Judgments - Regina v. Chief Constable of South Yorkshire Police (Respondent) ex parte LS (by his mother and litigation friend JB) (FC) (Appellant)
Regina v. Chief Constable of South Yorkshire Police (Respondent) ex parte Marper (FC)(Appellant) Consolidated Appeals
HOUSE OF LORDS
 UKHL 39
on appeal from:  EWCA Civ 1275
 1 WLR 3223
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Regina v. Chief Constable of South Yorkshire Police (Respondent) ex parte LS (by his mother and litigation friend JB) (FC) (Appellant)
Regina v. Chief Constable of South Yorkshire Police (Respondent) ex parte Marper (FC) (Appellant)
THURSDAY 22 JULY 2004
The Appellate Committee comprised:
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. Chief Constable of South Yorkshire Police (Respondent) ex parte LS (by his mother and litigation friend JB) (FC) (Appellant)
Regina v. Chief Constable of South Yorkshire Police (Respondent) ex parte Marper (FC) (Appellant)
 UKHL 39
- It is of paramount importance that law enforcement agencies should take full advantage of the available techniques of modern technology and forensic science. Such real evidence has the inestimable value of cogency and objectivity. It is in large measure not affected by the subjective defects of other testimony. It enables the guilty to be detected and the innocent to be rapidly eliminated from enquiries. Thus in the 1990s closed circuit television (CCTV) became a crime prevention strategy extensively adopted in British cities and towns. The images recorded facilitate the detection of crime and prosecution of offenders. Making due allowance for the possibility of threats to civil liberties, this phenomenon has had beneficial effects.
- The use of fingerprint evidence in this country dates from as long ago as 1902. In due course other advances of forensic science followed. But the dramatic breakthrough was the use of DNA techniques since the 1980s. The benefits to the criminal justice system are enormous. For example, recent Home Office statistics show that while the annual detection rate of domestic burglary is only 14%, when DNA is successfully recovered from a crime scene this rises to 48%. It is, of course, true that such evidence is capable of being misused and that courts must be ever watchful to eliminate risks of human error creeping in. But as a matter of policy it is a high priority that police forces should expand the use of such evidence where possible and practicable.
I. Retention of fingerprints and samples
- It is not in doubt that the taking of fingerprints and samples from persons suspected of having committed relevant offences is a reasonable and proportionate response to the scourge of serious crime. What the present appeals are concerned with is the retention of such material in cases when a suspect is subsequently acquitted or the charge is discontinued. Until the coming into effect on 11 May 2001 of section 82 of the Criminal Justice and Police Act 2001, the retention by the police of such fingerprints and samples was unlawful under section 64 of the Police and Criminal Evidence Act 1984 (PACE). There was public disquiet that this rule sometimes enabled defendants who had in all likelihood committed grave crimes to walk free. Parliament decided to reverse it. Section 64(1A) of PACE, as substituted by section 82 of the 2001 Act, authorises the retention of such fingerprints and samples. It provides:
(a) fingerprints or samples are taken from a person in connection with the investigation of an offence, and
(b) subsection (3) below does not require them to be destroyed,
the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution."
This statutory provision lies at the heart of the present appeals. Its effect is that if a match is made between a fingerprint or a sample found at a crime scene and a fingerprint or sample taken from an individual before he was cleared of an earlier offence, the police will be able to use the underlying information in the investigation of the offence. It can play a significant role in the elimination of the innocent, the correction of miscarriages of justice and the detection of the guilty.
II. The Explanatory Notes
- The mischief against which section 64(1A) is aimed is set out in the Explanatory Notes which, in accordance with the system introduced in 1999, accompanied the Bill in its progress through Parliament. Explanatory Notes are not endorsed by Parliament. On the other hand, in so far as they cast light on the setting of a statute, and the mischief at which it is aimed, they are admissible in aid of construction of the statute. After all, they may potentially contain much more immediate and valuable material than other aids regularly used by the courts, such as Law Commission Reports, Government Committee reports, Green Papers, and so forth. The Explanatory Notes relating to what became the new section 64(1A) read as follows:
"186. An additional measure has been included to allow all lawfully taken fingerprints and DNA samples to be retained and used for the purposes of prevention and detection of crime and the prosecution of offences. This arises from the decisions of the Court of Appeal (Criminal Division) in R v Weir [26 May 2000, unreported] and R v D (Attorney General's reference No. 3/1999) May 2000, [ 2 AC 91]. These raised the issue of whether the law relating to the retention and use of DNA samples on acquittal should be changed. In these two cases compelling DNA evidence that linked one suspect to a rape and the other to a murder could not be used and neither could be convicted. This was because at the time the matches were made both defendants had either been acquitted or a decision made not to proceed with the offences for which the DNA profiles were taken. Currently section 64 of PACE specifies that where a person is not prosecuted or is acquitted of the offences the sample must be destroyed and the information derived from it can not be used. The subsequent decision of the House of Lords overturned the ruling of the Court of Appeal. The House of Lords ruled that where a DNA sample fell to be destroyed but had not been, although section 64 of PACE prohibited its use in the investigation of any other offence, it did not make evidence obtained as a failure to comply with that prohibition inadmissible, but left it to the discretion of the trial judge. The Bill removes the requirement of destruction and provides that fingerprints and samples lawfully taken on suspicion of involvement in an offence or under the Terrorism Act  can be used in the investigation of other offences. This new measure will bring the provisions of PACE for dealing with fingerprints and DNA evidence in line with other forms of evidence."
The light cast on the interpretation of section 64(1A) by the notes is limited but it does show exactly what problem Parliament was addressing.
- The reference in the Explanatory Notes to fingerprints is readily intelligible. But it is necessary to make clear what DNA evidence is. The Forensic Science Service on its website under the legend "What is DNA?" give a simple and useful explanation. So far as material it reads as follows:
"DNA stands for Deoxyribonucleic Acid.
DNA is the chemical which is found in virtually every cell in the body and which carries genetic information from one generation to the next. The genetic information carried in DNA is in the form of a code or language which, when translated, determines our physical characteristics and directs all the chemical processes in the body.
Except for identical twins, each person's DNA is unique. Half of the DNA is inherited from our father and the other half from our mother.
DNA can be extracted from any cells that contain a structure called the nucleus. This includes blood, semen, saliva or hair samples."
To this general description it is necessary to add that in the present appeal a distinction has been drawn between DNA samples and DNA profiles derived from the samples. Dr. Bramley, Chief Scientist of the Forensic Science Service and Custodian of the National DNA Database, explained in a witness statement (para 10.2):
". . . The samples consist of what is taken by the police under PACE, and any sub-samples or part samples retained from these after analysis. The DNA profiles are digitised information and it is this digitised information that is stored electronically on the National DNA Database together with details of the person to whom it relates."
