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FOURTH
SECTION
CASE OF
GOGGINS AND OTHERS v. THE UNITED KINGDOM
(Applications
nos. 30089/04, 14449/06, 24968/07, 13870/08, 36363/08, 23499/09,
43852/09 and 64027/09)
JUDGMENT
(striking
out)
STRASBOURG
19 July
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the cases of Goggins and others v. the United Kingdom,
The
European Court of Human Rights (Fourth Section),
sitting as a Chamber composed of:
Lech Garlicki, President,
Nicolas
Bratza,
Ljiljana Mijović,
Sverre Erik
Jebens,
Päivi Hirvelä,
Ledi
Bianku,
Vincent A. De Gaetano, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 28 June 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
cases originated in eight applications (nos. 30089/04,
14449/06, 24968/07, 13870/08, 36363/08, 23499/09, 43852/09 and
64027/09) against the United Kingdom of Great Britain and
Northern Ireland lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by eight
British nationals, Mr Ciaron Goggins, Mr John Day, Mr Michael
Jackson, Mr Christopher Scott, Mr Guled Michael, Ms Carol
Castley-Turner, Mr Darren Coates and Mr Jonathan Bennetts
(“the applicants”) on 11 August 2004, 28
March 2006, 22 May 2007, 25 February 2008, 18 July 2008,
3 April 2009, 30 July 2009 and 11 November 2009 respectively.
- The
United Kingdom Government (“the Government”) were
represented by their Agent, Ms H. Moynihan, of the Foreign and
Commonwealth Office.
- The
applicants complained, inter alia, about
the collection and retention of their DNA samples, fingerprints and
associated data.
4. On
22 January 2010 the Vice-President of the Fourth Section
decided to give notice of the applications to the Government. It
was also decided to rule on the admissibility and merits of the
applications at the same time (Article 29 § 1).
THE FACTS
- The
applicants are:
30089/04
Mr Ciaron Goggins, a British national who was born in 1961 and lives
in Ballyjamesduff, Ireland.
14449/06
Mr John Day, a British national who was born in 1964 and lives in
Witham.
24968/07
Mr Michael Jackson, a British national who was born in 1953 and lives
in Leeds. He is represented before the Court by Tyndallwoods, a firm
of solicitors based in Birmingham.
13870/08
Mr Christopher Scott, a British national who was born in 1952 and
lives in Horsham.
36363/08
Mr Guled Michael, a British and Somali national who was born in 1977
and lives in London.
23499/09
Ms Carol Castley-Turner, a British national who was born in 1950 and
lives in Radcliffe.
43852/09
Mr Darren Coates, a British national who was born in 1971 and lives
in Mansfield.
64027/09
Mr Jonathan Bennetts, a British national who was born in 1971 and
lives in Penzance.
A. Background facts
1. 30089/04 Goggins
- The
applicant was arrested on 13 May 2004 after an allegation of rape was
made against him. At the police station, his fingerprints and
photographs were taken and he provided a DNA sample.
- On
19 July 2004 he was advised that the charges against him had been
dropped.
- To
date, his DNA, photographs and fingerprints have not been destroyed.
2. 14449/06 Day
- The
applicant was arrested in 2005. At the time of his arrest,
fingerprints and photographs were taken. He also provided a DNA
sample. No further inquiries were made and the applicant was not
convicted of any offence.
- On
10 April 2006, Essex Police confirmed that the applicant’s case
was not considered to be exceptional and that his fingerprints and
DNA would be retained.
- It
appears that Mr Day’s DNA sample was subsequently found to have
insufficient DNA material and there are accordingly no data relating
to him in the DNA database.
3. 24968/07 Jackson
- On
15 November 2004 the applicant was charged with a harassment offence
following a dispute with his neighbours. He was required to provide
samples of his DNA and fingerprints. It appears that photographs were
also taken.
- On
28 July 2005 he was acquitted in the Magistrates’ Court.
Following his acquittal, he requested the destruction of his DNA and
fingerprint data.
- By
letter dated 28 March 2006 West Mercia Police refused his request on
the basis that his case did not disclose any exceptional
circumstances. This decision was confirmed on 27 July 2006 and
2 October 2006. The applicant subsequently sought to
establish “exceptional circumstances”. His request for
destruction of the data was definitively rejected on 6 February 2007.
- To
date, his DNA, fingerprints and photographs have not been destroyed.
4. 13870/08 Scott
- On
7 August 2006 the applicant voluntarily attended Crawley police
station where he was arrested. The allegations against him were that
he was guilty of harassment in respect of his conduct towards Mrs
K.O., who had made a complaint to the police. His fingerprints and
photographs were taken and he provided a DNA sample. He was not
charged with any offence.
- Following
a request that his data be destroyed, he was advised by Sussex Police
on 29 November 2006 that his DNA and fingerprint records would be
retained.
