications.

Lord Justice Rose:

52. I agree.