In JR 27, Re Judicial Review handed down by Northern Ireland's High Court on police data retention, the judicial tension between the approach of UK Courts and the European Court of Human Rights ("the ECtHR") was evident. The case involved the retention of data relating to a 14 year old boy who was arrested but not charged in connection with a burglary offence. His data was due to be held by the police for seven years with possible extension. The data comprised DNA samples, fingerprints and photographic images.
The Court ruled that it was bound by the precedent of a 2004 House of Lords decision S, and Michael Marper, which held that the automatic retention of fingerprints and DNA samples by the police in England and Wales did not interfere with the right to privacy, as guaranteed by Article 8 of the European Convention on Human Rights ("the ECHR") under the UK Human Rights Act. The Court also held that applying domestic precedent, retention of the boy's photographic images did not interfere with Article 8 ECHR. However they added that if they were wrong on that and applying Strasbourg jurisprudence, it would constitute a disproportionate interference with Article 8 ECHR.
When the Marper case reached the ECtHR, the Court found a breach of Article 8 ECHR. They ruled that the "blanket and indiscriminate" data retention amounted to a "disproportionate interference" with the right to respect for private life.
The UK Government has indicated an intention to amend the law as a result of the ECtHR judgment. However, the Commissioner of Police of the Metropolis continues to apply the existing policy on the retention of DNA and fingerprints until such time as the law is changed.
Pressure for such change may soon come from the UK Supreme Court, which has just heard two cases which provide an opportunity to revisit the opinions expressed in the House of Lords case in 2004 regarding the retention of DNA and fingerprints. The two cases are R (GC) v The Commissioner of Police of the Metropolis [UKSC 2010/0173] and R (FC) v Commissioner of Police of the Metropolis [UKSC 2010/0186].
Whilst it is possible that the Supreme Court would follow the 2004 ruling of the House of Lords, in RJM, R (On the Application of) v Secretary of State For Work and Pensions, the House of Lords found that where the Grand Chamber of the ECtHR comes to a conclusion expressly intended to be applied by national courts, it would require "the most exceptional circumstances before any national court should refuse to apply the decision".
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