LORD KERR: (dissenting)

Introduction

  • On 14 October 2008 Fergus Gaughran was driving between Crossmaglen and Camlough, County Armagh when his vehicle was stopped at a police checkpoint. As a result of a breath test taken from Mr Gaughran at the scene, it was suspected that he had been driving after having consumed more than the permissible amount of alcohol. He was arrested and taken to a police station in Newry, County Down. There he provided more samples of breath which, when analysed, were found to contain 65 milligrams of alcohol per 100 millilitres of breath. This level of alcohol exceeded the permitted limit by 30 milligrams. Mr Gaughran was charged with the offence of driving with excess alcohol. He pleaded guilty to that offence at Newry Magistrates Court on 5 November 2008 and was fined £50 and ordered to be disqualified from driving for 12 months.

  • As well as supplying samples of breath, Mr Gaughran provided a DNA sample. His photograph and fingerprints were taken. It has been established that, despite initial claims by the appellant to the contrary, all of this was done with his consent and there is no issue as to the legal entitlement of the police to take these steps. The photographs, fingerprints and DNA sample are held on the database maintained by the Police Service of Northern Ireland (PSNI). Section 9 of and Schedule 2 to the Criminal Justice Act (Northern Ireland) 2013 make provision about the retention of samples. When they come into force a new article 63P will be inserted into the Police and Criminal Evidence (Northern Ireland) Order 1989. This will have the effect that Mr Gaughran's DNA sample will be destroyed.

  • But already a DNA profile compiled from his sample has been created by the Forensic Science Agency in Northern Ireland (FSNI). A DNA profile consists of digitised information in the form of a numerical sequence representing a small part of the person's DNA. The DNA profile extracted by FSNI comprises 17 pairs of numbers and a marker ("XX" or "XY") which indicates gender. DNA profiles do not include any information from which conclusions about personal characteristics of an individual, such as his or her age, height, hair colour or propensity to develop a particular disease might be drawn. The purpose of the profile is to provide a means of identification of the person in respect of whom it is held.

  • The European Court of Human Rights (ECtHR) made these observations in para 75 of S and Marper (2009) 48 EHRR 50 about the use to which DNA profiles can be put:

    • "… the profiles contain substantial amounts of unique personal data. While the information contained in the profiles may be considered objective, and irrefutable in the sense submitted by the Government, their processing through automated means allows the authorities to go well beyond neutral identification. The court notes in this regard that the Government accepted that DNA profiles could be, and indeed had in some cases been, used for familial searching with a view to identifying a possible genetic relationship between individuals. It also accepted the highly sensitive nature of such searching and the need for very strict controls in this respect."

  • DNA profiles obtained by police in Northern Ireland, such as that of Mr Gaughran, are held (and, it is intended, will remain) on the Northern Ireland DNA database. Although a profile thus created does not include information as to whether that person has been convicted of or is under investigation for an offence, it contains sufficient material to allow the person concerned to be identified and, of course, it can be used to match a DNA sample subsequently obtained. The photograph and fingerprints of Mr Gaughran have also been retained and it is intended that these will also be kept indefinitely.

  • As of June 2012, the Northern Ireland DNA database included the DNA profiles of 123,044 known persons. DNA profiles uploaded onto the Northern Ireland system are also loaded onto the United Kingdom wide National DNA Database. The retention of Northern Irish DNA profiles on the National DNA Database is governed by the law and policy applicable in Northern Ireland.

  • Mr Gaughran claims that the policy of PSNI to retain for an indefinite period his DNA profile, his photograph and his fingerprints is an interference with his right to respect for a private life guaranteed by article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) and that that interference has not been justified on any of the grounds advanced by the respondent (the Chief Constable of PSNI) or the intervener (the Secretary of State for the Home Department).

