B e f o r e :
THE LORD CHIEF JUSTICE OF ENGLAND & WALES
LORD JUSTICE WALLER
LORD JUSTICE SEDLEY
| || The Queen on the application of Marper and Another ||Appellants|
| ||- and -|
| ||Chief Constable of South Yorkshire/|
Secretary of State for the Home Department
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
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David Bean QC; Mr David N Jones (instructed by South Yorkshire Police solicitor) for the Chief Constable of South Yorkshire
Richard Gordon QC; Mr Stephen Cragg (instructed by Messrs Howells) for the Appellants
Rabinder Singh QC; Mr James Strachan (instructed by Treasury Solicitor) for the Secretary of State
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The Lord Chief Justice:
- This judgment relates to two appeals. The appeals are against the judgment of the Divisional Court given by Leveson J on 22 March 2002 when sitting with Lord Justice Rose, Vice-President. The point that court decided was that the retention of the fingerprints and DNA samples of individuals who had not been convicted of criminal offences did not contravene either the individual’s right to privacy under Article 8 or his right not to be discriminated against under Article 14 of the European Convention of Human Rights (ECHR). The Divisional Court therefore dismissed the applications for judicial review made by the appellants, who are respectively a child known as ‘S’ and Michael Raymond Marper.
- The two cases provide further examples of the role that courts are now required to perform under the Human Rights Act 1998 of holding the balance between the rights of the individual and the rights of the State. The cases are of particular interest because in this country the public are particularly sensitive about the State unnecessarily retaining personal information about members of the public or requiring members of the public to provide information to the State without good reason. An example of the latter sensitivity being the controversy created by any proposal to require individuals to carry identity cards.
- On these appeals, it is the retention of fingerprints and DNA samples which were taken during the course of criminal investigations if the prosecutions of the individuals from whom they were taken are either discontinued or result in an acquittal that is challenged. Prior to the coming into force of section 82 of the Criminal Justice and Police Act 2001 (“CJPA”) on 11 May 2001 the retention of the fingerprints and samples would undoubtedly have been unlawful because of the terms of section 64 of the Police and Criminal Evidence Act 1984 (“PACE”). However, section 64 of PACE was amended by section 82 of the CJPA and the section as amended on its literal interpretation undoubtedly authorises their retention in those circumstances.
- The appeals are concerned with the issue of principle already identified, but the circumstances of the two cases illustrate admirably how the issue can arise. As the facts are succinctly stated in the judgment of Leveson J I gratefully adopt his account which is in these terms:
THE CASE OF ‘S’
- ‘S’ is a 12 year old boy. He has no previous convictions, cautions or warnings. On 27 January 2001, following his arrest and being charged 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 these 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 the Police and Criminal Evidence Act 1984
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.
- 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.
- 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.
- 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.
- 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 CASE FOR THE APPELLANTS
- Mr Gordon QC on behalf of the appellants advances seven propositions on behalf of the appellants. They are as follows:
i) The retention of fingerprints and other samples from persons in the position of the appellants constitutes an interference with their right to respect for private life as required by Article 8(1) ECHR. (“The Article 8(1) Issue”)
ii) Such interference is not “in accordance with the law” as Article 8(2) requires as the first and most basic prerequisite for justified interference that a measure of this kind (i.e. section 64 of PACE as amended) is “in accordance with the law” and for this there must be some identifiable criteria for invoking it and here there are none.
iii) Further, and in any event, the interference complained of is not necessary in a democratic society for the prevention of crime (or for any other specific aim under Article 8(2)) because it is not proportionate to the legitimate aim of preventing crime. (ii & iii together are referred to as “The Article 8(2) Issue”.)
iv) The retention of samples of persons in the appellants’ position discriminates, without objective justification, between different groups of members of a relatively similar class, namely between those who have never been suspected of committing a criminal offence and those who have been suspected of or charged with committing a criminal offence but never convicted of a criminal offence. As such the retention is contrary to Article 14 ECHR. (“the Article 14 Issue”)
v) It would be possible to give section 64 PACE as amended “a read down or an implied Convention compatible meaning” to the extent that the Court is prepared to read in words excluding from the operation of section 64 the category of persons to whom the appellants belong, namely those who have no previous convictions and who have not been convicted of the offence in respect of which the samples were taken or, at least in respect of such a category of offence, implying into the statute discretionary criteria and procedural safeguards so as to ensure that the retention of samples was proportionate to the legitimate aim of crime prevention.
vi) To the extent that such a reading cannot be given to the section then section 64 PACE (as amended) should be declared to be incompatible with Articles 8 and 14 ECHR. (Together with (v) referred to as “the section 3 HRA 1998 Issue”)
vii) Whether or not section 64 PACE is incompatible with the ECHR the policy of the Chief Constable is incompatible with Article 8 because: (1) there are no foreseeable criteria for the interference with Article 8 and it is, therefore, not in accordance with the law, (2) as expressed it is disproportionate to the (undoubtedly) legitimate aim of preventing crime, (3) it is in breach of Article 14 ECHR, (4) it is (in all but name) a blanket policy and, therefore, in ordinary domestic law a fetter on discretion and (5) it misinterprets the Parliamentary intent in PACE (as amended) because it assumes that Parliament intends no distinction to be drawn between categories of unconvicted persons (“The Discretion Issue”).
- Both the Secretary of State and the Chief Constable adopted the reasoning of Leveson J for dismissing this appeal. Against the background to the legislation, which he regarded as being of importance, Leveson J came to the conclusion that while the taking of fingerprints and DNA samples constituted an interference with a person’s private life contrary to Article 8(1) he was unclear whether the retention of fingerprints and DNA samples was contrary to Article 8(1). However, he did not find it necessary to finally determine the position as to retention because he was satisfied that the retention was justified by Article 8(2). He also came to the conclusion that there was no contravention of Article 14. Finally, he decided that the Chief Constable had not unlawfully fettered or otherwise inappropriately exercised his discretion. Lord Justice Rose agreed with the judgment of Leveson J.
- Prior to the hearing of the appeal, Liberty applied for permission to intervene. Liberty was then given permission to make written submissions. The submissions made by Liberty raised new issues in relation to DNA. As the Secretary of State and the Chief Constable had no opportunity to answer the submissions made by Liberty, they were given a limited period of time to make written submissions in answer to those of Liberty in writing. We will deal with their submissions in the course of dealing with the issues raised by Mr Gordon on behalf of the appellants. The most important feature of Liberty’s submissions is that they draw attention to the prospect of DNA samples being used to provide a great deal more information about the persons who provide the samples than is needed for the purposes of the identification of those involved in crime.
