The Supreme Court has ruled that the indefinite retention of the DNA profile, fingerprints and photographs of a person convicted of a recordable offence is compatible with Article 8 (right to respect for private life) of the European Convention on Human Rights.
Fergus Gaughran was arrested on the morning of October 14th, 2008, for driving with excess alcohol. Mr. Gaughran later pleaded guilty to the offence at Newry Magistrates Court. He was fined and disqualified from driving for twelve months.
On the day of the arrest, the police took Mr Gaughran's fingerprints, photographs and "non-intimate" DNA sample with his full consent.
In January 2009, Mr. Gaughran's solicitor wrote to the Police Service claiming that the retention of the DNA profile, fingerprints and photograph is unlawful. The Police Service replied in February, 2009, stating that the consequences of S and Marper -v- United Kingdom judgment was a matter for the government of the United Kingdom. However following the devolution of policing in 2010, the DNA retention policy became an issue for the Northern Ireland Minister for Justice.
Mr. Gaughran was granted leave to apply for judicial review in April 2009. The case was heard by Lord Justice Girvan in the High Court, which held that the infringement of Article 8 by the Police Service was justified.
The question before the Supreme Court was whether the policy of the Police Service to retain indefinitely the DNA profile, fingerprints and photographs of a person convicted of a recordable offence is a breach of the right to respect for private life.
The lack of reference to the DNA sample in the question is because legislation is due to come into force in Northern Ireland that means DNA samples must be destroyed within six months of being taken.
The onus in this case was on the Police Service to satisfy the Court that its policy is consistent with the law, justifiable, and satisfies the principle of proportionality.
Lord Clarke agreed with Lord Justice Girvan that S and Marper only considered the position of those suspected of a crime:
There is no indication that the Strasbourg court was considering the position of those who had been convicted at all. I agree with [Lord Justice] Girvan's conclusion at para 42 that Strasbourg was not saying that a blanket policy of retaining the data of convicted persons would be unlawful.On the policy of the Police Service indefinitely retaining biometric data, Lord Clarke found that there was no jurisprudence to support that it was not justified.
Lord Clarke concluded that the balance struck between the competing public and private interests by authorities in Northern Ireland, and England and Wales, is proportionate and justified:
Taking account of all relevant factors I would hold that the balance struck by the Northern Irish authorities, and indeed in England and Wales, is proportionate and justified.Moreover, Lord Clarke concluded that the benefits of retaining DNA profiles of a person who are convicted outweighs the right to respect for private life under Article 8.
Lord Kerr, however, in his dissenting opinion, concluded that the indefinite retention of DNA profiles, fingerprints and photographs of a person convicted of recordable offences in Northern Ireland is incompatible with the right to respect for private life.