  • Article 8 of ECHR provides:

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

    2. There shall be no interference by a 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."

    Justification of an interference with a Convention right

  • It is accepted by the respondent and the intervener that the appellant's article 8 right has been interfered with; the single and central issue in the appeal is whether that interference has been justified. Justification of interference with a qualified Convention right such as article 8 rests on three central pillars. The interference must be in accordance with law; it must pursue a legitimate aim; and it must be "necessary in a democratic society". Proportionality is a sub-set of the last of these requirements. The appellant has not argued that the retention of samples, his photograph and his fingerprints is other than in accordance with law – see articles 64(1A) and 64A(4) of the Northern Ireland PACE Order of 1989. Likewise, it is not disputed that the retention of these pursues a legitimate aim. That aim was identified by ECtHR in S and Marper v United Kingdom at para 100 as "the detection, and therefore, the prevention, of crime". In particular the retention of samples etc. was said to be for the "broader purpose of assisting in the identification of future offenders".

  • One can focus, therefore, on the question of whether the measure is necessary in a democratic society. In the context of this case, that means asking whether the policy is proportionate. As Lord Wilson in R (Aguilar Quila) v Secretary of State for the Home Department [2012] 1 AC 621, para 45 and Lord Reed in Bank Mellat v HM Treasury (No 2) [2014] AC 700, 790, para 72ff explained, this normally requires that four questions be addressed:

    • (a) is the legislative objective sufficiently important to justify limiting a fundamental right?;

    (b) are the measures which have been designed to meet it rationally connected to it?;

    (c) are they no more than are necessary to accomplish it?; and

    (d) do they strike a fair balance between the rights of the individual and the interests of the community?

  • The circumstance that the measure pursues a legitimate aim does not necessarily equate to the objective of the policy being sufficiently important to justify the limitation of a fundamental right, although, in most cases, the pursuit of such an aim will provide an effective answer to the first of the mooted questions. It is, at least hypothetically, possible to conceive of a legitimate aim that a contemplated policy or a legislative provision might seek to achieve but, because the right that would thereby be infringed is so fundamental, no limitation on it, on the basis of the avowed legitimacy of the aim to be pursued, would be defensible. One need not dwell on this, perhaps somewhat esoteric, question, however, because it has not been contended by the appellant that no limitation on his article 8 right could be justified. It is accepted that the need to counteract crime is of sufficient importance to warrant some restriction of the right to respect for private life. But the actual interference, as ECtHR observed in S and Marper at para 101, must conform to the "general principle" of the Strasbourg jurisprudence that an interference will only be considered necessary in a democratic society if it answers "a pressing social need" and, in particular is proportionate to the aim pursued. Importantly, the court stated that the reasons which national authorities proffered to justify the interference must be "relevant and sufficient". This is of especial significance in addressing the question whether it has been shown that there is in fact a rational connection between the breadth of the policy as it is currently framed and the objective which it is said to be designed to achieve.

  • The two critical questions on the issue of the proportionality of the policy of indefinite retention of the appellant's DNA profile, his photograph and his fingerprints are, in my opinion, whether there is a rational connection between the legislative objective and the policy and whether it goes no further than is necessary to fulfil the objective.

    • What is the objective of the policy?

  • It is, I believe, necessary to recognise the distinction between the legislative provisions which authorise the retention of samples etc. and the policy of using those provisions to retain them indefinitely. The justification of, on the one hand, the enactment of statutory provisions which permit retention and, on the other, the use of those provisions to devise a policy to retain without limit must be considered separately. But no distinction has been drawn between the legislation and the policy in terms of their objective. In the case of both, this has been assumed to be that which was articulated in S and Marper v United Kingdom, namely, the detection of crime and assisting in the identification of future offenders.

  • It is of fundamental importance that it be recognised that the objective is not the creation of as large a database of the Northern Irish population as possible, in order that it should be available as a potential resource in the counteracting of crime. The objective is defined in terms of the actual detection of crime and identification of future offenders. This distinction is important because it is not difficult to hypothesise that if everyone's DNA profile was held by police this might have a significant impact on the detection of future criminals. The theory is, perhaps, less obvious but still tenable in relation to photographs and fingerprints. But hypothesis should not be confused with evidence. And the question of whether the retention of DNA profiles, photographs and fingerprints of a limited class of person viz those convicted of recordable offences, as opposed to the population at large, would in fact make a substantial contribution to counteracting crime is, at best, imponderable. But before it can be said that a rational connection exists between the retention of biometric data of all convicted of recordable offences and the detection of crime and identification of future offenders one must go beyond assumption or supposition. To justify an interference, it is necessary that it be shown, at the very least, that the promoted objective will be advanced, in order to support the claim that there is a rational connection between the interference and the stated objective.

