The European Court of Human Rights court held in Gaughran v United Kingdom [2020] ECHR 144 that the police’s indefinite retention of DNA profile, fingerprints and photographs of person convicted of a minor offence without a possibility of review constituted an infringement of Article 8 ECHR (respect for private life). This is the latest in a number of cases where the ECtHR has disagreed with a decision of the Supreme Court and represents a further development of the meaning of “private life”.

A British national brought a claim on 20 October 2015 against the United Kingdom of Great Britain and Northern Ireland because the Police Service of Northern Ireland (the “PSNI”) retained fingerprints, a photograph and a DNA profile of a non-intimate DNA sample taken by buccal swab after he was arrested for a recordable offence (i.e. an offence punishable by imprisonment) of driving with excess alcohol contrary to the Road Traffic (Northern Ireland) Order 1995 in October 2008. The applicant pleaded guilty at a first appearance in November 2008 and was fined £50 and disqualified from driving for 12 months. No immediate or suspended custodial sentence was imposed on him. The conviction became spent in November 2013. 

Soon after the conviction his solicitor had written to the Police Service of Northern Ireland (the “PSNI”) claiming that the retention of the applicant’s photograph, fingerprint and DNA sample was unlawful. He requested that they be destroyed or returned to the applicant. The PSNI replied on 27 February 2009 saying that the legal consequence of the decision of the ECtHR in Marper v United Kingdom [2008] ECHR 1581; (2009) 48 EHRR 50 ECHR 2008 was a matter for the United Kingdom Government and refused to destroy the information.

The applicant challenged the decision and his claim was heard by the Supreme Court in May 2015, where he was unsuccessful. The Supreme Court considered the question: “Is the policy of the Police Service of Northern Ireland to retain indefinitely the DNA profile, fingerprints and photographs of a person convicted of a recordable offence in breach of article 8 of the ECHR?", and held that the indefinite retention of his data was proportionate: Gaughran v Chief Constable of PSNI [2016] AC 345; [2015] UKSC 29. The court considered the earlier ECtHR decision of Marper, which had held that indefinite retention of such material of those acquitted of criminal charges breached article 8, - but declined to follow it, holding that this did not apply to those who had been convicted as in the instant case. 

The applicant pursued his challenge further to the ECtHR and maintained that, regardless of acquittal or conviction, the indefinite retention of his DNA profile, fingerprints and photograph in accordance with the blanket policy of retention of personal data of any individual convicted of a recordable offence amounted to a disproportionate interference with the right to respect for his private and family life and was unjustified.

The ECtHR agreed with the Applicant, followed its earlier decision in Marper and held that the indiscriminate nature of the powers of retention which led to the DNA profile, fingerprints and photograph of the Applicant being held indefinitely failed to strike a fair balance between the competing public and private interests. Before doing so, it quoted five paragraphs from the Supreme Court judgment in which Lord Kerr dissented from the majority, holding that article 8 required a “more nuanced... sensibly targeted policy... to reflect the seriousness of the offence involved [and] contribute to the goal of ensuring that the interference was no more intrusive than it required...” and that there had been no evidence that consideration had been given to the question of whether indefinite retention was necessary for the effective or combatting of crime”. 

The Court considered that the retention of biometric data and photographs pursues the legitimate purpose of the detection and prevention of crime and that the taking of such information pursues the aim of linking a particular person to the particular crime of which he or she is suspected and its retention pursues the broader purpose of assisting in the identification of persons who may offend in the future. 

However, following the reasoning set out in Marper and by Lord Kerr, the ECtHR found the retention of such information relating to a person convicted of an offence, which was spent, without reference to the seriousness of the offence or the need for indefinite retention and in the absence of any real possibility of or mechanism for review was incompatible with Article 8 ECHR. It noted that there was “no provision” allowing the applicant to have the data deleted if conserving it no longer appeared necessary in view of the nature of the offence, his age or the time that had elapsed. Such review as did exist was “so narrow as to be almost hypothetical”. Accordingly, the court found the although the State retained a slightly wider margin of appreciation in respect of the retention of fingerprints and photographs however, that widened margin was not sufficient for it to conclude that the retention of such data was proportionate in the applicant’s particular circumstances, which included the lack of any relevant safeguards including the absence of any real review.

In those circumstances, the Court found that the United Kingdom had overstepped the acceptable margin of appreciation and the retention of the information constituted a disproportionate interference with the applicant’s right to respect for private life and could not be regarded as necessary in a democratic society. There had been a violation of Article 8 of the Convention. Interestingly, given that much of the Supreme Court decision focussed on whether the retention was in accordance with the law, with much consideration of the role of published guidance and policy, the ECtHR passed over this without much comment, holding that it was “not necessary” to decide this.