Gaughran v Chief Constable of the Police Service of Northern Ireland (Northern Ireland) [2015] UKSC 29

Mr Gaughran was convicted of drink driving in Northern Ireland. The PSNI retained his DNA profile, fingerprints and photograph indefinitely. He challenged this under article 8 ECHR. The Supreme Court held, by majority, that indefinite retention was proportionate and lawful.

Facts

On 14 October 2008, the appellant, Fergus Gaughran, was stopped at a police checkpoint in Northern Ireland and arrested for driving with excess alcohol contrary to article 16(1)(a) of the Road Traffic (Northern Ireland) Order 1995. He pleaded guilty on 5 November 2008 at Newry Magistrates’ Court and was fined £50 and disqualified from driving for 12 months.

Following his arrest, the PSNI lawfully and with his consent obtained his fingerprints (article 61 of the 1989 Order), a photograph (article 64A), and a non-intimate DNA sample (article 63). A DNA profile was subsequently extracted from the sample. The PSNI’s policy is to retain such biometric data and photographs of convicted persons indefinitely. The DNA sample itself will be destroyed once section 9 and Schedule 2 of the Criminal Justice Act (Northern Ireland) 2013 come into force.

The appellant sought judicial review, contending that indefinite retention violated his rights under article 8 ECHR. The Divisional Court (Higgins, Girvan and Coghlin LJJ) refused the application. The appeal proceeded to the Supreme Court.

Issues

The certified question was whether the PSNI’s policy of indefinitely retaining the DNA profile, fingerprints and photographs of a person convicted of a recordable offence breached article 8 ECHR. It was common ground that article 8(1) was engaged; the issue was whether the interference was justified under article 8(2), and in particular whether it was proportionate.

Arguments

Appellant

The appellant contended that indefinite retention was disproportionate and failed to strike a fair balance between competing public and private rights, relying heavily on S and Marper v United Kingdom (2009) 48 EHRR 50. He argued that a conviction for a relatively minor offence such as his did not justify indefinite retention, especially where the conviction would become spent under the Rehabilitation of Offenders (Northern Ireland) Order 1978.

Respondent and Intervener

The PSNI and the Secretary of State for the Home Department argued that retention served the legitimate aim of the prevention and detection of crime and identification of future offenders. They submitted that retention contributed to investigation of both future and historic offences, including via ‘cold case’ reviews, and could also exculpate. They contended the policy fell within the United Kingdom’s margin of appreciation.

Judgment

The Supreme Court, by a majority (Lord Clarke, with whom Lord Neuberger, Lady Hale and Lord Sumption agreed), dismissed the appeal. Lord Kerr dissented.

The majority reasoning (Lord Clarke)

Lord Clarke applied the four-stage proportionality test articulated by Lord Reed in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39. He held that S and Marper was concerned solely with the retention of biometric data of persons who had been suspected but not convicted of offences. The Strasbourg Court was not addressing convicted persons, as confirmed by paragraphs 106 and 114 of that judgment.

Lord Clarke held that the policy was justified for several reasons: (i) the ECtHR has recognised the importance of DNA in solving crime; (ii) the interference is at a low level; (iii) the policy is confined to recordable offences and adults; (iv) the DNA sample itself will be destroyed once the 2013 Act commences, leaving only the profile; (v) the retention assists with both future and historic offences and may also exculpate; (vi) the offence of driving with excess alcohol is a serious offence that can endanger life; and (vii) there is a wide range of approaches among Council of Europe states, with many retaining data until death or near-death, broadening the margin of appreciation.

He approved Girvan LJ’s eleven factors in the Divisional Court, including the rationality of using recordable offences as the threshold, the limited use to which the data can be put, the existence of an exceptional case procedure, and the deterrent effect on re-offending.

On the Rehabilitation of Offenders (Northern Ireland) Order 1978, Lord Clarke held that the Order concerns the disclosure of convictions, not the retention of information about convicted persons, and the 2013 Act will expressly provide that retention is not affected by a conviction being spent.

Applying the approach in R (Nicklinson) v Ministry of Justice [2014] UKSC 38, Lord Clarke concluded that the policy was within the margin of appreciation and, viewed domestically, was justified and proportionate.

Lord Kerr’s dissent

Lord Kerr would have allowed the appeal. He held that the policy lacked a sufficient evidence base to demonstrate a rational connection between indefinite retention of biometric data of all those convicted of recordable offences and the detection of future crime. He noted the respondent had accepted there was no robust evidence base for the current policy. He further held that the policy was not the least intrusive measure, since a more nuanced approach (excluding minor offences, gradated retention periods, and a review mechanism) was feasible. He considered that the policy did not strike a fair balance, particularly given the implications of the rehabilitation regime, which he viewed as fundamentally inconsistent with indefinite retention. The margin of appreciation could not rescue a policy whose proportionality had not been properly assessed.

Implications

The decision confirms that the indefinite retention of DNA profiles, fingerprints and photographs of adults convicted of recordable offences in Northern Ireland is compatible with article 8 ECHR. The majority drew a clear distinction between the position of unconvicted persons (governed by S and Marper) and that of convicted persons, holding that Strasbourg has not condemned blanket indefinite retention in respect of the latter.

The judgment confirms the importance of the margin of appreciation where there is no European consensus, and that domestic courts will normally be cautious before holding that a rational measure within that margin nonetheless infringes a Convention right. It also illustrates the Supreme Court’s approach to proportionality post-Bank Mellat, particularly the weight given to the low-level character of the interference and the public benefit of crime detection.

The decision matters principally to convicted persons in Northern Ireland (and by analogy, England, Wales and Scotland), to police authorities operating biometric retention regimes, and to legislators considering reform. Its scope is, however, limited: it concerns adults convicted of recordable offences, not unconvicted persons or children, and was decided on the assumption that DNA samples (as distinct from profiles) will be destroyed under the 2013 Act. Lord Kerr’s dissent flags the possibility of future challenge, particularly to the absence of any review mechanism and the failure to differentiate by offence gravity, but those points did not command a majority.

Verdict: Appeal dismissed (by a majority of 4:1, Lord Kerr dissenting). The certified question was answered in the negative: the PSNI’s policy of indefinitely retaining the DNA profile, fingerprints and photographs of persons convicted of a recordable offence does not breach article 8 ECHR.

Source: Gaughran v Chief Constable of the Police Service of Northern Ireland (Northern Ireland) [2015] UKSC 29