On 13 February 2020 the ECtHR handed down a judgment on the continuing saga on the State’s desire to retain DNA and other personal data on convicted individuals.
Samantha Broadfoot QC provides the background, a summary and her professional opinion regarding this case in the article below.
In Gaughran v. The United Kingdom the Court unanimously ruled that the indefinite retention of biometric data (digital DNA profile, fingerprints) and photographs of persons convicted of an offence punishable by imprisonment was a breach of a person’s right to respect for their private life under Article 8 ECHR. This was because, under the retention scheme, the applicant’s personal data was to be retained indefinitely, even if spent, without reference to the seriousness of the offence or the need for indefinite retention and in the absence of any real possibility of review, failed to strike a fair balance between the competing public and private interests. The scheme was thus a disproportionate interference with the applicant’s right to respect for his private life and could not be regarded as necessary in a democratic society.
Mr Gaughran was arrested in October 2008 for driving with excess alcohol (a ‘recordable offence’ i.e. one punishable by imprisonment). At the police station he was found with 65 milligram of alcohol per 100 millilitres of breath (the limit being 35 milligrams), and the police also took his photograph, fingerprints and a DNA sample. He later pleaded guilty, was given a fine and banned from driving for 12 months.
His conviction was spent in 2013.
His DNA sample was destroyed in 2015. But the Police Service of Northern Ireland retained and intended to retain indefinitely within its record the DNA profile, fingerprints and photographs taken in 2008.
The case made its way through the domestic courts, to the Supreme Court, where Mr Gaughran lost – although with a powerful dissent from Lord Kerr. Mr Gaughran thus complained directly to the ECtHR.
- The regime as a whole must be looked at in assessing whether a State has overstepped the acceptable margin of appreciation: the duration of the retention period on its own is not necessarily conclusive.
- Where a State has put itself at the limit of the margin of appreciation in allocating to itself the most extensive power of indefinite retention, the existence and functioning of certain safeguards becomes decisive.
- Here the regime enabled the State to retain an applicant’s biometric data and photographs without reference to the seriousness of his offence, without regard to any continuing need to retain that data indefinitely, and with a review mechanism which was so narrow as to be almost hypothetical.
- In the circumstances, the regime failed to strike a fair balance between the competing public and private interests.
- Accordingly, the State had overstepped the acceptable margin of appreciation applicable here and the retention at issue 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.
Three main points emerge:
First, the increase in the sophistication of technology means that data may become more sensitive. The Court held, for the first time, that the taking and retention of custody photographs amounts to an interference with Article 8(1) (in the 1970s, 80s and 90s the Commission had held that it did not). This is a new development which was undoubtedly influenced by the advances in technology now available, under which extensive facial recognition and mapping may be applied to such photographs, which can be uploaded and moved to scanning databases if necessary.
Second, there is a difference between fingerprints and photographs on the one hand, and DNA profiles on the other. Again, technology was key to the Court’s reasoning. Familial searching could be carried out on the DNA profiles after the death of the data subject and the ability of DNA profiles to provide a means of identifying a genetic relationship between the data subject and others interfered with the rights of others. However, in my view the bigger point is that familial searching is a serious interference of those people’s rights whether or not the original data subject is still alive and I predict that at some point there will be some litigation about that technique.
Third, the Court rightly called out the logical consequence of the Government’s submission that ‘the more data is retained, the more crime is prevented’ on the basis that in the context of a scheme of indefinite retention, this would “in practice be tantamount to justifying the storage of information on the whole population and their deceased relatives”. Such a scheme, said the Court, would “most definitely be excessive and irrelevant”.
There is an inherent tension between the administrative convenience of bright line rules and the need to cater for individual cases. It may be that a more nuanced bright line retention scheme, would bring the regime within the State’s margin of appreciation, without requiring a burden and detailed system of individualised review.
The scheme in Northern Ireland appears to mirror that which applies in England and Wales under the Protection of Freedoms Act 2012 insofar as biometric data is concerned. It follows that the criticism of the blanket nature of the indefinite retention with the lack of adequate safeguards will require revision to that statute.
Please find the originally post here.