III. The Questions
- The principal question before the House concerns the compatibility of section 64(1A) with the European Convention on Human Rights as scheduled to the Human Rights Act 1998, and in particular with the Convention rights contained in articles 8 and 14. Respectively these articles provide as follows:
"Article 8: Right To Respect For Private 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 is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 14: 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."
In addition there is a separate question whether the policy of the Chief Constable to retain, save in exceptional circumstances, fingerprints and samples of acquitted individuals in all cases is lawful and compatible with the fundamental rights of individuals.
IV. The value of such real evidence
- The value of retained fingerprints and samples taken from suspects who were subsequently acquitted is considerable. This is graphically illustrated by a real case which has been referred to as "I". In 1999 a rape and robbery took place. The perpetrator was not know to the victim. DNA was recovered from the semen on the victim. A search of the national database showed that the DNA matched that of "I". The sample should have been destroyed. It was not. Following the decision of the House of Lords in Attorney-General's Reference (No. 3 of 1999)  2 AC 91 the prosecution went ahead. "I" pleaded guilty to rape and was sentenced to a term of seven years (subsequently reduced on appeal to six years) in a young offenders institution. But for the wrongly retained sample the offender might have escaped detention, possibly to commit other serious crimes.
- This is one concrete illustration of the value of such evidence. It is part of a broader picture. DNA can be detected from very small samples (such as might be found on the saliva on a cigarette end). The power of this technique to eliminate those suspected or to incriminate others is enormous. The Court of Appeal had before it statistical evidence from Dr. Bramley, which demonstrated the value of such evidence. In a witness statement of 16 July 2002 he said [para 9]:
"Matches with profiles retained under the new provisions of the Criminal Justice and Police Act 2001.
To date, approximately 1,700 offences have been detected involving over 1,000 offenders that might have otherwise gone undetected using profiles that would previously have been removed from the Database prior to implementation of the Criminal Justice and Police Act 2001. These include 5 murders, 9 attempted murders, 23 rapes, 6 other sexual offences, 15 aggravated burglaries, 14 the supply of controlled drugs and a number of serious assaults"
Two years later Dr. Bramley updated the statistics. The effect is summarised in the printed Case of the Home Secretary:
"As at 31 March 2004, the total number of DNA profiles on the DNA database which relates to entries where the parent PNC records has been deleted is 162,433. It is estimated that approximately 86% of the PNC record deletions are attributable to subsequent acquittals. Allowing for an 8% replication rate among acquittals (for example, reflecting dual entries through use of aliases etc), it is estimated that there are approximately 128,517 DNA profiles on the DNA database which would previously have been required to be deleted. From these, approximately 5,922 DNA profiles have linked with crime scene stain profiles in respect of 6,280 offences. These offences include 53 murders, 33 attempted murders, 94 rapes, 38 sexual offences, 63 aggravated burglaries and 56 offences of the supply of controlled drugs."
The Home Office statistics show that there is a 40% chance that a crime scene sample will be matched immediately with an individual's profile on the database. These statistics show that fingerprints and samples, which may under section 64(1A) be retained, have in the last three years played a major role in the detection and prosecution of serious crime.
- This is the context in which the questions before the House must be considered.
V. The two cases before the House
- There are two appeals before the House. Neither appeal involves an unusual set of facts. They can be regarded as appropriate test cases to consider the questions of law involved.
The case of "S"
- When he was arrested on 19 January 2001 "S" was an 11 year old boy. He has no previous convictions, cautions or warnings. He was charged with the offence of attempted robbery. Fingerprints and samples were taken from him. Following a trial on 14 June 2001, "S" was acquitted of the charge. On 18 July 2001, the Principal Fingerprint Officer of South Yorkshire Police wrote 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."
Then followed further correspondence between the solicitors for "S" and the South Yorkshire Police in which the solicitors demanded the destruction of the fingerprints and samples of "S" and the police refused to do so. It is unnecessary to summarise the rival legal contentions of the parties. On 12 October 2001, "S" sought judicial review of the decision of the police. The standard Form N461 summarised the relief sought as follows:
"(1) Quashing order to quash the policy to retain fingerprints and samples in all cases.
(2) A declaration that the [Chief Constable] has acted in a manner incompatible with ["S's"] Convention rights pursuant to Article 8 and Article 14 of the ECHR.
(3) A mandatory order to enforce the destruction of ["S's"] fingerprints and samples.
(4) A declaration that section 64 of PACE (as amended) is incompatible with Article 8 and Article 14 of the ECHR to the extent that it permits the retention of fingerprints and samples of persons with no criminal record."
- On 13 March 2001, Mr Marper (who was then 38 years of age and of good character) was arrested and charged with harassment of his partner. The police took his fingerprints and samples. When he appeared in court he pleaded not guilty. The court adjourned his case for a pre-trial review. By the time of that hearing, his partner had become reconciled with him and decided not to press the charge. On 11 June 2001, the Crown Prosecution Service wrote to his solicitors enclosing a notice of discontinuance. On 14 June the case was formally discontinued by the Magistrates' Court.
- There was correspondence between the solicitors for Mr Marper and the South Yorkshire Police in which the former demanded destruction of his fingerprints and samples and the police refused to do so. Again the rival legal contentions need not be set out. On 12 December 2001, Mr Marper applied for judicial review of the decision of the Police. The application was based on the same legal grounds as those advanced by "S".
VI. The Divisional Court
- The applications for judicial review came before the Divisional Court (Lord Justice Rose (the Vice-President of the Court of Appeal Criminal Division) and Leveson J). The judgment was given by Leveson J with the agreement of Rose LJ. The court held that the retention of the fingerprints and DNA samples of individuals who had not been convicted of a criminal offence did not contravene either the individual's right to a private life under article 8 or his right not to discriminated against under article 14. The court also rejected a challenge to the discretion exercised by the Chief Constable under section 64(1A) in relation to the retention of fingerprints and other samples: R (S) v Chief Constable of South Yorkshire Police and the Secretary of State for the Home Department and R (Marper) v Chief Constable of South Yorkshire Police and the Secretary of State for the Home Department  EWHC 478 (Admin).
VII. The appeal to the Court of Appeal
- The shape of the case changed before the Court of Appeal. Liberty was given permission to intervene. In particular Liberty emphasised in para 3.4.3 of their intervention:
"In contrast to fingerprints and DNA profiles, the physical samples which are retained and used under PACE (swabs etc.) and from which DNA is taken, potentially contain very much greater, more personal and detained information about an individual. This may include highly private matters such [as] information about a latent genetic illness, or the birth gender of a transsexual person. It may even reveal behavioural tendencies, or important information about the individual that he does not even know about himself such as the true nature of his familial relationships."