    • Rational connection?

  • A connection between the aim of a measure and its terms, in order to qualify as rational, must be evidence-based – see para 101 of S and Marper. Mere assertion that there is such a connection will not suffice, much less will speculation or conjecture that the connection exists. The fact that the interference can be characterised as "relatively slight" (as ECtHR described the retention of DNA profiles and fingerprints of convicted persons in the two admissibility decisions of Van der Velden v The Netherlands 29514/05 EQ-IR and W v The Netherlands 20689-08 (2009) ECHR 277) does not diminish the need for the justification to be established positively. Slight interference may sound on the question of whether a measure can be regarded as no more intrusive than necessary. It does not supply the answer to the question whether it is rationally connected to its avowed aim.

  • Moreover, the rational connection here must be between the objective of the detection of future criminals and the indefinite retention of the profile, fingerprints and photograph. It is not enough that retaining these items on a permanent basis might, in some vague or unspecified way, help in the detection of crime in the future. It is necessary to show that in a real, tangible sense, keeping DNA profiles, fingerprints and photographs indefinitely will assist in counteracting or detecting future crime. That is not to say, of course, that it needs to be shown that retention of the appellant's particular details will assist in preventing or detecting crime in the future. But, as a minimum, it must be established that retaining forever such items from all who have been convicted of recordable crime is likely to make a positive and significant contribution to the detection of future criminal activity.

  • I accept, of course, that it is not required of the state to show that the achievement of the aim of the measure will be the only and inexorable consequence of its implementation. As Lord Reed said in Bank Mellat (No 2), quoting Wilson J in the Canadian case of Lavigne v Ontario Public Service Employees Union [1991] 2 SCR 211, 291 the inquiry into "rational connection" between objectives and means to attain them requires nothing more than showing that the legitimate goals of the legislature are logically furthered by the means government has chosen to adopt. As Lord Reed then put it:

    • "The words 'furthered by' point towards a causal test: a measure is rationally connected to its objective if its implementation can reasonably be expected to contribute towards the achievement of that objective."

  • This is the critical question on this particular aspect of the proportionality analysis. Can the indefinite retention of biometric data of all who are convicted of recordable offences be reasonably expected to contribute to the detection of crime and the identification of future offenders? It is, of course, tempting to make the assumption that the more DNA profiles etc. that the police hold, the greater will be their chances of discovering the identity of those who commit crime in the future. But there is a striking lack of hard evidence to support the claim that a blanket policy of retaining such items indefinitely is indispensable to the need to counteract crime or even that it will make a significant contribution to the detection of future crime. The usefulness of the assembly of a pool of personal data to assist with the detection of crime was rejected in S and Marper as justification for interference with the article 8 right and should also be in this case. Without proof as to the likelihood of reoffending, there is no obvious, or rational, connection between the current policy and reducing crime.

  • The current system operates on the assumption that all persons who, at any time, commit any offence are potential suspects in any future crime. No evidence to support this has been provided. Indeed, the only evidence proffered by the respondent on this issue was that which suggested that 90% of those who were given custodial sentences reoffended within two years, regardless of the nature of the original offence. But the true significance of this particular statistic must be recognised. It involves (a) the commission of more serious offences, which attract a custodial offence; (b) more serious offenders, where the custodial option has been chosen; and (c) time-limitation, rather than indefinite duration. In fact, the respondent accepted during the hearing that there was no robust evidence base for the current policy. It seems to me clear, therefore, that a rational connection between the policy and its professed aim has not been established.

  • Much was made in the Divisional Court of the fact that S and Marper was concerned with the retention of the data of persons who had not been convicted. But the need for a rational connection between the broad policy of indefinite retention of the DNA profiles, photographs and fingerprints of all who have been convicted of recordable offences is just as necessary in their case. The connection cannot be considered to be supplied simply by the fact of conviction. Many who have been convicted, especially of less serious recordable offences never re-offend. The rational connection between the retention of their biometric data and photographs still needs to be established. It is not to be inferred or presumed simply because they have been found guilty.