- As is made clear by Mr Gordon’s submissions, when resolving this appeal it is necessary to distinguish between the taking, the retention and the use of fingerprints or DNA samples. In the case of DNA it is also necessary to distinguish between DNA samples and the profiles which can be obtained from the samples.
- I turn to the relevant statutory provisions which are contained in PACE as amended. Leveson J correctly points out that the scheme of the legislation and the history of how it has been amended are important when determining the issues which are raised by this appeal. PACE was intended to play a central role in achieving greater fairness within the criminal justice system and it has undoubtedly made a significant contribution towards achieving that objective. Some of the Act’s provisions, a prime example being section 78, assist in fulfilling the purpose of the Act by conferring a broad discretion on the trial judge. Other sections contribute towards achieving the objective by making detailed provisions as to what is to happen in particular circumstances. The sections dealing with the taking, retention and use of fingerprints and samples of DNA fall within this latter category.
- Whether or not the statutory provisions comply with the Articles of the ECHR, they undoubtedly represent an attempt by Parliament to achieve a fair balance between the interests of the law-abiding public as a whole and the individual citizen. Where this is the situation, it is important that the courts show appropriate deference to the body whose decision has the advantage of being able to rely on unimpeachable democratic credentials. Any judge, or for that matter any member of the public will have his or her own opinion as to how the balance should be drawn. However, their individual opinions will lack any democratic support. In considering each of the submissions, of Mr Gordon and Liberty, I regard it as being fundamental that the Court keeps at the forefront of its consideration its lack of any democratic credentials.
- So far as the prevention and detection of crime is concerned, it is obvious the larger the databank of fingerprints and DNA samples available to the police, the greater the value of the databank will be in preventing crime and detecting those responsible for crime. There can be no doubt that if every member of the public was required to provide fingerprints and a DNA sample this would make a dramatic contribution to the prevention and detection of crime. To take but one example, the great majority of rapists who are not known already to their victim would be able to be identified. However, PACE does not contain blanket provisions either as to the taking, the retention, or the use of fingerprints or samples; Parliament has decided upon a balanced approach.
- The power to retain fingerprints and samples is, of course, subject to such fingerprints and samples having been taken in the first place. The powers and restrictions on the taking of fingerprints and samples are all contained in PACE. Section 27 of PACE provides for the taking of fingerprints:
from a person who has been convicted of a recordable offence, who has not at any time been in police detention for the offence and has not had his fingerprints taken in the course of the investigation of the offence or since the conviction;
the taking of fingerprints from such a person who has had his fingerprints taken before, but the fingerprints taken were not a complete set or were not of sufficient quality to allow statutory analysis, comparison or matching.
- Section 61(1) of PACE prohibits the taking of any person’s fingerprints without the appropriate consent except as provided for by later subsections of the same section. Section 61(2) provides that consent for the taking of fingerprints must be in writing if it is given at a time when a person is at a police station. Sections 61(3) and (4) provide for the taking of fingerprints without the appropriate consent if a person is detained at a police station, but only where:
an officer of at least the rank of Superintendent [to be replaced by Inspector from a day to be appointed under the CJPA] authorises them to be taken. Such authorisation may only be given where the officer has reasonable grounds for suspecting the person of a criminal offence, and for believing that his fingerprints will tend to confirm or disprove his involvement [or the fingerprints will facilitate ascertainment of his identity where he has refused to identify himself, or there are reasonable grounds for suspecting he is not who he claims to be – amendment by the CJPA from a day to be appointed];
if the individual has been charged with a recordable offence, or informed he will be reported for such an offence, and he has not had his fingerprints taken in the course of the investigation of that offence by the police: see section 61(3)(b).
- Section 61(3A) will permit the retaking of fingerprints for persons otherwise falling within section 61(3)(b) if the fingerprints previously taken are not complete, or are not of sufficient quality to allow satisfactory analysis, comparison or matching. This section is added by the CJPA and is due to come into force on a day to be appointed.
- Section 61(4A) (as inserted by the CJPA) will provide for the taking of fingerprints without the consent of a person who has answered to bail at a court or police station with the consent of the court or an inspector, subject to a requirement of reasonable grounds for believing that the person is not who he claims to be – see section 61(4B).
- Section 61(6) provides for the taking of fingerprints without consent if the person has been convicted of a recordable offence. This section is amended by the CJPA so that it will apply this power to those given a caution in respect of such an offence, or those who have been warned or reprimanded for such an offence. Section 61(7) imposes a requirement that a person be told of the reason for his fingerprints being taken, and that the reason shall be recorded as soon as practicable. Section 61(7A) will require, from a date to be appointed, that the person shall be informed before the fingerprints are taken, that they may be the subject of a speculative search and the fact that he has been informed of this will be recorded.
- Similar provisions and restrictions on the taking of intimate samples are provided for under sections 62 and 63 of PACE, subject to additional restrictions on who may take the particular sample. Supplementary powers for the taking of fingerprints and samples, and the checking of fingerprints and samples against other records have been included in section 63A of PACE by the CJPA, such as the taking of samples in prisons and requiring persons charged with a recordable offence to attend a police station for the taking of a sample.
- I draw attention to the statutory provisions to which I have referred because they make clear that we are dealing with a situation where Parliament has drawn up a code carefully designed to prescribe the circumstances in which the steps referred to can and cannot be taken.
- Where the provisions of PACE relating to the taking of fingerprints and samples, to which I have referred so far have been amended by Parliament the general effect of the amendments has been to extend the situations in which the taking of fingerprints and samples is permitted. The same is true of section 64, which deals with their retention. Section 64 of PACE (as amended by section 82 of the CJPA), provides, so far as material, as follows:
“64. Destruction of fingerprints and samples
(1A) Where –
(a) fingerprints or samples are taken from a person in connection with the investigation of an offence, and
subsection (3) below does not require them to be destroyed,
the fingerprints and 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 the purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution.
fingerprints or samples are taken from a person in connection with the investigation of an offence; and
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 –
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.”
- The most important change introduced by the CJPA is that it removes the requirement that if the person from whom the fingerprints or samples were taken in connection with the investigation of an offence is cleared of that offence the fingerprints and samples, subject to specified exceptions, are to be destroyed “as soon as it is practicable after the conclusion of the proceedings”.