Liberty contended that "the range of genetic information that may be derived from DNA samples is of a highly private nature": para 1.3(1). In short Liberty argued that the samples provided more information about the person who provided the samples than is needed for the identification of those involved in crime. Faced with these new issues, which the Secretary of State and the Chief Constable had no opportunity at the oral hearing to deal with, the Court of Appeal gave them leave to produce further evidence and to make further written submissions. That was done. The most important document placed before the Court of Appeal after the oral hearing was the affidavit of Dr. Bramley to which some reference has already been made.
- Addressing the issues, as amplified by Liberty's intervention, the Court of Appeal by a majority (Lord Woolf CJ and Waller LJ) upheld for somewhat different reasons the decision of the Divisional Court: Regina (S) v Chief Constable of the South Yorkshire Police; Regina (Marper) v Chief Constable of South Yorkshire Police  1 WLR 3223. In a dissenting judgment Sedley LJ concluded that the Chief Constable was required to consider whether in each particular case the individual concerned is free of any taint of suspicion.
VIII. The issues before the House
- The agreed Statement of Facts and Issues summarises the issues before the House as follows:
(1) whether the retention of fingerprints, samples and DNA profiles is an interference with the appellants' right to respect for private life pursuant to article 8(1) of the ECHR and, if so, whether it can be justified under article 8(2);
(2) whether a distinction should be made between the retention of DNA profiles and samples;
(3) whether the retention of the appellants' fingerprints, samples and DNA profiles amounts to discrimination against them for the purposes of article 14 of the ECHR and, if so, whether it is objectively justified;
(4) if the retention of fingerprints and DNA profiles and/or samples is an unjustified interference with the appellants' Convention rights, whether it would be possible to give section 64(1A) a Convention-compatible interpretation under section 3 of the 1998 Act;
(5) if that is impossible, whether section 64(1A) should be declared to be incompatible with article 8 and/or 14 of the ECHR;
(6) whether the policy of the Chief Constable to retain samples and fingerprints in all cases subject to exceptional circumstances is unlawful and incompatible with the appellants' Convention rights.
These issues must primarily be considered in the light of the competing arguments of the parties. But the contentions of Liberty are also important. Although the Appellate Committee was willing to allow Liberty to intervene in writing and orally, that did not happen. The House has, however, considered in detail the written intervention of Liberty in the Court of Appeal as well as a petition by Liberty to the House of Lords to intervene which was subsequently withdrawn.
- A procedural issue arose at the oral hearing of the appeals in the House. Counsel for the appellants applied for leave to introduce a letter dated 11 June 2004 from the Information Commissioner to Liberty about the National DNA Database as well as associated materials. The Information Commissioner is not a party to the proceedings and, although aware of the proceedings, did not seek leave to intervene. Not surprisingly, the Home Secretary and the Chief Constable strongly objected to the admission of this material. In my view this eleventh hour attempt to introduce new material must be strongly deprecated and by itself this factor is sufficient reason to refuse the application. In the result the House looked at the material de bene esse. In my view the material does not assist in the disposal of the issues. I would reject the application.
IX. The Legislative Scheme
- Before it will be possible to examine the issues directly it is necessary to explain the legislative scheme in some detail. Inherent in the PACE regime are three different concepts, viz the taking of fingerprints and samples, the retention of them, and the use of them.
- The powers to take fingerprints and samples are to be found in PACE. Since fingerprints and samples were taken from the appellants in early 2001 those powers have in various respects been enlarged by statutory amendment but these changes are not material to the issues to be considered. PACE deals with fingerprints and samples separately. Sections 27 and 61 contain the main powers to take fingerprints in carefully regulated circumstances involving, amongst other things, a reasonable suspicion that a person has committed a criminal offence. The main power to take samples was to be found in section 63. It covers the case where a person was charged with a recordable offence.
- It is true that the taking of fingerprints and samples involves an interference with the individual's private life within the meaning of article 8(1) of the ECHR. On the other hand, such interference for the very limited statutory purposes is plainly objectively justified under article 8(2).
- The terms of section 64(1A) have already been quoted. In order to place it in context, I set it out again:
"(1A) Where -
(a) fingerprints or samples are taken from a person in connection with the investigation of an offence, and
(b) subsection (3) below does not require them to be destroyed,
the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution."
Section 64(1B) extends by definition the use for the purposes of section 64(1A) of checks of fingerprints and samples. It is also necessary to refer to the following subsections of section 64:
"(3) If -
"(a) fingerprints or samples are taken from a person in connection with the investigation of an offence; and
(b) that person is not suspected of having committed the offence,
they must, except as provided in the following provisions of this section, be destroyed as soon as they have fulfilled the purpose for which they were taken.
(3AA) Samples and fingerprints are not required to be destroyed under subsection (3) above if -
(a) they were taken for the purposes of the investigation of an offence of which a person has been convicted; and
(b) a sample or, as the case may be, fingerprint was also taken from the convicted person for the purposes of that investigation.
(3AB) Subject to subsection (3AC) below, where a person is entitled under subsection (3) above to the destruction of any fingerprint or sample taken from him (or would be but for subsection (3AA) above), neither the fingerprint nor the sample, nor any information derived from the sample, shall be used -
(a) in evidence against the person who is or would be entitled to the destruction of that fingerprint or sample; or
(b) for the purposes of the investigation of any offence;
and subsection (1B) above applies for the purposes of this subsection as it applies for the purposes of subsection (1A) above.
(3AC) Where a person from whom a fingerprint or sample has been taken consents in writing to its retention -
(a) that sample need not be destroyed under subsection (3) above;
(b) subsection (3AB) above shall not restrict the use that may be made of the fingerprint or sample or, in the case of a sample, of any information derived from it; and
(c) that consent shall be treated as comprising a consent for the purposes of section 63A(1C) above;
and a consent given for the purposes of this subsection shall not be capable of being withdrawn.
(3AD) For the purposes of subsection (3AC) above it shall be immaterial whether the consent is given at, before or after the time when the entitlement to the destruction of the fingerprint or sample arises."
Subsection 63(3AC) is of particular interest in so far as it may have to be accommodated in the submissions on behalf of the appellants.
- Counsel for the Home Secretary accepted that it is possible to conceive of uses which might theoretically be capable of amounting to an interference with respect for private life under article 8(1). He gave the example that where samples were used to extract personal genetic information about an individual and that information was used in a way linked to that individual it might represent an interference with the right to respect for private life. Subject to such unusual cases, the use of retained fingerprints and samples in the context of the detection and prosecution of crime should cause no problem of principle.
