UK: The policy of indefinite retention of DNA profile, fingerprints and photographs of a person convicted of a recordable offence is compatible with the right to respect for private life under the European Convention on Human Rights

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.

UK: Local authorities have a statutory duty to provide accommodation in the area in so far as reasonably practicable

The Supreme Court has ruled that local authorities have a statutory duty to provide accommodation in "so far as reasonably practicable" under section 208(1) of the Housing Act 1996.

The case was taken by Titina Nzolameso, a single mother of five children. Ms. Nzolameso has long standing health problems including HIV. The introduction of a cap on Local Housing Allowance in 2012 resulted in her family's eviction from a privately rented four bedroom house in November 2012.

Following the family's eviction, Ms. Nzolameso applied to Westminster City Council under the homelessness provision of the 1996 Act. The family were temporarily housed in a hotel in the Royal Borough of Kensington and Chelsea on a bed and breakfast basis.

On January 24th, 2013, the Council offered Ms. Nzolameso temporary accommodation in Bletchley, near Milton Keynes, due to "a severe shortage of accommodation in Westminster".

When Ms. Nzolameso rejected the offer, the Council issued a letter headed "Notice that our housing duty has come to an end" under section 193(5) of the 1996 Act. Ms. Nzolameso appealed, however the appeal to the reviewing decisions officer was rejected. This was followed by unsuccessful appeals to the London Central County Court in October 2013, and the Court of Appeal in October 2014. After being refused judicial review of the County Court ruling, the Council stopped providing temporary accommodation. Subsequently, Ms. Nzolameso, after the Children's Services Department refused to accommodate the whole family, asked the Department to provide the children with accommodation.

In a unanimous Supreme Court judgment, Lady Hale found that:

There is little to suggest that serious consideration was given to the authorities obligations before the decision was taken to offer the property in Bletchley. At that stage, the temporary lettings team knew little more than what was on the homelessness application form. This did not ask any questions aimed at assessing how practicable it would be for the family to move out of the area. Nor were any inquires made to see whether school places would be available in Bletchley and what [Ms. Nzolameso's] particular medical conditions required.

Therefore, Lady Hale concluded, the Council still owed Ms. Nzolameso a duty to secure accommodation.

Lady Hale also set out guidelines. The first guideline provides that every local authority have "a policy for proving sufficient units of temporary accommodation" to meet the anticipated annual demand. The second guideline provides that every local authority have a policy for the allocation of those units to individual homeless households. Moreover, where a shortage is anticipated in Borough Units, the policy should outline the factors taken into account in offering units close to home, and the factors that would make it suitable to accommodate a household further away. Both policies should be kept up to date and made publicly available.

Finally, Lady Hale rejected the standard paragraph used in the letter purportedly explaining the reviewing officer's decision. However, Lady Hale did not set out any guidelines for local authorities to ensure that their decisions are evidenced and explained properly.

EW: Absconder policy inconsistent with Directions to Parole Board

The Divisional Court of the High Court has ruled the prisoner "absconder policy" is inconsistent with the Secretary of State's Directions to the Parole Board of England and Wales. 

The case challenging the policy was taken by John Gilbert. Mr. Gilbert pleaded guilty to wounding with intent to cause grievously bodily harm in April 2008. He received the maximum term of four years and six months minus the time spent on remand.

The policy was introduced by the Secretary of State in May 2014 with immediate effect. Published in August 2014, the policy was an interim amendment to the PSO 6300 Release on Temporary Licence. This came in response to three serious incidents of offences committed by prisoners on release on temporary licence in the summer of 2013, and high profile prisoner absconds in 2014.

In November 2012 the Parole Board recommended the transfer of Mr. Gilbert to open conditions. Following the recommendation Mr. Gilbert was transferred to HMP Stanford Hill prison in January 2013. His sentence plan included gradual progression to 'release on temporary licence'.

After a successful period in open conditions, including being released on temporary licence on three separate days, Mr. Gilbert failed to return to prison after missing the train on June 2nd, 2013, by 7pm. The following morning Mr. Gilbert surrendered to Eastbourne police station.

As a consequence of the policy Mr. Gilbert was ineligible for transfer to open conditions. On August 15th, 2014, Mr. Gilbert was refused a transfer to open conditions.

Rejecting the "absconder policy" as inconsistent, the Court reasoned:

It is irrational to say in two policy documents in force at the same time (a) in most cases phased release via open conditions will be necessary to test whether the prisoner can be safely released into the community but (b) if the prisoner has failed on one occasion to return from [release on temporary licence], only in exceptional circumstances will it be necessary (or "absolutely necessary") to operate a phased release via open conditions to test whether the prisoner can be safely released into the community.