- Mr Gordon does not suggest that the taking of the fingerprints or samples, in accordance with the statutory provisions, contravenes the requirements of Articles 8 or 14. He accepts that in that respect the regime contained in PACE, after it has been amended, conforms with the Human Rights Act. His complaint is confined to the fact that their retention is authorised after the person from whom they have been taken is no longer being proceeded against as a result of the investigation in connection with which they were taken. In order to understand Mr Gordon’s contentions it is necessary to have the language of Articles 8 and 14 clearly in mind. The Articles are in the following terms:
- Article 8 provides:
“Article 8 – Right to Respect for Private Life and Family Life
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 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:
“Article 14 – Prohibition of Discrimination
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, property, birth or other status.”
It is important to note that Article 14 does not prohibit all discrimination. It is only concerned with discrimination on grounds "such as" those specified by the Article. It is difficult to treat discrimination based on a difference in the treatment between those from whom fingerprints or samples have been lawfully taken from those from whom they have not been taken as falling within the language of the Article.
- When applying Articles 8 and 14 of the ECHR effect has to be given to sections 2, 3 and 4 of the Human Rights Act 1998. Section 2 requires the court to take into account the decisions of the European Court of Human Rights; section 3 requires the court, so far as it is possible, to interpret legislation in a way which is compatible with the ECHR and section 4 requires the court, provided it is satisfied that legislation is incompatible, to consider making a declaration to that effect.
THE ARTICLE 8(1) ISSUE
- There is no binding authority as to whether the retention of fingerprints and samples of DNA interferes with the right of privacy of the person from whom they are taken. It is conceded that the taking of the fingerprints and samples would do so and that their use probably does so. However, Mr Bean QC, on behalf of the Chief Constable, and Mr Rabinder Singh QC contend that Leveson J was right to have doubts on the subject. They argue that there is an important distinction between taking and retention and rely on decisions of the Commission, which they submit are in their favour. (See: McVeigh, O’Neill and Evans v United Kingdom (1981) 25 DR 15, Kinnunnen v Finland (application no. 24950/94). They also seek to distinguish the decisions of the Commission which were relied on by Mr Gordon.
- The extent to which the retention of material of this nature is regarded as interfering with the personal integrity of the individual, as it seems to me, depends very much on the cultural traditions of a particular State. So far as this jurisdiction is concerned it is my view that fingerprints and DNA samples are material which is regarded as being personal to the individual from whom it is taken and so requires legal justification before it can be retained. This was made clear by the approach of section 64 before it was amended and is still reflected in the language of the section as amended. I find support in my approach in the speech of Lord Steyn in Attorney General’s Reference (No 3 of 1999)  2 AC 91. It would not have been necessary for Lord Steyn to justify the retention under Article 8 if the retention being considered in that case was not regarded as being prima facie contrary to Article 8(1).
- While I am satisfied that Article 8(1) applies to the retention, the extent of the interference with that Article is important when considering the next issue, namely whether the interference can be justified under Article 8(2). As to this I do not regard the interference as being significant. Here I recognise the relevance of two passages from Leveson J’s judgment upon which the respondents rely:
“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 or a cigarette end) the power of the technique both to eliminate those who might have been suspected or incriminate others is enormous. (Paragraph 6)
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. (Paragraph 19)”
- Nonetheless, while not substantial, the interference is still real. There are no doubt a rainbow of reactions which are possible to intrusions of this nature, but at least for a substantial proportion of the public there is a strong objection to the State storing information relating to an individual unless there is some objective justification for this happening. The objection to the storage is reflected in the appreciative public response to novels such as Aldous Huxley’s “Brave New World” and George Orwell’s “1984”. As to the persuasive decisions of the Commission, it has to be remembered that just as in the appropriate circumstances a margin of appreciation has to be extended for any shortcomings in this jurisdiction in relation to observing the ECHR, so there can be situations where the standards of respect for the rights of the individual in this jurisdiction are higher than those required by the ECHR. There is nothing in the Convention setting a ceiling on the level of respect, which a jurisdiction is entitled to extend to personal rights. In this jurisdiction I would not expect a court to necessarily follow the decision of the Commission in Reyntjens v Belgium (1992) 73 DR 136 that:
“….. The obligation to carry an identity card and to show it to the police when requested to do so does not as such constitute an interference in a person’s private life within the meaning of Article 8 of the Convention”. (Paragraph 23.)
- It is also to be noted in relation to the last remarks of Leveson J cited that the information relating to the genetic make up of an individual which can be obtained from a DNA sample is continually expanding.
THE ARTICLE 8(2) ISSUE
- Having surmounted the first hurdle as to whether Article 8(1) applies, Mr Gordon argues that no sufficient justification for the retention has been advanced by either the Secretary of State or the Chief Constable. The catalyst for the amendment to section 64 introduced by the 2001 Act were two prosecutions in which the prosecution had relied on DNA samples which should have been destroyed. In the case of R v Weir (1999/4829/W. 2) a conviction of murder was quashed because of the evidence obtained from a DNA sample which had been unlawfully retained being given at the trial. In the other case R v B the judge refused to allow the evidence to be given and this resulted in the decision of the House of Lords to which reference has already been made, (Attorney General Reference (No 3 of 1999). In that case it was decided that the fact that the sample had been kept in contravention of the then provisions of PACE did not mean that the evidence necessarily had to be excluded. Instead it was a question for the judge under section 78 PACE. Lord Steyn expressed his approach which was to be adopted in these terms (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.”
Then in answer to the argument that use of a sample, which should have been destroyed itself constituted a breach of Article 8, he added (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.”
- Lord Steyn was clearly of the opinion that in its unamended form section 64 did not attach sufficient significance to the importance of protecting the public against the consequences of crime. In the House of Commons, on 29 January 2001, the Home Secretary when supporting the proposed amendment referred to Lord Steyn’s speech and said:
“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 with arguments together, I believe that the current state of the law is wholly unsatisfactory.”
- The respondents strongly rely on the extent of the parliamentary scrutiny of the CJPA. It was extensive both in the House of Commons and in the House of Lords. In addition the Joint Committee on Human Rights carefully considered whether the amendment to section 64 met the requirements of Article 8(2). The Joint Committee’s Report issued on 23 April 2001 deals with the amended section 64 provisions at paras. 86-92. In that report, the Joint Committee stated that:
“When we first looked at the Bill, we took the view that the clauses [in relation to the retention of fingerprints and samples] amounted to an interference with the person’s right to respect for private life (ECHR 8.1), but that they provided a sound legal basis for retention, by ensuring that the circumstances in which retention and use were to be permitted were sufficiently clearly defined, appropriately directed, and limited in scope, in order to satisfy the justifying conditions under Article 8.2.”