- Under this heading it is also important to bear in mind the decision of the House in Attorney-General's Reference (No. 3 of 1999). It was decided under the old section 64 and in respect of a sample which should undoubtedly have been destroyed. The House held that (91F):
". . . whereas section 64(3B)(a) of PACE made express prohibition against the use in evidence of a DNA sample which should have been destroyed, section 64(3B)(b), in prohibiting the use of an unlawfully retained sample for the purposes of any investigation, did not amount to a mandatory exclusion of evidence obtained as a result of a failure to comply with that prohibition but, read with section 78 of PACE, left the question of its admissibility to the discretion of the trial judge; that a decision by a judge in the exercise of his discretion to admit such evidence would not amount to an unlawful interference with the defendant's right to private life under article 8 of the ECHR…"
The House was influenced by the broad policy consideration that (118D) -
". . . 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."
This approach may be of continuing relevance.
X. Issue (1): Article 8
Does retention interfere with the right under article 8(1)?
- There is no decision of the European Court of Human Rights on the question whether the retention of fingerprints or samples amounts to an interference with the right to respect for private life. On the other hand, the European Commission of Human Rights has considered the point. In McVeigh, O'Neill and Evans v United Kingdom (1981) 25 DR 15 the Commission distinguished between the taking of fingerprints, photographs and records, and their retention (paras 223-226). About retention the Commission stated (at para 227):
". . . that it is open to question whether the retention of fingerprints, photographs and records of such information amounts to an interference with the applicants' right to respect for private life under Article 8(1) of the Convention."
McVeigh involved charges of terrorism but the same reasoning may be applicable to other serious crimes. Subsequently, in the context of photographs and fingerprints retained in connection with a charge of fraud the Commission concluded that there was not an interference with respect for private life under article 8: Kinnunen v Finland (Application No. 24950/94) (unreported), 15 May 1996.
- These decisions are relevant but far from conclusive. In the Divisional Court Leveson J was content simply to record that he was "far from convinced that the retention of photographs and DNA samples engage article 8 in any form": para 21. A different approach prevailed in the Court of Appeal. The court held that article 8(1) applied to the retention. Lord Woolf CJ found the solution in the different cultural traditions of member states. He said (para 32, at 3233 G):
". . . 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."
He explained (at para 34, 3234 E-G):
"34. . . . while not substantial, the interference is still real. There is 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 Convention, 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 Convention. 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, 152 that: 'The obligation to carry an identity card and to show it to the police whenever 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.'"
Waller LJ said that Liberty's intervention persuaded him that there was a breach of article 8(1) in the retention and use of the samples: para 58, at 3240E. Sedley LJ agreed with the observations of Lord Woolf LJ on the application of article 8(1). He added that "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": para 68, at 3243D. Counsel for the appellants relied on these observations in the Court of Appeal. It is necessary to examine them.
- While I would not wish to subscribe to all the generalisations in the Court of Appeal about cultural traditions in the United Kingdom, in comparison with other European states, I do accept that when one moves on to consider the question of objective justification under article 8(2) the cultural traditions in the United Kingdom are material. With great respect to Lord Woolf CJ the same is not true under article 8(1). Expressing the unanimous view of the House in R (Ullah) v Special Adjudicator; Do v Immigration Appeal Tribunal  UKHL 26;  3 WLR 23 Lord Bingham of Cornhill observed that the ECHR is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court: para 20. He added (at para 20):
". . . It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less."
The question whether the retention of fingerprints and samples engages article 8(1) should receive a uniform interpretation throughout member states, unaffected by different cultural traditions. And the current Strasbourg view, as reflected in decisions of the Commission, ought to be taken into account.
- That brings me to the concerns of Liberty. They centre on the retention of DNA samples. To the extent that Liberty expresses fears about the misuse of retained samples, Dr. Bramley has shown the extent of the rigorous safeguards in place (para 12.1-12.5). In any event, the trial process ought to weed out such abuses. Liberty's fears of what may happen in the future in the light of the expanding frontiers of science is not relevant in respect of contemporary use of retained samples in connection with the detection and prosecution of crime. If future scientific developments require it, judicial decisions can be made, when the need occurs, to ensure compatibility with the ECHR.
- In the Divisional Court Leveson J helpfully explained why the retention of DNA samples does not have an impact on the private lives of individuals. He said:
"19. 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."
Since the hearing in the Divisional Court, Dr. Bramley has provided detailed and powerful support for this view. Dr. Bramley explained that:
(1) the scientific testing of the sample which leads to the generation of a DNA profile is based upon analysis of the non-coding region of DNA (namely STRs): paras 3.2, 3.3 and 4.1;
(2) the STR analysis performed to create a DNA profile does not generally permit extraction of potential medical information about an individual: para 4.2;
(3) although other genetic information from samples could be obtained in theory (such as medical information), the use of samples obtained and retained under PACE is limited to purposes related to the prevention or detection of crime: para 11;
(4) As explained by Dr. Bramley (para 11.3):
"The use to which the retained scrapes can be put is restricted by the legislation which permits their retention only for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution. This is not interpreted so widely as to allow general testing of the retained CJ scrapes for medical conditions or susceptibilities and linking the results to a specific known individual."
- Counsel for the appellants then approached the matter from a different angle. He emphasised that the use of retained fingerprints and samples under section 64(1A) extends to "purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution." He argued that the words "for purposes related to" are capable of permitting uses other than for the investigation, detection or prosecution of crime. The text shows that the words "for purposes relating to" apply to each of the three specified uses: i.e.
(a) for purposes related to the prevention or detection of crime;
(b) for purposes related to the investigation of an offence;
(c) for purposes related to the conduct of a prosecution.
And the context shows that the words "for purposes related to" fulfil a meaningful role. These words permit use of fingerprints and samples for exculpation of a potential suspect, or use of fingerprints and samples on a criminal appeal or for investigation of a miscarriage of justice. Such permitted uses might otherwise be said to have been excluded if a very restrictive definition of "conduct of prosecution" or "investigation of an offence" were to be adopted. In these circumstances, and bearing in mind the interpretive obligation in section 3 of the 1998 Act, the fears of counsel for the appellants are not justified. In so far as it may be necessary section 64(1A) will be given a Convention-compatible meaning under section 3 of the 1998 Act.
- Looking at the matter in the round I incline 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.
If the retention of DNA profiles, samples and fingerprints is a breach of article 8(1), is it justified under article 8(2)?