  • Nor can the connection be presumed to exist just because the importance of the use of DNA material in the solving of crime has been recognised by ECtHR. It requires a considerable leap of faith, or perhaps more realistically, a substantial measure of conjecture, to say that simply because DNA material is useful in combatting crime in a general way the retention forever of DNA profiles of everyone convicted of a recordable offence establishes the rational connection between that particular policy and the aim the detection of crime and the identification of future offenders. In this connection, it should be remembered that recordable offences occupy a wide spectrum of criminal activity. Under the Northern Ireland Criminal Records (Recordable Offences) Regulations 1989 they include not only all offences punishable by imprisonment but also examples of what may fairly be described as minor, not to say trivial, offences such as tampering with motor vehicles (article 173 of the Road Traffic (Northern Ireland) Order 1981: improper use of the public telecommunications system (section 43 of the Telecommunications Act 1984). To take some even more extreme examples they include blowing a horn "or other noisy instrument" or ringing any bell for the purpose of announcing any show or entertainment or hawking, selling, distributing or collecting any article whatsoever, or obtaining money or alms; wilfully and wantonly disturbing any inhabitant by ringing any doorbell or knocking at any door without lawful excuse, all under section 167 of the Belfast Improvement Act 1845 and being drunk in any street under section 72 of the Town Improvement (Ireland) Act 1854. These might be considered to be frivolous examples of recordable crimes which would never, in practical reality, generate the taking of biometric samples but they serve to illustrate the extremely wide potential reach of PSNI's current policy and the failure of PSNI to confront the implications of the breadth of its possible application.

    • No more than necessary to achieve the aim?

  • If one accepts the premise that the retention of DNA profiles, fingerprints and photographs of those convicted of crime can help in the detection and identification of future offenders, the question arises whether a more tailored approach than that of the current PSNI policy in relation to the retention of those materials, sufficient to satisfy the aim, is possible.

  • ECtHR has consistently condemned, or, at least, has been extremely wary of, measures which interfere with a Convention right on an indefinite or comprehensive basis. Thus in Campbell v United Kingdom (1992) 15 EHRR 137 the court rejected the justification for opening and reading all correspondence between prisoners and solicitors, pointing out that letters could be opened to check for illicit enclosures without having to be read at para 48. And in Open Door Counselling and Dublin Well Woman v Ireland (1992) 15 EHRR 244, the permanent nature of an injunction granted by the Supreme Court of Ireland restraining the applicants from counselling pregnant women in Ireland on the options for travelling abroad to obtain an abortion was found to be disproportionate. The Irish Supreme court had granted an injunction, restraining the applicants from counselling or assisting pregnant women to obtain further advice on abortion. ECtHR found the injunction to be disproportionate and in breach of article 10, because of its "perpetual" nature and because of its sweeping application. It applied regardless of the age or health of the women who sought the applicants' advice or of the reasons that the advice was sought at para 73.

  • The question whether a measure interfering with a Convention right is no more than necessary to achieve the aim is sometimes expressed as an inquiry into whether the "least intrusive means" has been chosen. This has not always been the basis used by the Strasbourg court as a measure of the proportionality of a particular species of interference and it has been suggested that it is "a factor to be weighed in the balance, but … not insisted on in every case" – Arden LJ Human Rights and European Law (2015) OUP, p 60. In R (Wilson) v Wychavon District Council Richards LJ [2007] QB 801 suggested that the least restrictive means test was not an integral part of the proportionality assessment.

  • Recent case-law from ECtHR suggests, however, that resort to the "least intrusive means" approach will be much more readily made in deciding whether interference with a Convention right is proportionate. In Mouvement Raelien Suisse v Switzerland (2012) 16354/06, BAILII: [2012] ECHR 1598, para 75, the court observed at the conclusion of its proportionality reasoning: "the authorities are required, when they decide to restrict fundamental rights, to choose the means that cause the least possible prejudice to the rights in question". And in Nada v Switzerland (2013) 10593/08 ,BAILII: [2012] ECHR 1691, para 183, ECtHR made similar comments:

    • "The court has previously found that, for a measure to be regarded as proportionate and as necessary in a democratic society, the possibility of recourse to an alternative measure that would cause less damage to the fundamental right at issue whilst fulfilling the same aim must be ruled out."