- Mr Gordon strongly contests the correctness of the Joint Committee’s assessment of the amendment but I respectfully agree with the Committee’s approach. I regret to say that I cannot understand Mr Gordon’s submission that no justification has been shown for the amendment. Its purpose is obvious. The purpose is lawful. It is strictly confined to situations in which fingerprints and samples have been taken in accordance with Article 8. The fingerprints and samples can only be used for a purpose of “the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution”. Language which is very similar to that in Article 8(2).
- In addition I regard the retention as being proportionate. By confining the retention to fingerprints and samples which have already lawfully been taken the amended provision limits the Article 8(1) interference significantly. As against that limited intrusion the scale of the database and therefore its value is substantially increased. I find myself in complete agreement with the Divisional Court that the interference with Article 8(1) rights of the individuals from whom the fingerprints and samples are taken is justified by Article 8(2)
- In considering whether the interference with Article 8(1) is justified, it is relevant that if my approach to the Article is correct, in this jurisdiction Article 8(1) may have a longer reach than is strictly required by the ECHR as applied by Strasbourg. If this is the result of the approach of society here then Parliament, as the democratically elected body representative of the public, has undoubtedly the untrammelled right to establish the circumstances in which interference is justified as long as it does not fall below the standard set by the ECHR, proportionality.
- Mr Gordon placed great stress on the principle of proportionality but in this situation where the court is required to balance the interests of the individual as against those of the public, the balancing act itself will usually absorb any issue as to proportionality. Sometimes in relation to proportionality a distinction is drawn between a balancing test and a necessity test. The necessity test meaning that if a particular objective can be attained by more than one available means, the least harmful must be adopted. (See e.g. "The Law of Human Rights" Clayton and Tomlinson paragraphs 6.57/6.59). However, here there were not alternative ways in which the same benefits could be obtained for the public. If there had been then in considering where the balance of advantage lay the alternative methods of achieving the same or a similar benefit for the public would have to be taken into account. Here the question is, are the adverse consequences to the individual out of proportion to the benefit of the public?; if so, there is no defence under Article 8(2). But in my judgment they are not.
THE ARTICLE 14 ISSUE
- There remains a further hurdle, which the amendment to section 64 must overcome. The amendment must not be discriminatory “on any ground” specified in Article 14. The amendment applies to those once suspected of crime that, because they are no longer being proceeded against and have not been convicted, are entitled to be regarded as innocent. In this jurisdiction there cannot be different categories of innocence. The non-proven status is not part of English law.
- Mr Gordon therefore contends that the category of persons who were being investigated for a crime but are no longer the subject of proceedings are being discriminated against when their position is compared with that of members of the public who have not been investigated. Mr Gordon submits, and I accept his submission, that both categories are entitled to be regarded as innocent. He therefore contends it would not be right for the court to draw a distinction between one category of innocent person and another. Any member of the public is entitled to be regarded as innocent until the contrary is proved.
- However, the presumption of innocence does not provide an immunity against being investigated in relation to a criminal offence or against criminal proceedings and the fingerprints and samples were lawfully taken in conjunction with a bona fide investigation. Once the fingerprints and samples are lawfully obtained there is a perfectly clear objective distinction between individuals from whom fingerprints or samples have been taken and those individuals from whom they have not been taken. Without there being any improper discrimination it is proper to treat those who have already given fingerprints or samples differently from those who have not when it comes to the question of the retention of fingerprints or samples. I emphasise that it is this distinction which justifies the different treatment. It would be highly undesirable for members of the public to be treated differently on the basis of some scale of innocence devised by the police.
- In the present circumstances when an offence is being investigated or is the subject of a charge it is accepted that fingerprints and samples may be taken. Where they have not been taken before any question of the retention arises they have to be taken so there would be the additional interference with their rights which the taking involves. As no harmful consequences will flow from the retention unless the fingerprints or sample match those of someone alleged to be responsible for an offence the different treatment is fully justified.
- There is also the question of whether the discrimination relied upon is within the categories of discrimination referred to in Article 14. It is wholly different from the categories specifically mentioned in the Article and I do not consider that it does. It would be highly undesirable if it did. If it did contravene Article 14 the result could be that so as to avoid discrimination the categories from whom fingerprints and samples can be taken and retained would be expanded so far as is necessary to avoid discrimination. An approach which could have this effect instead of increasing the protection of human rights could result in that protection being reduced, if, as could well be the case, a universal requirement to provide fingerprints and samples could not be justified. In my opinion section 64 as amended does not contravene Article 14.
- I do not propose to deal with the Commonwealth authorities relied upon by Mr Gordon because like the Divisional Court I do not regard them as being of assistance. The legislation, which was being considered in those cases, is in different terms. In addition this is an area where under the Human Rights Act the courts are required to exercise considerable deference to Parliament. This does not mean that this Court has not to form its own judgment of the issues, which are raised. It does mean we should not intervene without fully taking into account that the issues are of a category in relation to which Parliament should be recognised as having a special responsibility. A responsibility with which a court should not interfere without clear cause.
THE FOURTH AND FIFTH ISSUES
- In view of the conclusions to which I have already come these issues do not arise for consideration. There remains only for consideration the allegation that the Chief Constable has wrongly exercised his discretion to which I now turn.
THE DISCRETION ISSUE
- Section 64 as amended does not require the Chief Constable to retain any fingerprints or samples, which have been taken. He “may” do so. However, as is the case with any other statutory discretion this discretion has to be exercised to further the purpose for which it was conferred. Here that purpose is the prevention and detection of crime. Without casting any reflection on the individuals from whom the fingerprints or samples have been taken who are not still the subject of investigation or have been acquitted the statutory purpose will normally favour retention of the fingerprints or samples unless there are special circumstances justifying the Chief Constable making an exception.
- Although the Chief Constable failed to make this clear initially, his policy of normally insisting on retention does provide for exceptions to be made, if in any particular case exceptional circumstances are shown to exist. This appears to be a perfectly appropriate policy. It is in accord with the well-known approach in the British Oxygen case  AC 610. eEH H I agree with Mr Bean’s submission on behalf of the Chief Constable that the comments of the Master of the Rolls in R (P) v Secretary of State for the Home Department and another  EWCA 1151 do not affect the conclusions set out above.