- This issue does not arise if the conclusion is correct that article 8(1) is not engaged. I will consider it, however, on the hypothesis that there is some interference with private life, albeit rather modest.
- The effect of the decision of the House in Attorney-General's Reference (No. 3 of 1999), in conjunction with section 64 of PACE in unamended form, left the law in a distinctly unsatisfactory state. There was an obligation to destroy fingerprints and samples in respect of persons who were acquitted. Nevertheless, if such material was unlawfully retained, it could be used for the purpose of investigating another offence, and the evidence could be used in a subsequent trial unless it was excluded at the judge's discretion. This distinction did not reflect well on the law. Parliament could have reversed Attorney-General's Reference (No. 3 of 1999). Instead, adopting the underlying philosophy of the House in that decision, Parliament decided to provide for the retention of fingerprints and samples. This legislative choice must be approached with due deference to a policy decision made by Parliament.
- The appellants argued that an interference with article 8(1) cannot be justified under article 8(2). The Divisional Court dismissed this argument. The Court of Appeal unanimously rejected an appeal on this part of the case.
- In the House counsel for the appellants renewed the submissions -
(1) that retention is not "in accordance with law"; and
(2) that the power of retention is disproportionate.
- The first contention can be dealt with briefly. Counsel cited Silver v The United Kingdom (1983) 5 EHRR 347, at 372, para 88) for the proposition that "a law which confers a decision must indicate the scope of that discretion." Standing alone this is an impractical and unworkable prescription. But the ECtHR added (para 88):
". . . the Court has already recognised the impossibility of attaining absolute certainty in the framing of laws and the risk that the search for certainty may entail excessive rigidity . . . [T]he Court points out once more that 'many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice."
The discretion involved in the power to retain fingerprints and samples makes allowance for exceptional circumstances, e.g. where an undertaking to destroy the fingerprints or sample was given or where they should not have been taken in the first place, as revealed by subsequent malicious prosecution proceedings. Sometimes an obviously unmeritorious point does not require elaborate examination. In agreement with his colleagues Sedley LJ dealt with the argument as follows (para 69):
"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 four-square within article (8(2), and retention is provided for by law."
I respectfully agree.
- The second contention is based on the principle of proportionality. Counsel for the appellants argued that the retention of fingerprints and DNA samples creates suspicion in respect of persons who have been acquitted. Counsel for the Home Secretary said that this argument focuses on the wrong target. The retention of fingerprints and DNA samples is not aimed at the past. Its purpose is to assist in the investigation of offences in the future. The retention and use of fingerprints and samples in this way does not affect the appellants unless they are implicated in a future crime, by a DNA sample found at the scene. It is only if and when there are two profiles which match each other that the database will generate a bull's eye.
- The following propositions seem to be established: (i) the fingerprints and samples are kept only for the limited purpose of the detection, investigation, and prosecution of crime; (ii) the fingerprints and samples are not of any use without a comparator fingerprint or sample from the crime scene; (iii) the fingerprints and samples will not be made public; (iv) a person is not identifiable to the untutored eye simply from the profile on the database, any interference represented by the retention being minimal; (v) and, on the other hand, the resultant expansion of the database by the retention confers enormous advantages in the fight against serious crime. Cumulatively these factors suggest that the retention of fingerprints and samples is not disproportionate in effect.
- Counsel for the appellants submitted that the legislative aim could be achieved by less intrusive means. It became clear that this contention would require a case by case consideration of the circumstances of alleged offences of which the individual has been acquitted. Counsel was able to rely on the conclusion of Sedley LJ. He said (para 94, at 3249):
". . . 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."
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 any event, Waller LJ pointed out (para 66, at 3242):
". . . 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 seems to me almost certainly irrelevant. I accept that if some form of undertaking were given to destroy to induce a person to co-operate 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 databank 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 any way 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."
These observations were made in the context of the issue of discretion but are apposite to the question whether there are less intrusive but realistic means available to achieve the legislative purpose. In my view the answer is that there are not.
- I would, therefore, hold that if article 8(1) is engaged, there is plainly an objective justification under article 8(2).
XI. Issue (2): Distinction between the retention of DNA profiles and samples.
- It will be apparent from my examination and discussion of the undoubted distinction between DNA profiles and samples that, for the reasons already given, the legal consequences are not as contended for by counsel for the appellants and Liberty. It is unnecessary to traverse the same ground again.
XII. Issue (3): Does the retention of fingerprints and samples amount to discrimination under article 14 and, if so, can it be objectively justified?
- Based on the approach of Brooke LJ in Wandsworth London Borough Council v Michalak  1 WLR 617, 625, para 20, as amplified in R (Carson) v Secretary of State for Work and Pensions  EWHC 978 (Admin), para 52 and  EWCA Civ 797,  3 All ER 577, five questions can be posed as a framework for considering the question of discrimination:
(1) Do the facts fall within the ambit of one or more of the Convention rights?
(2) Was there a difference in treatment in respect of that right between the complainant and others put forward for comparison?
(3) If so, was the difference in treatment on one or more of the proscribed grounds under article 14?
(4) Were those others in an analogous situation?
(5) Was the difference in treatment objectively justifiable in the sense that it had a legitimate aim and bore a reasonable relationship of proportionality to that aim?
- But a caveat must be mentioned. In Ghaidan v Godin-Mendoza  UKHL 30;  3 WLR 113 Baroness Hale of Richmond explained (para 134, p 157):
". . . the Michalak questions are a useful tool of analysis but there is a considerable overlap between them: in particular between whether the situations to be compared were truly analogous, whether the difference in treatment was based on a proscribed ground and whether it had an objective justification. If the situations were not truly analogous it may be easier to conclude that the difference was based on something other than a proscribed ground. The reasons why their situations are analogous but their treatment different will be relevant to whether the treatment is objectively justified. A rigidly formulaic approach is to be avoided."
That is how I will approach the matter.
Question 1: A Convention right
- There is no free-standing right under article 14 against discrimination. 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. I will assume, however, that the retention of fingerprints and samples does amount to an interference under article 8(1), albeit a justified interference under article 8(2). On this supposition the first Michalak question must be answered in the affirmative.
Question 2: Less favourable treatment
- The appellants' chosen comparators are the general body of persons who have not had fingerprints and samples taken by the police in the course of a criminal investigation. There is different treatment between those comparators and the appellants in relation to section 64(1A) of PACE.
Question 3: A proscribed ground?
- This question is important because if the different treatment is not on a relevant ground for the purposes of article 14, then this article is not applicable. In any event, identification of the ground for different treatment is material to the question of justification.
