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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> GC & C v Commissioner of Police of the Metropolis  EWHC 2225 (Admin) (16 July 2010)
Cite as:  ACD 91,  ALL ER D 174,  EWHC 2225 (Admin),  HRLR 34
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QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
MR JUSTICE WYN WILLIAMS
|GC & C||Claimant|
|COMMISSIONER OF POLICE OF THE METROPOLIS||Defendant|
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr J Beer (instructed by DWF LLP) appeared on behalf of the Defendant
Mr J Strachan appeared on behalf of the Interested Party
Crown Copyright ©
"Where fingerprints or samples taken from a person in connection with the investigation of an offence and (b) subsection (3) below does not require them to be destroyed, the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence, the conduct of a prosecution or the identification of a deceased person or the person from whom a body part came."
"In subsection (1)(a) above (a) the reference to using a fingerprint includes a reference to allowing any check made against it under section 63(1)(a) or (1)(c) above and to disclosing it to any person (b) the reference to using a sample includes a reference to allowing any check to be made under section 63(a)(1) or (1)(c) above against it, or against information derived from it and to disclosing it or any such information to any person."
"Chief Officers have the discretion to authorise the deletion of any specific data entry on the PNC owned by them. They are also responsible for the authorisation of the destruction of DNA and fingerprints associated with that specific entry. It is suggested that this discretion should only be exercised in exceptional cases ... Exceptional cases will by definition be rare. They might include cases where the original arrest or sampling was found to be unlawful. Additionally, where it has established beyond doubt that no offence existed, that might, having regard to all the circumstances, be reviewed as an exceptional circumstance."
The guidelines make a reference to such exceptional circumstances by giving an illustration of a dead body discovered, where murder is originally suspected and it is subsequently found that the person died from natural causes.
"It is therefore vitally important that any applications for removals of records should be considered against current legislation and the retention guidelines exceptional case procedure."
"Looking at the matter in the round I am inclined to the view that in respect of retained fingerprints and samples article 8(1) is not engaged. If I am wrong in this view, I would say any interference is very modest indeed."
It is suggested by the claimants that those are not words of conclusion. But, in my view, it is clear from Lord Steyn's reasoning, and what he said at paragraphs 32 and 44 that it was his conclusion that Article 8(1) did not apply. That was the conclusion of the majority. At paragraph 44, Lord Steyn said that, in relation to the question as to whether there was any discrimination contrary to Article 14 of the Convention:
"In this case the question is whether the facts fall within the ambit of article 8. If my conclusion is right that article 8(1) is not engaged, it follows that article 14 is not triggered."
In any event it is clear that the House of Lords were unanimous in concluding that any interference was justified for the purposes of Article 8(2). It was in accordance with the law and was proportionate. In particular the House of Lords rejected the suggestion that the only fair process compatible with Article 8 was a case by case examination of the circumstances. At paragraph 39, Lord Steyn said:
"In my view this would not confer the benefits of a greatly extended database and would involve the police in interminable and invidious disputes (subject to judicial review of individual decisions) about offences of which the individual had been acquitted."
"In this respect, the Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales. 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 or 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 (see paragraph 35 above)[that is an open to the ACPO guidelines]; 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."
"44. There is a more fundamental reason for adhering to our domestic rule. The effective implementation of the Convention depends on constructive collaboration between the Strasbourg court and the national courts of member states. The Strasbourg court authoritatively expounds the interpretation of the rights embodied in the Convention and its protocols, as it must if the Convention is to be uniformly understood by all member states. But in its decisions on particular cases the Strasbourg court accords a margin of appreciation, often generous, to the decisions of national authorities and attaches much importance to the peculiar facts of the case. Thus it is for national authorities, including national courts particularly, to decide in the first instance how the principles expounded in Strasbourg should be applied in the special context of national legislation, law, practice and social and other conditions. It is by the decisions of national courts that the domestic standard must be initially set, and to those decisions the ordinary rules of precedent should apply."
"In cases of that kind where the police or other public authority are acting just as the public would expect them to act, it would ordinarily no doubt be artificial and unreal for the courts to find the prima facie breach of Article 8 and call on the State to justify the action taken by reference to Article 8(2)"
Dyson LJ agreed with the Laws LJ's analysis of the application of Article 8 at paragraph 64. Dyson LJ and Collins LJ differed from Laws LJ as to the justification for the taking of the photographs and concluded that there was no justification for taking them and retaining them for the limited period in which they were to be retained. It is to be emphasised that in Wood the photographs were not retained on any database. Wood is no authority for the proposition that Article 8 applies, where photographs were taken on arrest. It powerfully suggests that it does not.