The Court granted the Secretary of State permission to appeal against the judgment. However the Court rejected an application for a stay pending the outcome of an appeal.

UK: Benefit Cap (Housing Cap) Regulations 2012 are lawful

The Supreme Court has upheld the benefits caps imposed by the Government as lawful. However, the Court found that the effect of the policy breach the government's obligations under the United Nations Convention on the Rights of the Child.

The lawfulness of the benefits cap was challenged by two single mothers on the ground that it is discriminatory and unfair. It was also submitted that the cuts imposed amounted to a violation of human rights and that the effect was disproportionate on women, particularly for those seeking to escape domestic violence.

'SG', is a single mother with six children residing in a two-bed flat in East London. The impact of the benefit cap leaves her and her six children with £80-a-week to live on.

'NS' has three children. 'NS' and her three children reside in a two-bed flat in outer London after a history of domestic violence and sexual abuse in her marriage. The impact of the benefit cap leaves her with a shortfall of £50-a-week in rent.

In a three to two majority verdict the Court found the Benefit Cap (Housing Benefit) Regulations 2012 were not unlawful under Article 14 of the European Convention on Human Rights together with Protocol 1 to the Convention.

In finding the government are in breach of obligations under the United Nations Convention on the Rights of the Child, the Court found the Secretary of State for Work and Pensions had failed to:

[...] show how the cap was compatible with his obligation to treat the best interests of the child as a primary consideration.

However, Lady Hale in her dissenting opinion noted that the benefits cap breaks the chain between the benefit and need:

Claimants affected by the cap will, by definition, not receive the sums of money which the state deems necessary for them adequately to house, feed, clothe and warm themselves and their children.

The benefits cap limits the maximum a family can claim to £500-a-week, equivalent to the average earnings of a working household. The benefits cap applies regardless of the number of children in the family or the level of local rents.

EW: Smoking ban applies to Crown prisons

The Administrative Division of the High Court has ruled that the prohibition of smoking in certain premises, places and vehicles applies to state prisons for which the Crown is responsible.

The case was taken by Paul Black, a prisoner at HMP Wymott since 2009. Mr. Black, convicted in 2007, is serving a sentence of indeterminate detention for public protection for sexual assault and outraging public decency. Mr. Black is a non-smoker with a history of serious health problems including angina and dysphnoea. In 2009 he required surgical intervention for an anterior myocardial infarction.

Three submissions were made on behalf of Mr. Black. The third submission, that the failure to enforce Rule 20(1) and Rule 34(2) of the Prison Rules 1999 is a breach of Mr. Black's expectations and the public law duty on the Secretary of State, was rejected because:

[...] the concept of legitimate expectation has nothing to do with the present case. As I understood it, reliance upon that concept was fairly abandoned at the hearing before me. The reason for this is that the present case does not concern a policy; it concerns a rule of law [...]

The second submission, that the Smoke Free Compliance Line be accessible, confidential and anonymous under Article 8 and Article 14 of the European Convention on Human Rights, was also rejected:

In my judgment, the difficulty with [Mr. Black's] submission on this narrower ground is that there is no authority to support it, whether in the European Court of Human Rights or in the domestic Courts.

However, Mr. Justice Rabinder Singh did accept that Chapter 1 of Part 1 the Health Act 2006 applies to prisons for which the Crown is responsible:

In my judgment, the Secretary of State has proceeded on an erroneous understanding of the law. In my view, Chapter 1 of Part 1 of the Health Act 2006 does apply to prisons and in particular to state prisons, for which the Crown is responsible.

The appropriate form of relief is yet to be decided by Mr. Justice Singh.

EW: Justice Secretary must amend policy on prisoner book ban

The High Court (Administrative) has ruled that the prohibition on sending books to prisoners is unlawful. The prohibition imposed by the Justice Secretary Chris Grayling was overturned by Mr. Justice Andrew Collins, ordering an amendment to the policy on what prisoners can receive.

Mr. Justice Collins in ruling described as "strange" the reference to books as a privilege:

A book may not only be one which a prisoner may want to read but may be very useful or indeed necessary as part of a rehabilitation process.

The challenge to the prohibition was taken by Barbara Gordon-Jones, a 56-year-old serving an indefinite sentence for a number of offences including arson with intent to endanger life. 

Ms. Gordon-Jones, Mr. Justice Collins observed:

[...] has a doctorate in English literature and the books she wishes to read are often such as are not normally required by fellow prisoners.

Her interests include books by Alan Bennett, Monica Ali and the Dialogues of Marcus Aurelius.