- The different treatment afforded to the appellants and comparators was on the ground that the former had already provided samples and fingerprints to the police in a criminal investigation while the comparators had never been required to do so.
- The list of grounds in article 14 is not exhaustive, and necessarily includes each of the specifically proscribed grounds as well as "other status". The ECtHR has interpreted "other status" as meaning a personal characteristic: Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, para 56. I do not understand the Lord Chief Justice to have expressed a different view in para 47 of his judgment. On the other hand, the proscribed grounds in article 14 cannot be unlimited, otherwise the wording of article 14 referring to "other status" beyond the well-established proscribed grounds, including things such as sex, race or colour, would be unnecessary. It would then preclude discrimination on any ground. That is plainly not the meaning of article 14.
- It is, therefore, necessary to examine whether the ground for different treatment in this case amounts to a status in the sense of a personal characteristic within the meaning of article 14.
- There is a difference in treatment between those who have had to provide fingerprints and samples pursuant to a criminal investigation as compared with the rest of the public who have not. But that difference is not necessarily on grounds of "status". Counsel for the Chief Constable and counsel for the Home Secretary submitted that it is a difference simply reflecting historical fact, namely that the authorities already hold the fingerprints and samples of the individuals concerned which were lawfully taken. Counsel for the Chief Constable illustrated the point with an analogy. He asked the House to imagine that Mr Marper had been involved in an accident and admitted to hospital. In routine fashion notes would have been made, tests done and x-rays taken. A subsequent request by his solicitors to destroy the materials would have been refused by the hospital. First, it is good practice to keep them. Secondly, medical negligence is a growing area of litigation and prudence requires records to be kept. Had Mr Marper then sought a judicial review of this decision, an article 8 challenge would have failed and an article 14 challenge would have met the answer that the existence of the records is not a matter of status. It is an historical fact that is unrelated to any personal characteristic. I find the analogy, and the argument which it supports, persuasive. This is, however, not the only possible explanation. In the Court of Appeal Sedley LJ observed (para 86, at 3247C):
". . . 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"
This view was adopted by counsel on behalf of the Chief Constable but not by counsel on behalf of the Home Secretary. Given my acceptance of the rationale put forward jointly by the Chief Constable and the Home Secretary it is not necessary to rule on the observation of Sedley LJ
- By way of summary the position is as follows. The difference in treatment is not analogous to any of the expressly proscribed grounds such as sex, race, gender or religion. The fact that the police are now in possession of fingerprints and samples which were previously lawfully acquired as a result of a criminal investigation does not give rise to a "status" within the meaning of article 14. The appellants, and other individuals in their position, are as fully entitled to the presumption of innocence as the general body of citizens.
- I would accept the analysis of counsel that the difference in treatment of the appellants and those who have not been investigated and provided fingerprints is not a proscribed ground under article 14.
Question 4: Analogous situation?
- For reasons already given there is a material distinction between individuals who have had their fingerprints and samples lawfully taken in consequence of being charged with a recordable offence and those who have not. It cannot be said that the circumstances are so similar as to call for a positive justification of the difference in treatment. I have taken into account the analogy of indirect discrimination advanced by Sedley LJ: para 89-92. In my view we are dealing with an allegation of direct discrimination apparent on the face of the legislation. The analogy is not apposite. Within the Michalak framework the pool of comparators has been wrongfully identified by the appellants. It follows that I would answer the question by concluding that the appellants and the suggested comparators are not in an analogous situation.
Question 5: Objective justification
- If, contrary to my view, it is necessary to consider the justification for the difference in treatment, I would conclude without hesitation that objective justification is established. First, the element of legitimate aim is plainly present inasmuch as the increase in the database of fingerprints and samples promotes the public interest by the detection and prosecution of serious crime and by exculpating the innocent. This conclusion is powerfully reinforced by the recent statistics which I have cited in paragraph 8 of this opinion.
- Secondly, in my view, the requirement of proportionality is satisfied. Section 64(1A) objectively represents a measured and proportionate response to the legislative aim of dealing with serious crime. Moreover, this conclusion is supported by the need, in the circumstances, to approach with due deference the policy decision made by Parliament in enacting section 64(1A) in the fight against serious crime. And the results of the new scheme provide cogent vindication of the decision of Parliament.
Conclusion on article 14
- I would hold that there is no breach of article 14.
XIII. Issues (4) and (5)
- Given these conclusions, Issue 4 (interpretation under section 3 of the 1998 Act) and Issue 5 (incompatibility under section 4 of the 1998 Act) fall away.
XIV. Issue (6): Discretion
- The nature of the policy adopted by the Chief Constable of South Yorkshire Police and other Chief Constables is plain. It is to retain, save in exceptional cases, all fingerprints and samples taken from those who have been acquitted of criminal offences or against whom proceedings have not been pursued. The aim of the policy is directed to the prevention or detection of crime, the investigation of offences, the facilitation of prosecutions, and the speedy exculpation of the innocent as well as the correction of miscarriages of justice.
- Counsel for the appellants argued that this "blanket policy" is unlawful. He submitted that the policy is a fetter on the discretion of the Chief Constable. He said that retaining fingerprints in the case of persons untainted by suspicion is disproportionate. Counsel argued that the only fair solution is a case by case examination of the circumstances of each case. That, of course, would mean an examination of the circumstances which led to the fingerprints and samples being taken in respect of the alleged offence of which the individual was subsequently cleared. He accepted that this would involve the examination of many thousands of cases and involve large numbers of decisionmakers.
- As I pointed out in paragraph 39 of this opinion such a system would probably not confer the benefits of a greatly extended database and would involve the police in interminable and invidious disputes (with individual decisions subject to judicial review) about the circumstances of offences of which individuals had been cleared. Moreover, in such a decision-making process individuals who are not eliminated as being without a taint of suspicion could truly complain that they have been deprived of the benefit of the presumption of innocence. This suggested alternative is unrealistic and impractical.
- I would, therefore, reject the challenge to the policy. It is lawful.
- I would dismiss the appeals.
LORD RODGER OF EARLSFERRY
- I have had the advantage of reading the speech of my noble and learned friend, Lord Steyn, in draft. I agree with it and, for the reasons he gives, I too would dismiss the appeals.
- In particular, it respectfully appears to me that the Court of Appeal attached too much weight to what they saw as a greater cultural resistance in Britain than in other European countries to the collection and retention of data about individuals. For one thing, I am doubtful whether the reaction of the educated public at the time to novels published many years ago can be taken as an accurate reflection of British public opinion in the very different conditions of today. Recent press reaction to the failure of police and other bodies to store information about those suspected of sexual offences might well point to a rather different attitude. And it may well be that, with their bitter experience of life under totalitarian regimes, people in some other European countries would nowadays be more concerned than people here about official files on individuals.
