European Court of Human Rights rules UK police’s data retention policy violates right to privacy

The European Court of Human Rights has said that the UK’s policy on data retention in the criminal justice system violates the right to privacy.

The applicant in this case, Mr Gaughran, was stopped at a police checkpoint in Co. Armagh and arrested on suspicion of drink driving. He was subsequently taken to a local police station where he was breathalysed, photographed and his fingerprints were taken. He pleaded guilty to the offence of driving with excess alcohol and was fined £50 and disqualified from driving for 12 months. The offence became spent after 5 years. Driving with excess alcohol is a recordable offence, meaning that it can be punishable by imprisonment.

It is the current policy of the Police Service of Northern Ireland (PSNI) to indefinitely retain the personal data of those who have been convicted of recordable offences. This personal data includes the individual’s DNA profile, fingerprints and photographs.

Before the High Court of Northern Ireland, the applicant claimed that this policy amounted to a disproportionate interference with the right to respect for private life under Article 8 of the European Convention on Human Rights (ECHR) and could not be justified. The Court held that the retention of the applicant’s biometric data interfered with his rights under Article 8(1) but could be justified under Article 8(2) because the data “provided a useful and proven resource in the battle against crime” and its use was severely restricted by legislation. The Supreme Court agreed that the retention of the applicant’s data was proportionate as the benefit to the public outweighed any infringement of the applicant’s rights. The Court distinguished the case from an earlier case with similar facts (S and Marper v UK) on the grounds that it had dealt with data retention after acquittal.

When the case came before the European Court of Human Rights, it followed the decision of S and Marper and said that the retention of fingerprints, photos and DNA interfered with the applicant’s private life but that this interference was prescribed by law and pursued a legitimate aim. In examining whether the interference was necessary in a democratic society, the Court acknowledged that the UK had a margin of appreciation. In considering how wide or narrow this margin should be, it looked at European consensus and judicial scrutiny.

The Court analysed the systems of various member states and discovered that, while several countries retained data until death, the UK was one of the few to permit indefinite retention of data of convicted persons. The UK government argued that there was no difference between the two positions because it made no difference to the person involved. The Court disagreed and said that DNA profiles allow genetic relationships to be identified and that this could impact a person’s private life, even after death. The Court concluded that this meant the UK was only afforded a narrow margin of appreciation on the issue.

In addition, the UK argued that the Supreme Court had already reviewed this issue and it was not for the Strasbourg court to substitute its own assessment of the merits of the case. The Court held that there had been significant technological developments since the S and Marper judgment. For example, photographs can now be used for facial recognition software. The UK courts had also been mistaken in saying that very few states have a process of review of their data retention policy, which is not the case. The Court also noted that the distinction between indefinite retention and retention until death had not been made by the UK courts. Thus, the judicial scrutiny at domestic level was not sufficient to afford the UK a wide margin of appreciation.

The Court also said that indefinite retention of data was the “most extensive power available” and needed safeguards in order to be considered proportionate and within the margin of appreciation. It went on to say that there was a lack of safeguards in this case as there was little opportunity for an individual to review their case and that biometric data was retained without reference to the seriousness of the offence.

The Court concluded that the UK government’s policy was disproportionate and violated Article 8 ECHR.

Click here to read the full judgment



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