- In his judgment, Lord Justice Sedley suggests that the Chief Constable be required to distinguish between different categories of individuals from whom fingerprints or samples have been taken. I do not accept that this is the position. I consider that it would be highly undesirable and inappropriate for Chief Constables to act upon any such distinction.
- The arguments raised by Liberty have been carefully considered in the judgment of Lord Justice Waller and I entirely agree with the views he has expressed. I accept that the information, which can be derived from a sample of DNA, is growing rapidly. So are the purposes for which the information can be used. Information may already and certainly in the future will be capable of being obtained from samples which goes well beyond the prevention and detection of crime as now understood. However, the Chief Constable is not contemplating using samples for purposes other than the prevention and detection of crime in the narrow sense, that is in exactly the same way as fingerprints can be used, for identifying or excluding an individual from responsibility for a crime. In its consideration of a case the ECHR is careful to confine its judgment to the facts of the case which is before it and, in my judgment, we should adopt the same course and not try to anticipate events.
- The police can make mistakes and act unlawfully but it does not seem to me that the risk that this could happen can affect the outcome of this appeal. The court must assume that the police will act lawfully until the contrary is shown. If the developments of science expand the purposes for which DNA can be used then the Chief Constable must use his discretion to ensure that the DNA is not used for any purpose not authorised by Parliament. He has ample discretion not to allow samples to be used for purposes contrary to Article 8 and Article 14. There is no need to read the statutory provisions in a restricted manner. If in the future a question arises as to the lawfulness of the use of samples in a manner that is not now contemplated that will have to be dealt with when the problem arises.
- As indicated at the outset of this judgment there is a difference between the DNA profile and the sample. The retention of the sample as well as the profile can be justified by the need to verify the accuracy of the profile. The retention is also appropriate because the developments in relation to DNA may result in the sample being able to be used more effectively for the prevention and detection of crime (in the sense I have indicated) in the future than is possible today.
- I would dismiss this appeal.
Lord Justice Waller:
- I agree that the appeal should be dismissed for the reasons given by Lord Woolf LCJ. I do not disagree with the views expressed by Sedley LJ save in one important area. I only wish to add some limited comments of my own.
- It is the submissions of Liberty, which have given me most cause for concern. Their submissions convince me that there is a breach of Article 8(1) in the retention and use of samples independent from the original breach of that Article in the taking of the samples in the first place. Furthermore as I understand their submissions they more readily understand the argument that justification is supplied by Article 8(2) if the use to which the samples or DNA profile is put is simply to provide a register or data bank against which some other DNA profile can be checked in the future during the investigation of some other offence. If that is the limit of the use of the same retention does not actually prejudice the individual from whom the sample has been taken at all, and its use will either clear the person of any suspicion of committing a crime (i.e. be a benefit to the individual); or provide clear evidence of criminal conduct. The public interest in the prevention of crime must outweigh such infringement as there is of the private interest at this stage just as the taking of samples during a criminal investigation is itself justified. Indeed I would suggest that what Lord Steyn said in A-G General Reference (No 3 of 1999) quoted by the Lord Chief Justice at paragraph 37 makes the contrary submission impossible. If use of a sample illegally held when permitted in evidence pursuant to the exercise of discretion under Section 78 is “plainly no breach of Article 8”, how can it be a breach to allow the police to retain a sample lawfully if the use is for the “investigation and prosecution of serious crime”?
- Prior to the passing of section 82 of the CJPA, the law was in an unsatisfactory state. Parliament had decreed that lawfully taken samples should be destroyed if persons were acquitted. Yet if such samples were unlawfully retained they could provide cogent evidence relating to the commission of serious crimes. Should Parliament recognise in the public interest that lawfully taken samples should be allowed to be preserved, or should Parliament make unlawfully retained evidence inadmissible with the result that perpetrators of serious offences went free? A full debate took place in Parliament and detailed consideration was given to the Convention. I am fully persuaded that Article 8(2) justified the rationalisation of the law.
- Liberty’s concern is that the words “ purposes related to the prevention or detection of crime” give a very wide discretion. They suggest that this would include intelligence gathering and other forms of collation of detailed personal information, outside the immediate context of the investigation of a particular offence. They recognise that fingerprints and DNA profiles reveal only limited personal information. The physical samples potentially contain very much greater and more personal and detailed information. The anxiety is that science may one day enable analysis of samples to go so far as to obtain information in relation to an individual’s propensity to commit certain crime and be used for that purpose within the language of the present section. It might also be said that the law might be changed in order to allow the samples to be used for purposes other than those identified by the section. It might also be said that while samples are retained there is even now a risk that they will be used in a way that the law does not allow. So, it is said, the aims could be achieved in a less restrictive manner, and Liberty pose the questions: if other jurisdictions fulfil the same aims with greater safeguards e.g. judicial scrutiny of decisions to retain samples, why should not this jurisdiction be able to do the same? Why cannot the aim be achieved by retention of the profiles without retention of the samples?
- The answer to Liberty’s points is as I see it as follows. First the retention of samples permits (a) the checking of the integrity and future utility of the DNA database system; (b) a re-analysis for the up-grading of DNA profiles where new technology can improve the discriminating power of the DNA matching process; (c) re-analysis and thus an ability to extract other DNA markers and thus offer benefits in terms of speed, sensitivity and cost of searches of the data base; (d) further analysis in investigations of alleged miscarriages of justice; and (e) further analysis so as to be able to identify any analytical or process errors. It is these benefits which must be balanced against the risks identified by Liberty. In relation to those risks, the position in any event is first that any change in the law will have to be itself convention compliant; second any change in practice would have to be convention compliant; and third unlawfulness must not be assumed. In my view thus the risks identified are not great, and such as they are they are outweighed by the benefits in achieving the aim of prosecuting and preventing crime.
- The answer to the first question posed by Liberty is first that the fact that other jurisdictions do things differently cannot provide an automatic answer that this jurisdiction must be in breach of the convention, and in any event second, judicial scrutiny of the question of whether retention should be allowed, does not provide an answer to any of the risks identified by Liberty which occur whether judges have scrutinised the question of retention or whether retention is on the basis provided for by the new section.