- In any event the attitude in Britain alone cannot be decisive. At most, it would be a basis on which Parliament might have chosen to enact legislation to prevent the storing of information about suspects or on which the courts might have developed the common law so as to provide such protection. But, in fact, by enacting section 82 of the Criminal Justice and Police Act 2001, Parliament has removed the provision which previously made it unlawful to retain the fingerprints and samples of those who were subsequently not charged or who were acquitted. And that must be regarded as the most recent expression of public policy on this topic in England and Wales. (In Scotland no such change has been made so far.)
- In these circumstances the appellants seek to rely on the article 8(1) Convention right which they enjoy under the Human Rights Act 1998. That is a right under domestic law, but a right of a special kind which was, in the words of Lord Nicholls of Birkenhead in In re McKerr  UKHL 12;  1 WLR 807, 815E, para 25, "created by the 1998 Act by reference to the Convention". So, in order to interpret article 8 and the other Convention rights in schedule 1 to the 1998 Act, courts must have regard to the scope of the equivalent rights in the Convention. For that reason, while the decisions of the European Court of Human Rights on the interpretation of the Convention are not binding, they provide authoritative guidance which courts have to take into account when interpreting the rights in domestic law. In formulating its decisions the Court considers the spectrum of attitudes across the contracting states in order to determine the contemporary content of rights under the Convention. It is the decisions reached in this way that help to shape the content of the Convention rights in our domestic law. I refer to the observations of Lord Bingham of Cornhill in R (Ullah) v Special Adjudicator  3 WLR 23, 39-40, para 20. So far at least, as Lord Steyn has shown, the Strasbourg case law does not support the appellants' argument that there has been a violation of article 8 in the circumstances of these cases.
BARONESS HALE OF RICHMOND
- Sadly, while I agree with everything else in the opinion of my noble and learned friend, Lord Steyn, I cannot agree with the view, to which he is inclined, that the retention and storage of fingerprints, DNA profiles and samples is not an interference with the appellants' rights under article 8(1).
- I agree that it is necessary to distinguish between the taking of fingerprints and samples, the deriving of information from those samples, the storage of samples and information, and the use of either samples or information for some particular purpose. The justifications for each of these may be very different. But all of them, in my view, constitute an interference by the state in a person's right to respect for his private life. This is an aspect of what has been called informational privacy.
"This notion of privacy derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit." (per La Forest J in R v Dyment (1988) 45 CCC (3d) 244, at 255-256)
- In the powerful words of the Canadian Privacy Commissioner in his report on Genetic Testing and Privacy (1995, at p 2):
"The measure of our privacy is the degree of control we exercise over what others know about us. No one, of course, has absolute control. As social animals, few would want total privacy. However, we are all entitled to expect enough control over what is known about us to live with dignity and to be free to experience our individuality. Our fundamental rights and freedoms - of thought, belief, expression and association - depend in part upon a meaningful measure of individual privacy. Unless we each retain the power to decide who should know our political allegiances, our sexual preferences, our confidences, our fears and aspirations, then the very basis of a civilised, free and democratic society could be undermined."
- It could be said that the samples are not 'information' (see, for example, the doubts expressed about this by the Australian Law Reform Commission in Essentially Yours: The Protection of human Genetic Information, Report 96, at para 8.8). But the only reason that they are taken or kept is for the information which they contain. They are not kept for their intrinsic value as mouth swabs, hairs or whatever. They are kept because they contain the individual's unique genetic code within them. They are kept as information about that person and nothing else. Fingerprints and profiles are undoubtedly information. The same privacy principles should apply to all three.
- It can also be said that not all information about a person is so private that it enjoys the protection of article 8. This is so. There must be a reasonable expectation of privacy before it is protected (see Campbell v MGN Ltd  UKHL 22;  2 WLR 1232). But there can be little, if anything, more private to the individual than the knowledge of his genetic make-up. Again in the words of the Canadian Privacy Commissioner:
"No surveillance technology is more threatening to privacy than that designed to unlock the information contained in human genes."
- Hence it is common ground that the taking of fingerprints and DNA samples is an interference with the article 8(1) right, even though the invasion of bodily integrity involved is minimal. It is also common ground that the use of the information derived from them is such an interference. This must be because the information is regarded as intrinsically private.
- If the taking and use of the information is an interference, it is difficult to see why the retention, storage or keeping of that information is not also an interference. Storing information almost inevitably involves someone else knowing it. It is an interference with privacy for someone to know or have access to private information even if they make no other use of it. The mere fact that someone has read my private correspondence or seen my bank accounts is an interference with my privacy even if that person tells no one else what he has seen. That is why access to private information such as that contained in medical records has to be carefully controlled. The fact that only a few people can understand the information does not affect the principle, although it may affect the justification.
- Nor can it be irrelevant that storing this information is a necessary prelude to using it. Some uses, in particular those for which the information in this case is permitted to be used, are entirely justifiable and beneficial. But others may not be. To return to the Canadian Privacy Commissioner:
"Modern explorers have set sail on voyages into the genetic microcosm, seeking a medically powerful but potentially dangerous treasure: information about how our genes make us tick. Today, we can ask who among us is likely to have healthy babies or fall ill with a genetic disease. In the future, we may be able to use genetic testing to tell us who will be smart, be anti-social, work hard, be athletic or conform to prevailing standards of beauty."
- No one is thinking of using the samples collected here for such purposes. But the fact that they could be so used, perhaps many years in the future, means that the appellants have a very real interest in how they are stored and who has access to them while they are stored. I do not believe that this interest is peculiar to the cultural traditions of this country. There is ample evidence of concern about them elsewhere in the world. Our data protection laws were originally the product of a Council of Europe Convention in 1981.
- The general tenor of the jurisprudence of the European Court and Commission of Human Rights is that the retention, keeping or storage of private information by state institutions is an interference with article 8(1) rights. In Leander v Sweden (1987) 9 EHRR 433, at para 48, the European Court held that both the storage of private information in a secret police register and its release, coupled with a refusal to allow an opportunity to refute it, were an interference with the right to respect for private life. In Friedl v Austria (1995) 21 EHRR 83, paras 48-53, the Commission distinguished between the taking and keeping of photographs without identifying the subjects, and police questioning in order to establish identity and the recording of these personal data; the former was not an interference with article 8(1) but the latter was, although it was 'relatively slight' (para 66). The Commission reached a different conclusion about photographs and fingerprints kept after the applicant's acquittal in Kinnunen v Finland, app no 24950/94, 15 May 1996; but they noted that the information had been properly taken on his arrest, did not contain any surveillance or similar information or opinions which he might wish to refute, and therefore "was not of such a character that it could have adversely affected the applicant any more significantly than the publicly known fact that he had been charged with, but acquitted of, certain charges." The Commission was therefore concentrating on the nature of the information and the ways in which it could adversely affect the applicant. Even then it may have been somewhat optimistic. But this case is not limited to fingerprints. For the reasons given earlier, the DNA information in this case is of a very different 'character' even if the present uses to which it can lawfully be put are the same.