  • In Bank Mellat Lord Reed, in outlining the four-fold test of proportionality followed the approach of Dickson CJ in the Canadian case of R v Oakes [1986] 1 SCR 103. It is worth recalling that Lord Reed, in articulating the third element of the test, specifically endorsed the approach that one should ask "whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective".

  • Of course it is true that this approach does not require the condemnation of an interference simply on the basis that it is possible to conceive of a less intrusive interference at a theoretical level. The mooted less intrusive measure must be capable of fulfilling, and must not unacceptably compromise, the objective. As Lord Reed pointed out, "a strict application of a 'least restrictive means' test would allow only one legislative response to an objective that involved limiting a protected right". But where it is clear that the legislative objective can be properly realised by a less intrusive means than that chosen, or where it is not possible to demonstrate that the database that is created by the PSNI policy is in fact needed to achieve the objective, this is, at least, a strong indicator of its disproportionality.

  • I suggest, therefore, that the least restrictive measure test is now well established as part of domestic law. A recent example of its application is to be found in a case decided in October 2014, R (Gibraltar Betting and Gaming Association Ltd) v Secretary of State for Culture, Media and Sport [2014] EWHC 3236 (Admin) where the High Court went to considerable lengths in paras 182-190 to analyse this test as part of its proportionality analysis under the TFEU, ultimately explicitly accepting that "the least restrictive measure test is a proper part of the proportionality assessment." See also R (Sinclair Collis Ltd) v Secretary of State for Health [2012] QB 394.

    • European Union law on the least restrictive means test

  • It is beyond question that proportionality is a fundamental principle of EU law. In the Skimmed Milk Powder case Bergman v Grows-Farm [1977] ECR 1211 it was held that, in order to be lawful, an obligation had to be necessary in order to attain the objective in question. Similarly, in Commission v United Kingdom (Re UHT Milk) [1983] ECR 203, at para 236, the ECJ commented:

    • "It must … be ascertained whether the machinery employed in the present case by the UK constitutes a measure which is disproportionate in relation to the objective pursued, on the ground that the same result may be achieved by the means of less restrictive measures."

  • EU law and that of ECHR have become increasingly assimilated, not least because of the possible future accession of the EU to the Convention and the enactment of the European Charter on Human Rights. In this context, see also cases such as Baumbast v Secretary of State for the Home Department [2002] (Case No C-413/99) [2003] ICR 1347. The Court of Justice of the European Union has traditionally given the Convention "special significance" as a "guiding principle" in its case law (Anthony Arnull, The European Union and its Court of Justice (2006) pp 339-340) and therefore, while the EU approach to proportionality is not necessarily to be imported wholesale into the Convention analysis, it is clear that the prominence given to this general principle in EU law is likely to be reflected in Strasbourg jurisprudence.

    • Canadian case-law

  • Lord Reed in Bank Mellat (No 2), referred to the circumstance that Canadian law has long embraced the least restrictive measures principle – see, in particular, Ford v Quebec [1988] 2 SCR 712 and Black v Royal College of Dental Surgeons [1990] 2 SCR 232 and the classic exposition of the test in R v Oakes above.

  • In Libman v AG of Quebec (1997) 151 DLR (4th ed) 385, paras 415-416 the court stated:

    • "The government must show that the measures at issue impair the right of free expression as little as reasonably possible in order to achieve the legislative objective. The impairment must be 'minimal', that is the law must be carefully tailored so that rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the court will not find it over broad because they can conceive of an alternative which may better tailor the objective to infringement."

  • This approach is largely mirrored in the current case-law of this country, particularly Bank Mellat (No 2). There must be a proper inquiry into whether the measure affects the right of the individual no more than is necessary. That does not require the state to show that every conceivable alternative is unfeasible – a condition of unique practicability is not demanded. But if it is clear that the measure goes beyond what the stated objective requires, it will be deemed disproportionate.