- The answer to the second question is that retention of the samples is beneficial in all the ways identified, and in particular it ensures the integrity and future utility of the database. The benefits outweigh any risks identified. The law is proportionate to the aim being sought to be achieved. That is so because in the fight against crime, there is the need to be allowed to retain the samples lawfully taken. To keep profiles alone would not be sufficient.
- As regards Article 14, the argument is that the rights under Article 8(1) are being secured for some persons and not for others, and that those others are being selected on the basis of “their status”. The suggestion is that there is a pool of innocent persons, and that amongst that pool of innocent persons are those acquitted. Thus the argument goes the law discriminates against those innocents with the “status” of having been acquitted. Sedley LJ as I understand it accepts that the relevant pool is as above described, but justifies the retention of samples of those people who have been the subject of investigation, on the basis that not all unconvicted people are equal from a policing point of view, and among those who have been charged but not convicted it is especially so. It is this conclusion which leads him to express the view in paragraph 94 when he deals with the question of discretion, that a Chief Constable should destroy data where he is satisfied on conscientious consideration that the individual is free of any taint of suspicion.
- I cannot I am afraid agree with Sedley LJ. In relation to discrimination the argument depends on defining the pool as all innocent i.e.unconvicted people. So far as this change in the law is concerned, this does not seem to me to be an accurate description of the relevant pool. The situation is not one in which the authorities have samples from all innocent people, and are being given the power to retain only those samples from innocent people who have been suspected of offences but acquitted. Indeed to characterise the pool as being all innocent i.e.unconvicted persons, would be quite unfair because there is little doubt that if the authorities had the power to obtain samples from every person innocent or otherwise, they would not contemplate discriminating against any section of that pool. The bigger the data bank the better. The fact that that step has not yet been taken, and the only step being taken is to keep samples lawfully taken, demonstrates to my mind that the relevant pool is that of persons from whom samples have been lawfully taken. Those persons are being treated alike and there is thus in my view no breach of Article 14.
- Furthermore in the context of discretion, to introduce a concept of a Chief Constable having to consider whether a person is free of any taint of suspicion has great difficulties, and as it seems to me is raising a consideration which in fact should not apply at the retention stage. At the retention stage consideration of the circumstances of the offence of which the person has by this stage been acquitted, seem to me almost certainly irrelevant. I accept that if some form of undertaking were given to destroy to induce a person to cooperate in the taking of a sample, that would be relevant, but the circumstances of the offence itself would as I see it not be. Apart from the “undertaking type case”, retention is only relevant to the question whether the details on the data bank will assist in either the elimination or the conviction of a person so far as some future criminal investigation is concerned. If justification for retention is in any degree to be by reference to the view of the police on the degree of innocence, then persons who have been acquitted and have their samples retained can justifiably say this stigmatises or discriminates against me – I am part of a pool of acquitted persons presumed to be innocent, but I am being treated as though I was not. It is not in fact in anyway stigmatising someone who has been acquitted to say simply that samples lawfully obtained are retained as the norm, and it is in the public interest in its fight against crime for the police to have as large a database as possible. I accordingly do not subscribe to the view that the Chief Constable is bound to exercise his discretion in the way suggested by Sedley LJ.
Lord Justice Sedley:
- In my judgment
i) the retention of fingerprints and bodily samples taken from unconvicted persons breaches their right to respect for their private life under Article 8(1);
ii) Article 8(2) affords a primary justification;
iii) the legislative distinction between unconvicted persons who respectively have and have not been in the hands of the police is objectively justified under Articles 8(2) and 14, provided data are destroyed in cases which it turns out should never have been initiated.
- I respectfully agree with Lord Woolf CJ, for the reasons he gives, that while the retention of personal material and data is much less invasive than the taking of them, it nevertheless represents a further and continuing invasion of the right recognised by Article 8(1) to respect for one’s private life. In reaching this view we are fully entitled to take into account the strong cultural unease in the United Kingdom about the official collection and retention of information about individuals.
- The next question is whether retention of fingerprints or of bodily samples which is permitted under section 64 of PACE is justified under Article 8(2). The purposes of retention - the prevention of crime and the protection of the right of others to be free from crime – are foursquare within Article 8(2), and retention is provided for by law.
- The question then is whether retention is necessary in a democratic society: that is to say, whether it is a proportionate interference with the primary right to respect for one’s private life. Here the critical issue is whether the legitimate purposes can be achieved by less drastic means. For reasons I will come to, I believe that the other large issue, the singling out from the whole of the unconvicted population of those who have been suspects, is most appropriately dealt with under Article 14. But it is possible to pose and answer the same questions under Article 8(2). I deal with both later.
- Fingerprints do not differ in principle from photographs. They are a means of recognising somebody. They differ in practice in that they can only be obtained with the consent of the suspect or by force. But once obtained, they are fixed data, and I find little difficulty in holding that their retention meets a legitimate objective in a way which no less invasive technique can do. I will come under the head of discrimination to the question: why only the fingerprints of former suspects?
- Bodily samples are also a source of identifying data. The data themselves have a clear and important role both in tracing the guilty and in clearing the innocent. But samples are capable of affording much more than identifying data: how much more we do not know; neither do legislators or the police, for it lies in the scientific future. This is why I have found Liberty’s written submission of great assistance. It avoids the polar positions adopted, as tends to happen in litigation, by the parties and instead reasons by degrees. The distinction which Liberty draws between DNA profiles and the bodily samples from which the profiles are derived is in my judgment crucial to what we have to decide. So too are the evidence and written argument submitted in response by the Home Secretary after the close of oral argument, pursuant to the court’s direction. But the true parameter of the debate is in my judgment that addressed by Liberty: not what is currently done under section 64 (to which much of the Home Secretary’s evidence goes) but what section 64 permits.
- As fixed data, DNA profiles are not unlike fingerprints, although what they convey is at once more complex and more comprehensive. Neither science is without inherent weaknesses and risks of human error; but these are for exploration and evaluation in the courtroom. Nobody can rationally doubt the potential utility of DNA profiles both in convicting the guilty and in exonerating the innocent.
- DNA samples in themselves have no forensic or diagnostic value. Their value lies in the comparative data they yield, and these can be derived and stored without the need to retain the sample. If the reliability of the profile is challenged at a future date, it will be in the subject’s interests to provide a fresh sample to resolve the dispute. In any event, on any future arrest a fresh bodily sample will be taken (and Dr Bramley’s evidence is that for court purposes and to eliminate profiling error the fresh sample is routinely analysed). This should mean that accidentally transposed profiling, which Dr Bramley candidly admits is a risk, is unable to affect the trial process. So the principal case for retention has to be that science may in the future enable more information to be derived from bodily samples than is possible at present. And this, paradoxically, is also the case against retention.