- If keeping and storing this information by the state were not an interference with the right guaranteed by article 8(1), the consequences would be surprising. First, it would not be necessary to find any justification for it under article 8(2). Of course, mere keeping of the information is a lesser interference than using it, and may be easier to justify. But it would be surprising if the state were free to do this without demonstrating a legitimate aim and that it was necessary to keep the information in this way in pursuit of that aim. Secondly, if article 8(1) is not engaged by the mere keeping of private information, then the state might be free to be thoroughly discriminatory in choosing which information to keep, without contravening article 14. It would be surprising if a decision to keep all the information obtained from, say, black suspects but not from whites did not contravene article 14. But unless the keeping falls within the ambit of article 8 it would not do so.
- I accept that we must interpret the Convention rights in a way which keeps pace with rather than leaps ahead of the Strasbourg jurisprudence as it evolves over time. But it would be surprising if Strasbourg were not to consider it incumbent upon the state to justify its retention and storage of all this information but particularly the DNA samples and profiles. For the reasons given by my noble and learned friends, Lord Steyn and Lord Brown of Eaton-under-Heywood, I agree that this is readily done. The whole community, as well as the individuals whose samples are collected, benefits from there being as large a database as it is possible to have. The present system is designed to allow the collection of as many samples as possible and to retain as much as possible of what it has. The benefit to the aims of accurate and efficient law enforcement is thereby enhanced.
- I therefore agree that these appeals should be dismissed.
- I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Steyn, and I fully agree with his reasons and his conclusions. I only wish to add a short comment about one aspect of the judgments in the Court of Appeal which requires mention, since I feel that it might be misunderstood and applied incorrectly in future cases.
- In paragraphs 88 and 89 of his judgment Sedley LJ addressed the issue of selecting the pool of comparators in determining whether there had been discrimination. He expressed the view that the approach of the other members of the Court of Appeal to identifying the pool overlooked the importance of the principles to be applied in deciding if there had been indirect discrimination. He went on in paragraphs 90 and 91:
"90. Central to indirect discrimination is the ostensibly neutral factor which on analysis significantly and unjustifiably disadvantages a protected group. Griggs v Duke Power Co 401 US 424 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.
91. 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."
- The logic of the reasoning adopted by Sedley LJ is valid in cases of indirect discrimination. In such cases, as he points out, it is necessary to include in the pool both those disadvantaged by the ostensibly neutral factor and those not so disadvantaged. If both classes are not included, then the ostensibly neutral factor which operates differently in respect of each group cannot operate to demonstrate the existence of a difference in result which amounts to discrimination. As Sedley LJ said, to do so defeats the rationale of indirect discrimination.
- The reasoning must, however, be confined to cases of indirect discrimination. In those of direct discrimination the comparison is simply one of comparing the situation of the complainant, and possibly others in like case, with other people in a comparable situation. The imperative created by the need to consider the ostensibly neutral factor does not apply in such a case. The present cases should in my opinion be classed as claims in respect of direct discrimination, for there is no ostensibly neutral factor which turns an apparent equality of treatment into an inequality. The identification of the group making up the pool and the comparison of the situation of each appellant and other persons in like case with that of the other members of the pool is more straightforward. I do not agree that the comparison should be between legally innocent people who respectively have and have not been investigated, as Sedley LJ suggests. Rather I consider, in agreement with Waller LJ, that the relevant pool consists of those persons from whom samples have been lawfully taken. Neither of the appellants was treated any differently from the other persons in that pool and accordingly there is no breach of article 14 of the Convention.
- I agree that the appeals should be dismissed.
LORD BROWN OF EATON-UNDER-HEYWOOD
- I have had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn. I agree with all that he says on each of the issues raised and I wish to add only a few short paragraphs of my own. My concern is simply to indicate how very clear a case this seems to me to be. Indeed my only real problem now, following full investigation of the case with the assistance not only of the parties but from Liberty too, is in discerning any coherent basis on which the challenge can still be sustained.
- Given the carefully defined and limited use to which the DNA database is permitted to be put—essentially the detection and prosecution of crime—I find it difficult to understand why anyone should object to the retention of their profile (and sample) on the database once it has lawfully been placed there. The only logical basis I can think of for such an objection is that it will serve to increase the risk of the person's detection in the event of his offending in future. But that could hardly be a legitimate objection, nor, indeed, is it advanced as such. Such objections as were suggested, however, seem to be entirely chimerical. First, the fear of an Orwellian future in which retained samples will be re-analysed by a mischievous State in the light of scientific advances and the results improperly used against the person's interest. If, of course, this were a valid objection it would apply no less to samples taken from the convicted as from the unconvicted and logically, therefore, it would involve the destruction of everyone's samples. But no such abuse is presently threatened and if and when it comes to be then will be the time to address it. Sufficient unto the day is the evil thereof.
- The second suggested objection is to the retention of profiles obtained from those at one time reasonably suspected of crime but subsequently acquitted or not proceeded against, the objection being that they are thereby stigmatised as properly belonging to the same group as the convicted. This to my mind is an equally unrealistic objection. Mr Gordon QC was quite unable to suggest in whose eyes they would be stigmatised. It should not be forgotten that the profiles of pure volunteers (those falling within section 64(3AC) of PACE) are also retained on the database.
- In short, it seems to me that the benefits of the larger database brought about by the now impugned amendment to PACE (as described in Lord Steyn's judgment) are so manifest and the objections to it so threadbare that the cause of human rights generally (including the better protection of society against the scourge of crime which dreadfully afflicts the lives of so many of its victims) would inevitably be better served by the database's expansion than by its proposed contraction. The more complete the database, the better the chance of detecting criminals, both those guilty of crimes past and those whose crimes are yet to be committed. The better chance too of deterring from future crime those whose profiles are already on the database. And these, of course, are not the only benefits. The larger the database, the less call there will be to round up the usual suspects. Instead, those amongst the usual suspects who are innocent will at once be exonerated. Were these appellants to succeed in their challenge, the cause of justice would be seriously impeded.
- I too would dismiss these appeals.