    • Application of the principles to the present case

  • 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.

    • A fair balance?

  • The final element in the proportionality examination is whether a fair balance has been struck between the rights of the individual and the interests of the community. Although this may not be of quite the same importance as the rational connection and less intrusive means factors, it deserves consideration in its own right. The starting point must be a clear recognition of the importance of the rights of the individual. This was emphasised by ECtHR in S and Marper at para 103:

    • "The protection of personal data is of fundamental importance to a person's enjoyment of his or her right to respect for private and family life, as guaranteed by article 8 of the Convention. The domestic law must afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees of this article. The need for such safeguards is all the greater where the protection of personal data undergoing automatic processing is concerned, not least when such data are used for police purposes. The domestic law should notably 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. The domestic law must also afford adequate guarantees that retained personal data was efficiently protected from misuse and abuse. The above considerations are especially valid as regards the protection of special categories of more sensitive data and more particularly of DNA information, which contains the person's genetic make-up of great importance to both the person concerned and his or her family."

  • At para 104 the European court acknowledged that the interests of the data subjects and the community as a whole in protecting personal data could be outweighed by the legitimate interest in the prevention of crime but it emphasised that the intrinsically private character of the information called for careful scrutiny of any state measure authorising its retention and use by state authorities.

  • Addressing the blanket and indiscriminate nature of the power of retention, the court said this at para 119:

    • "The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken - and retained - from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time limited; the material is retained indefinitely whatever the nature of seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database or the materials destroyed; in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances."

  • While this was said in relation to those who had not been convicted of crime, much of this passage is clearly relevant to the issue under discussion here. No differentiation is made based on the gravity of the offence of which an individual was convicted; the retention is not time-limited, whatever the offence; and there is no provision for independent review of the justification for the retention of the data.

  • The court also addressed the question of stigmatisation of individuals by the retention of data. At para 122 it said:

    • "Of particular concern in the present context is the risk of stigmatisation, stemming from the fact that persons in the position of the applicants, who have not been convicted of any offence and are entitled to the presumption of innocence, are treated in the same way as convicted persons. In this respect, the court must bear in mind that the right of every person under the Convention to be presumed innocent includes the general rule that no suspicion regarding an accused's innocence may be voiced after his acquittal. It Ii true that the retention of the applicants' private data cannot be equated with the voicing of suspicions. Nonetheless, their perception that they are not being treated as innocent is heightened by the fact that their data are retained indefinitely in the same way as the data of convicted persons, while the data of those who have never been suspected of an offence are required to be destroyed."

  • Of course, it is true that the sense of stigmatisation may be more acutely felt by those who have been acquitted of crime but that does not mean that someone such as the appellant would be free from such sentiment knowing as he does that his biometric data and photograph will forever remain on police databases. Although he has been convicted of a crime, and a serious crime at that, he is entitled to be presumed innocent of future crime notwithstanding that conviction. His sense of stigmatisation and the impact that the retention of his data on police databases must be taken into account, therefore, in an assessment of whether a fair balance has been struck between his rights and the interests of the community as a whole. As Lord Reed observed in para 71 of Bank Mellat this involves what is essentially a value judgment. Making due allowance for what has been claimed will be the contribution made to fighting crime by the indefinite retention of data from those such as the appellant, when weighed against his personal interests, my judgment is that a fair balance has not been struck between the two.

  • I am reinforced in this view by consideration of the provisions and intended effect of the Rehabilitation of Offenders (Northern Ireland) Order 1978. By virtue of article 5 of that Order, a person who has become rehabilitated for the purposes of the Order is to be "treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence". Retaining the biometric data of someone who has become rehabilitated is plainly inconsistent with the requirement that he or she be treated as if they had never been convicted of the offence. Conviction of the offence is the very basis on which the data are retained. If Mr Gaughran had not been convicted, his data could not be retained. But he is being treated markedly differently from someone who has not been convicted.