- The burden necessarily lies on the state to show that retaining lawfully obtained bodily samples (whether of convicted or of unconvicted persons does not matter here), as opposed to the DNA data the samples yield, will meet a pressing social need in a way which does not disproportionately invade the subject’s right to respect for his or her private life. It is the very indeterminacy of the future use of such samples, which may as easily be for ill as for good, which the appellants argue prevents the state from establishing a sufficient justification under Article 8(2) for the particular invasion of personal privacy under Article 8(1).
- This is an issue of great importance, but in my judgment it does not advance either side’s case under Article 8(2). Let us suppose that in 10 years’ time it becomes possible to deduce the propensity of individuals to resort to violence from presently unrecognised elements of their DNA, and that this evidence is made admissible in prosecutions for crimes of violence. The retention of an individual’s bodily sample, if section 64 of PACE is now allowed to stand, will have exposed him or her to the possibility of an invasion of his Article 8(1) rights which falls outside any justification now capable of being advanced. Whether the individual has been convicted or not, the answer has to be either that (as Lord Woolf CJ holds) the residual discretion implicit in the power must be used to maintain Convention-compliance, or (as I would respectfully hold) that the United Kingdom’s legislatures will be required by international obligation to enact Convention-compliant rules – which may include outright prohibition - for new scientific uses of DNA. In this sense, even Parliament’s powers are not untrammelled. Meanwhile it is clear that PACE permits no such use. The only alternative is to assume the very thing that the United Kingdom’s international obligations forbid, a future transgression of the limits of Article 8(2).
- These considerations do much to resolve the issue of proportionality, an issue which, with respect, I do not think can ever be absorbed in a simple balancing exercise as between the individual and the public (an exercise which in a majoritarian democracy the individual will always lose, and which the Convention is there precisely to redress). Nor does the Human Rights Act 1998 permit it to be resolved by simple deference: in my judgment Parliament has spelt out in ss. 3, 4 and 5 of the Act the form and measure of deference which it requires of the courts, and the jurisprudence which s.2 requires us to take into account maintains judicial vigilance without seeking to supplant the democratic process.
- Exercising the judgment which, in my respectful view, Parliament has confided to the courts, I consider that the means made available by section 64 of PACE to meet what is plainly a pressing social need are limited by law to a practical minimum of intrusion upon the respect owed by the state to the private life of those affected. The rule of law means that they will not open a Pandora’s box of unknown uses. The alternative of keeping the profile and destroying the sample is, for the reasons given, neither legally nor factually a significantly less invasive technique.
- This brings me to what I regard as the most difficult question in the case: out of the whole unconvicted population, what can justify the retention of samples (and the data they yield) taken only from those who have been suspected of crime but not convicted? How can it be squared with the presumption of innocence?
- This issue of discrimination arises (a) because there must under Article 8(2) be a rational connection between the measure and the objective, and arbitrary discrimination is not rational or proportionate (see Aston Cantlow Parochial Church Council v Wallbank  3 All ER 393, para. 45); and (b) because Convention rights, by virtue of Article 14, must be enjoyed “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, property, birth or other status”. It seems to me that to have been charged or investigated but not convicted is both as involuntary and as stigmatic a condition as the majority of those listed in Article 14, and that it falls sensibly within the catholic phrase “other status”. But whichever article it is put under, the point is essentially the same.
- It is a necessary part of the answer, but not in my respectful view a sufficient one, that what distinguishes them is the fact that they have already had their fingerprints and bodily samples lawfully taken. What in my judgment makes the justification sufficient is that those who have been accused but discharged are not necessarily on a par with those who have never been accused.
- It is perfectly true that the taking of fingerprints and samples is antecedent to their retention and that its lawfulness, at a time when by definition the suspect is unconvicted, is given and accepted as Convention-compliant. But to make this alone the justification for retention is to assume the very thing which has to be decided, namely whether the grounds for keeping suspects’ fingerprints and samples continue to be valid once they have been cleared.
- The two main grounds for taking fingerprints and bodily samples from persons charged are that they may help in the proof (or disproof) of their involvement in the crime of which they are suspected, and that they may help in the detection of the authorship of other crimes. Once the individual has been discharged, the first of these grounds – save in the rarest cases – is spent. It is the second, the clearing up of other crimes, which gives a ground for retention. But what then is the rational connection between this entirely defensible objective and the use of data only from those of the unconvicted population who have at some time been investigated or faced charges? So long as the unconvicted are all taken to be equally beyond suspicion, the fact that the latter alone have had their fingerprints and samples lawfully taken must be a matter of pure chance and cannot be a legally proper ground of distinction. But is the premise correct?
- In the eye of the law, everybody is innocent save those who have been lawfully convicted. The principle is not mere cant: it is a real and important bulwark of liberty, and nothing which follows is intended to devalue it. But from a policing and law enforcement point of view the unconvicted population is not uniformly beyond suspicion: it cannot be if policing is to function properly, for detection ordinarily begins not with proof but with inquiry. Of those who come lawfully into the hands of the police in the course of investigation but are not convicted, there will inevitably be some who ought never to have been suspected, much less charged; and others who ought without doubt to have been convicted but for one reason or another have not been. Between these poles lies a range of more or less justified suspicion which for one reason or another has not resulted in a conviction. Among the most common of the latter cases are charges of violent offending which cannot be proceeded with because the victim is afraid to testify. Among the most disturbing are rapists who repeatedly secure acquittals, more than one of whom has finally been caught by matching their DNA with data from other, unsolved rapes. A requirement to destroy DNA profiles on acquittal would have made this impossible.
- It is here, if anywhere, that one has to find the justification for retaining the fingerprints only of those unconvicted people who have been the subject of investigation. In my judgment it is there. There is of course nothing which says that those who have never been suspected of anything will not offend, nor that those who have already fallen under justified suspicion but have been acquitted will go on to offend; but the courts know well that among the latter is a significant proportion - markedly higher than in the unconvicted population at large - who will offend in the future. Not all unconvicted people, in other words, are equal from a policing point of view, even though they are from a legal one; and among those who have been charged but not convicted it is especially so.