Mr. Justice Collins accepted that there was no intention by ministers to prevent access to books with weekly earnings which can be as low as £2.50 meant the prohibition on books stopped short of an outright ban. However, Mr. Justice Collins noted the restrictions on what prisoners can receive from friends and relatives under the amended Incentives and Earned Privileges Scheme was viewed as an outright ban on books:

As I have said, I see no good reason in the light of the importance of books for prisoners to restrict beyond what is required by volumetric control and reasonable measures relating to frequency of parcels and security considerations

The prohibition was imposed by Justice Secretary Chris Grayling a year ago in a crackdown on prisoners' "perks and privileges".

Surrogate, as birth mother, must be registered on birth certificate as the legal mother

The Supreme Court has ruled, by a six to one majority, that the surrogate mother of twins, as the birth mother, is entitled to be registered as the legal mother on the birth certificates. The judgment overturns the High Court ruling by Mr. Justice Abbott in March 2013.

The issues arose from the radical developments in assisted reproduction and were issues for the legislature, not for the courts to address, observed Chief Justice Susan Denham.

The lacuna surrounding particular rights of children born through surrogacy merits the outstanding issues being left to the legislature:

Any law on surrogacy affects the status and rights of persons, especially children: it creates complex relationships and has a deep social content.

In separate judgments, only Mr. Justice Frank Clarke dissented, while the remaining panel agreed the appeal should be allowed. However, Mr. Justice O'Donnell stressed his decision to allow the appeal was based on the fact that the Civil Registration Act 2004 requires the surrogate mother, as the birth mother, to be registered as the the mother on the respective birth certificates.

The case centers around twins born to a surrogate mother, using sperm and ovum from the genetic parents.

While the genetic father of the twins was registered on the birth certificates, the Registrar of Births refused to register the genetic mother because she was not the birth mother. The Registrar maintained that the surrogate mother must be registered on the birth certificates.

The core issue was the registration of a "mother" under the Civil Registration Act 2004, observed Chief Justice Denham. The Constitution does not provide for a definitive definition of "mother". Nor does the Constitution prevent the development of legislation on surrogacy.

The State relied on the status of the Latin legal maxim, mater semper certa est - the mother is always certain. However, Chief Justice Denham observed that the maxim is not part of Irish common law and the words merely recognise a fact that the woman who gives birth to a child is the mother of the child.

As it stands, neither Irish jurisprudence or existing legislation addresses the outstanding issues on surrogacy arrangements, Chief Justice Denham observed. Citing the lacuna in the law as being the basis for her decision, the appeal was allowed.

In applying the test for Supplementary Welfare Allowance the deciding officer must have regard to the complexity of the applicant's family circumstances

The Department of Social Protection must reconsider the decision to grant a single person's Supplementary Welfare Allowance to a separated father of four children, the High Court has ruled. Kevin McCormack cared for his four children full time prior to separating from his wife in 2011 and moving back to Dublin to seek employment.

Mr. McCormack applied for Supplementary Welfare Allowance in July 2012. In his application, Mr. McCormack sought the maximum available for one parent with three children. However, in August 2012, the Department refused his application for the maximum €900 sought because it was in excess of the €475 monthly limit for a single person. Mr. McCormack appealed to the Appeals Officer, but the application was disallowed in December 2012.

A solicitor on behalf of Mr. McCormack made an application to the Chief Appeals Officer requesting a review. In November 2013, the Chief Appeals Officer gave a reasoned written decision for rejecting the application to review the decision of the Appeals Officer:

[...] as the housing and other basic needs of the children were met by their primary carer and the applicant received no increase in respect of those children on his primary social welfare payment, they were not dependent on [Mr. McCormack] for support and could not be regarded as dependent children. 

Ms. Justice Marie Baker found the decision making process of the Department was flawed in assessing the application because it only had regard to Mr. McCormack's accommodation needs without having regard to the complexity of his family circumstances:

I am satisfied that the decision making process was flawed as a matter of law in that the decision body took an erroneous view of the test it had to apply, and looked only to the accommodation needs of [Mr. McCormack] himself without having any regard to the complexity of his family relationships [...].

Ms. Justice Baker also found that the children could not be viewed as living primarily with one parent, or having one primary carer.

Charity cannot be used as a substitute for mandatory sanctions

The High Court has ruled that the court poor box cannot be used as an alternative to imposing penalty points and a fine in speeding cases.

Mr. Justice Hogan observed that despite the "obscure and uncertain origins" of the court poor box, its use in other cases is of such longstanding and widespread use, it must be considered part of common law - adopted under Article 50.1 of the Constitution.

However, Mr Justice Hogan ruled that the court poor box does not apply in penalty points cases.

A pensioner had challenged the refusal of Judge Conal Gibbons of the District Court to allow a contribution to be made to the court poor box after pleading guilty to speeding.