  • The Secretary of State has submitted that the sole effect of the Order is to restrict the use that may be made of past convictions in legal proceedings, eg where the subject has suppressed a spent conviction. This cannot be right. The contexts in which a rehabilitated offender is entitled to demand that he or she be treated in precisely the same way as someone who has not been convicted are not prescribed by the Order. If a rehabilitated offender is entitled, for instance, to refuse to disclose that he has not been convicted when applying for employment, why should he not be entitled to demand that his biometric data be destroyed, after the original purpose in obtaining them is no longer relevant, just as someone who has been arrested but not convicted of an offence is entitled to do?

  • It is suggested that the fact that a conviction may become spent is no more than one of a number of factors to be taken into account in deciding whether a proper balance has been struck between the appellant's rights and the interests of the community. I consider that it ranks much higher than this. The single basis on which Mr Gaughran's biometric material is retained is that he has committed a crime. If the principle of rehabilitation is to have any meaning, ex-offenders such as he cannot be defined by the fact of their former offending. The philosophy underlying the rehabilitation provisions is the restoration of the ex-offender to his or her position as a citizen without the stigma of having been a criminal. He once more shares with his fellow citizens, entitlement to be treated as if he was of good character. If the fact that his conviction is spent is relegated to the status of a single factor of no especial significance, the purpose of rehabilitation is frustrated.

  • Rehabilitation is our criminal justice system's way of acknowledging and encouraging the potential for personal growth and change. If we continue to define ex-offenders throughout their lives on the basis of their offending we deprive them of reintegration into society on equal terms with their fellow citizens. The only reason proffered to justify the denial of that hope is the assertion that those convicted of offences may reoffend. The premise which must underlie this claim is that those convicted of recordable offences are more likely to reoffend than those who have not been. But no evidence has been presented to support that claim. Unsurprisingly, therefore, no attempt to quantify such a risk has been made. It is difficult to avoid the conclusion that the fact of conviction merely provides the pretext for the assembly and preservation of a database which the police consider might be useful at some time in the future and that it has no direct causal connection to the actual detection of crime and the prevention of future offending.

  • In any event, for the principle of rehabilitation to have proper effect, it is necessary that, once a conviction is spent, any supposed or presumed risk be regarded as having dissipated. Offenders whose convictions are spent must be treated as any other citizen would be treated. Allowing their biometric details to be retained indefinitely is in flat contradiction of that fundamental principle.

  • It is, of course, true that Mr Gaughran's conviction was not spent when the case was decided in the Divisional Court but that is nothing to the point. In the first place, his conviction is now spent and, more importantly, the PSNI policy proceeds on the basis that the Rehabilitation Order provisions can effectively be ignored. I do not believe that they can be and they constitute an unanswerable reason that the policy does not strike a fair balance between the rights of individuals who are entitled to the benefit of the Order's rehabilitation provisions and the interests of the community.

  • It might be said that, when the 2013 Act comes into force, there will be an express statutory power to retain indefinitely all biometric data of those convicted of a recordable offence. If that will indeed be its effect, serious questions will arise, in my opinion, about its compatibility with article 8 of ECHR. But that is not a matter for decision in this case. The possibility of future legislation underpinning the present policy of PSNI should not deflect this court from recognising the current illegitimacy of that policy.

    • Margin of appreciation

  • It is, of course, the case that a margin of appreciation is available to national authorities in deciding where to strike the balance between the rights of the individual under article 8 of ECHR and the interests of the community. The use and advantage of that margin is exemplified by the consideration in S and Marper of the different standards that have been adopted by various member states of the Council of Europe. It is also referred to in the judgment of Lord Clarke and in the annexes to his judgment.

  • For a margin of appreciation to be accorded to the choice of the member state, however, some consideration must have been given by that state to the issues at stake and a considered judgment must have been made on the options available. One cannot excuse a slack or ill-considered policy as survivable just because it can be said to be open to the member state to make a choice which is different from that of other member states. There needs to be some form of evaluation or judgment of the issues at stake. If the choice is the product of consideration and is designed to meet the particular circumstances or conditions encountered in the particular member state, that is one thing. But an ill-thought out policy which does not address the essential issues of proportionality cannot escape condemnation simply because a broad measure of discretion is available to an individual state.

  • 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.

    • Conclusion

  • I would therefore allow the appellant's appeal and declare 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.