- Thus it is not right to regard the operation of section 64 as simply a by-product of the misfortune of having been wrongly charged with an offence. The line between those unconvicted people who have faced charges and those who have not, while not a bright line, is not arbitrarily drawn. It does not tarnish the innocence of the unconvicted in the eye of the law. But it recognises that among them is an indeterminate number who are likelier than the rest of the unconvicted population to offend in the future or to be found to have offended in the past. The downside, which is that the same cohort will inevitably include people who never have offended and never will, is in my judgment – given the protective qualification to which I come below - a necessary and reasonable price to pay. It is not a cost which falls directly or perceptibly upon the individuals concerned, and it affords a very important benefit to society.
- This leaves one further argument to be addressed: if the foregoing reasoning is right, why not a comprehensive (and so non-discriminatory) DNA register, since the arguments for it are the same? For reasons powerfully addressed in the judgment of Lord Woolf CJ, I would certainly not assume that a comprehensive national DNA database or samples bank, if one were to be lawfully compiled, would constitute an unacceptable invasion of privacy. It would be for Parliament to decide whether the intrusion and surveillance involved in assembling and maintaining such a resource is an acceptable price to pay for its advantages. Certainly the information available to this court suggests that, subject to these considerations, a universal DNA register would be a real and worthwhile gain in the endeavour to ensure that the guilty, and only the guilty, are convicted of crimes. In other words, whether it is the unconvicted population as a whole whose bodily samples are kept or only that section of it which has faced charges, the justification is the same.
Discrimination: the “pool”
- It will be apparent from the judgment of Waller LJ that, had he adopted my view that section 64 introduced discrimination which needed to be justified, he would not have accepted my methodology of justification. This does not matter to the outcome of the present appeals, on which we agree; but it is capable of mattering a great deal in discrimination law generally, and I wish therefore to explain why I respectfully differ from him.
- There is a logical and consistent concept of indirect discrimination in the statutory formula contained in s.1(1)(b) of the Sex Discrimination Act 1975 and s.1(1)(b) of the Race Relations Act 1976. It reappears, with adaptations, in the Disability Discrimination Act 1995. It was derived from the exegetic concept of indirect discrimination developed by the United States Supreme Court in Griggs v Duke Power Co, 28 L.Ed.2d 158 (1971). It corresponds closely with the jurisprudence of the European Court of Justice (initially in relation to the free movement of goods: Ruhr v ECSC  ECR 011; subsequently across the board in relation to gender equality); with a series of EU Council directives, including the recent Race Directive (2000/78/EC); and with the jurisprudence of the European Court of Human Rights (Belgian Linguistics Case (No.2) (1979-80) 1 EHRR 252). It is therefore of real importance that this court should not adopt a deviant approach.
- Central to indirect discrimination is the ostensibly neutral factor which on analysis significantly and unjustifiably disadvantages a protected group. Griggs v Duke Power Co provides a well-known example: because of educational disadvantage, black workers did significantly worse than white workers in literacy tests which were applied to all employees but were objectively unnecessary. The discriminating factor was not facing the literacy test but failing it. But its differential impact could only be measured in a pool consisting of both white and black workers – that is, both those disadvantaged and those not disadvantaged by it. In the present appeals the discriminating factor is not the fact of having had samples lawfully taken; it is being a person who has had them taken but has not then been convicted. To confine the pool for testing its effect to other people in the identical position, as Waller LJ would do, and to conclude – inexorably – that they are all being treated alike, is the equivalent of confining the pool in the Griggs case to black workers. The correct pool in such a case (that is, the pool which will test the particular complaint) is everybody in the same relevant situation: in the Griggs case, all the company’s workers to whom the test was given; in the present appeals, all citizens who have not been convicted of an offence.
- To take as your pool simply the group which asserts that it is being discriminated against and to find – as you practically always will – that they are all being treated the same is to defeat the rationale of indirect discrimination. To take as your pool a larger group which does not share the relevant characteristic – here, for example, everyone who has had their fingerprints and bodily samples lawfully taken - will be to sidestep the legal issue. The legal issue is not (as in another system it might have been) the absence of discrimination between convicted and acquitted suspects: it is the presence of discrimination between legally innocent people who respectively have and have not been investigated.
- Hence the difference, with very great respect, between my approach and that of Lord Woolf CJ to the question of discrimination. (For a detailed account of the topic, see Deakin and Morris, Labour Law, 3rd ed., 571-4, and the Legal Action Group’s Discrimination Law Handbook, 4th ed, ch.7.) There are without doubt situations in which identifying an appropriate pool becomes complex; but this is not one of them. This is why I do not find it possible simply to accept the lawful initial taking of samples as a sufficient justification of their retention, and why I have found it necessary to examine the justification for the distinction which the statute makes between those within the unconvicted population who have been and who have not been investigated by the police.
- For these reasons, albeit they are not entirely those of the other members of this court or of the Divisional Court, I too would hold that the connection between the retention of the fingerprints and bodily samples of people who have been accused of crime but discharged and the legitimate purpose of combating crime is a rational one; that the relatively modest invasion it involves of their right to respect for their private life is proportionate; and that insofar as the selection of such people from the unconvicted population at large discriminates against them, it is objectively justified.
- But this carries a qualifying corollary: the very reasoning which holds that retention is ordinarily permissible requires careful regard to be had to that margin of cases where suspicion itself turns out to have been unjustified or, though justified, to have been completely refuted. It is here, in my judgment, that the word “may” in section 64 has a precise significance. The power of a Chief Constable to destroy data which he would ordinarily retain must in my judgment be exercised in every case, however rare such cases may be, where he or she is satisfied on conscientious consideration that the individual is free of any taint of suspicion. Such a person in my judgment falls outside the purposes for which retention is justifiable under the Convention, and the court’s obligation under s.3 (1) of the Human Rights Act 1998 to read and give effect to primary legislation compatibly with the Convention rights requires us so to construe s. 64 of PACE. It is also a reading which seems to me to come closest to producing just outcomes in a problematical field.
- Since, however, the other two members of the court take a different view of the residual discretion contained in section 64, the Chief Constable will not be required – as I would have required him – to consider whether either of the two cases before the court falls into the category I have described.
Order: The respondents’ costs of the appeal be paid by the appellant, the appellants’ liability being amend as nil. Detailed assessment of the appellants’ costs. Permission to appeal to the House of Lords refused.
(Order does not form part of the approved judgment)