R (on the application of C) (FC) (Appellant) v Commissioner of Police of the Metropolis (Respondent)
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R (on the application of C) (FC) (Appellant) v Commissioner of Police of the Metropolis (Respondent)
Easter Term [2011] UKSC 21 On appeal from: [2010] ALL ER D 174
JUDGMENT R (on the application of GC) (FC) (Appellant) v The Commissioner of Police of the Metropolis (Respondent) R (on the application of C) (FC) (Appellant) v Commissioner of Police of the Metropolis (Respondent) before Lord Phillips, President Lord Rodger Lady Hale Lord Brown Lord Judge Lord Kerr Lord Dyson JUDGMENT GIVEN ON 18 May 2011 Heard on 31 January and 1 February 2011Appellant (GC) Respondent Stephen Cragg Lord Pannick QC Azeem Suterwalla Jason Beer (Instructed by Fisher Meredith LLP) (Instructed by Metropolitan Police Directorate of Legal Services) Appellant (C) Respondent Michael Fordham QC Lord Pannick QC Dan Squires Jason Beer (Instructed by Public Law Solicitors) (Instructed by Metropolitan Police Directorate of Legal Services) Intervener (Secretary of State for the Home Department) Intervener James Eadie QC Karon Monaghan QC Jonathan Moffett Helen Law (Instructed by Treasury Solicitors) (Instructed by Liberty) Intervener Alex Bailin QC Adam Sandell (Instructed by Equality and Human Rights Commission) MAJORITY JUDGMENTS ON THE APPROPRIATE RELIEF LORD DYSON 1. Biometric data such as DNA samples, DNA profiles and fingerprints is of enormous value in the detection of crime. It sometimes enables the police to solve crimes of considerable antiquity. There can be no doubt that a national database containing the data of the entire population would lead to the conviction of persons who would otherwise escape justice. But such a database would be controversial. It is not permitted by our law. Parliament has, however, allowed the taking and retention of data from certain persons. The questions raised by these appeals are whose data may be retained and for how long. 2. Section 64 of the Police and Criminal Evidence Act 1984 ("PACE"), as originally enacted, provided: "(1) If - (a) fingerprints or samples are taken from a person in connection with the investigation of an offence; and (b) he is cleared of that offence, they must be destroyed as soon as is practicable after the conclusion of the proceedings." (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 be destroyed as soon as they have fulfilled the purpose for which they were taken." 3. Section 64(1A) of PACE was enacted by section 82 of the Criminal Justice and Police Act 2001. It is still in force. It provides: "(1A) Where-(a) fingerprints, impressions of footwear 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, impressions of footwear 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 of the person from whom a body part came." 4. It will be seen at once that section 64(1A) does not specify any time limit for the retention of the data or any procedure to regulate its destruction. These are matters which are addressed in guidelines issued by the Association of Chief Police Officers ("the ACPO guidelines") entitled "Exceptional Case Procedure for Removal of DNA, Fingerprints and PNC Records" and published on 16 March 2006. So far as is material, these provide: "it is important that national consistency is achieved when considering the removal of such records. Chief Officers have the discretion to authorise the deletion of any specific data entry on the [Police National Database] '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 is established beyond doubt that no offence existed, that might, having regard to all the circumstances, be viewed as an exceptional circumstance." 5. In R (S) v Chief Constable of the South Yorkshire Police and R (Marper) v Chief Constable of the South Yorkshire Police [2004] 1 WLR 2196 ("Marper UK") the claimants sought judicial review of the retention by the police of their fingerprints and DNA samples on the grounds inter alia that it was incompatible with article 8 of...See the full content of this document
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