Counsel for the pensioner pointed out Judge Gibbons' allowance of the use of the court poor box in another speeding case. However, Judge Gibbons claimed that he had since become aware of a High Court judgment (see comment below) precluding his use of the court poor box in speeding cases.

Mr. Justice Gerard Hogan noted that the dismissal of penalty points offences under the Probation Act was prohibited under section 55 of the Road Traffic Act 2010.

Mr. Justice Hogan ruled that the common law jurisdiction must be deemed to have been superseded with the commencement of the 2010 Act.

Mr. Justice Hogan ruled that the imposition of an "informal sanction" like a donation to the court poor box would be an indirect circumvention of the 2010 Act.

Moreover, Mr. Justice Hogan observed the difference between existing case law in which the court poor box was used in cases of sexual assault was, the legislator provided for mandatory sanctions for particular road traffic offences.

However, the District Court still has jurisdiction in sexual assault cases because mandatory sanctions were not provided for.

Comment:  D.P.P v Maughan [2003] IEHC 117 (3rd Nov. 2003)

The notice party, Colm McNerney pleaded guilty to a charge of drink driving before the District Court. However, McNerney gave evidence that at the time of the offence he was driving to the hospital to be with his seriously ill father, who died weeks later.

After initially adjourning, Judge Maughan indicated that the issue would be struck out if McNerney paid €200 to Victim Support. In ruling, Mr. Justice Ó Caoimh held that:

It is not in dispute that if this was the intention of [Judge Maughan] at the time he did not have jurisdiction to strike out the charges in question as the same do not permit the application of the Probation Act 1907.

In concluding, Mr. Justice Ó Caoimh expressed that he was:

…satisfied that the order made by [Judge Maughan] was made in excess of jurisdiction as he was obliged at the time to determine the case before him and to proceed in accordance with law to enter a conviction and to impose a penalty as required by law.

While the judgment did not expressly decide that the poor box could not be used, in this case for drink driving, due to mandatory sanctions, this appears to be an inescapable conclusion.

EW: Residents’ parking fees cannot subsidise transport budget

In a seminal High Court ruling delivered by Ms. Justice Beverley Lang, Town Halls cannot deliberately profit out of cash raised from motorists for parking outside their private residence.

However, Ms. Justice Lang did not rule illegal the half billion pound sterling surplus generated from parking as a whole. This means councils are still entitled to make a profit once fines, car parks and meter charges are put into the mix.

The catch is, the money raised must be used solely for transport whether it is fixing roads or paying for concessionary bus passes.

Barnet Council has been in the High Court before over  parking, and appears to be confused on the law where parking is concerned.

Other councils have maintained  that the profits raised are purely coincidental, and within the law. Councils in England and Wales cannot understand what possessed Barnet Council to ask Pricewaterhouse Coopers to include money raised from permits into the calculations.

The High Court ruling paves the way  for legal challenges against other councils profiting from selling residents’ permits.

Reasons must be given for administrative decisions

The Supreme Court has rejected the decision of the Minister for Justice not to grant a certificate of naturalisation for Irish citizenship to a Syrian national. The five judge Court held that the Minister was obliged to provide reasons for his refusal, but failed to do so.

Ruling in favour of Ghandi Mallak, Mr. Justice Nial Fennelly observed that the developing law of Irish courts provides "compelling evidence" that it must be unusual for a decision maker to be allowed to refuse to give reasons.

Mr. Justice Fennelly also observed that law serves to provide a remedy where it can be shown that fairness is lacking.

Indeed, administrative decisions are not excluded from review and any opinion formed by the Minister must be held in good faith, factually sustainable and reasonable.

Mr. Mallak and his wife arrived in Ireland in 2002, obtaining asylum in 2003, later applying for a certificate of naturalisation as part of the citizenship process.

However, the first application was rejected because Mr. Mallak was not residing in Ireland long enough. He applied again in December 2005, only to be rejected in November 2008. The Minister did not disclose the reasons.

Documents relating to his case were sought under the Freedom of Information Act, including the reasons for rejecting the application.

Mr. Mallak was informed by the Office of the Information Commissioner that the refusal of the Minister to give reasons was in accordance with section 18 of the Freedom of Information Act.

Additional requests to the Department of Justice disclosed material Mr. Mallak claims he was previously unaware of and, as a result, had no opportunity to meet any adverse findings.

Later, Mr. Mallak appealed the High Court ruling of 2011 to the Supreme Court where Mr. Justice Fennelly observed that the failure to give reasons means it is not possible for Mr. Mallak to decide whether he has a basis for applying for judicial review of the substance of the decision.

The Supreme Court ruling will have implications for other administrative decisions where it can be shown that fairness is lacking.