- The
applicant subsequently complained about his arrest. On 22 March
2007, he was advised that an investigation had been carried out and
that there was insufficient evidence to justify misconduct
proceedings against any officer. He was advised by letter of 16 May
2007 that his appeal against that decision had been refused by the
Independent Police Complaints Commission (“IPCC”).
- To
date, his DNA, photographs and fingerprints have not been destroyed.
5. 36363/08 Michael
- On
21 January 2005 the applicant was travelling by bus when he was asked
to produce his ticket by a ticket inspector. The applicant produced a
child bus ticket. The inspector asked for the applicant’s name
and address, which the applicant refused to provide, offering instead
to pay the relevant fine. The ticket inspector insisted that the
applicant provide his name and address, whereupon the applicant wrote
down a false name and his former address. At that stage, a police
officer became involved and it emerged that the details provided by
the applicant were false. He quickly provided the correct details,
producing a formal letter to confirm his identity and address. The
applicant was then arrested and taken to the police station, where a
DNA sample and fingerprints were taken. He was not charged in
connection with the incident.
- In
October 2006 the applicant requested the police to destroy his Police
National Computer (“PNC”) record including his DNA data
and fingerprints. On 22 August 2007 the applicant was advised that
his data would not be destroyed as his case was not exceptional.
- On
5 November 2007 the applicant lodged an application for judicial
review arguing that his arrest was unlawful as it did not comply with
the relevant legislation and he was not advised of the reasons for
his arrest. He further argued that the decision to retain his
data was unlawful.
- On
28 January 2008, his application for judicial review was refused on
the papers on the ground that it was misconceived and had been lodged
out of time. The judge noted that the possibility of a civil action
in the County Court was open to the applicant, although he observed
that on the basis of the papers before him, such action seemed likely
to fail.
- At
a renewed permission hearing on 15 April 2008 the court found that
the application had been lodged in time but refused permission to
seek judicial review. The court found that the applicant had been
lawfully arrested on suspicion of deception or attempted deception.
It referred to contemporaneous notes of the attending police officer
which stated that the applicant had been advised that he was being
arrested on suspicion of deception. The arrest having been lawful, it
followed that the retention of the applicant’s data was also
lawful.
- To
date, his PNC record, DNA data and fingerprints have not been
destroyed.
6. 23499/09 Castley-Turner
- It
is not clear exactly when or why the applicant’s fingerprints,
DNA and photographs were taken by the police authorities. Documents
submitted by the applicant appear to indicate that she was arrested
on 2 August 2008 on suspicion of battery, following which no further
action was taken. The documents also confirm that her fingerprints
and photographs were taken on 21 November 2008 in connection with a
suspected theft offence.
- On
22 March 2009 the applicant wrote to Greater Manchester Police
requesting that her DNA data, fingerprints and photographs be
destroyed. By letter dated 14 April 2009 she was advised that her
data had been lawfully collected following her arrest in August 2008
for offences against the person. They would therefore be retained.
- The
applicant subsequently wrote to the IPCC regarding the retention of
her data and raising general complaints about the police. On 22 April
2009 she was advised that her complaints regarding data retention
were outside the IPCC’s remit and that her general complaints
appeared to be the same as complaints previously considered and
dismissed by the IPCC in 2008.
- To
date, her DNA, photographs and fingerprints have not been destroyed.
7. 43852/09 Coates
- Following
a parking incident on 20 October 2007 the applicant was arrested
under caution on 12 November 2007 after attending the police station
voluntarily. Fingerprints and a DNA sample were taken. On 24 December
2007, he was advised by the Crown Prosecution Service that he would
not be charged with any offence.
- On
20 January 2009 Nottinghamshire Police advised that the applicant’s
DNA would be retained. This was confirmed on 18 May 2009. On 11 June
2009, the applicant was definitively informed that his DNA would not
be destroyed.
- To
date, his DNA and fingerprints have not been destroyed.
8. 64027/09 Bennetts
- Documents
submitted by the applicant appear to show that a DNA sample was taken
from him on 8 February 2006 following his arrest in connection with
alleged public order and other miscellaneous offences. He was
subsequently arrested on 8 December 2006 for suspected harassment
offences. No further action was taken on either occasion.
- Subsequently,
in unrelated proceedings, on 23 July 2008 the applicant was served
with an application in the County Court for a possession order
against him. He did not reply but attended court on the date
indicated. At the hearing, he was told to put his defence in writing,
and the case was adjourned to 6 November 2008.
- The
applicant lodged a written defence as requested. On 6 November 2008
the applicant did not attend court due to prior work commitments.
A possession order was made against him. On 4 December 2008
execution of the possession order was stayed until the judge’s
reasons for making the order were delivered.
- Subsequent
events are unclear. It would seem that the applicant sought leave to
appeal and that leave was granted on 27 January 2009. On 23 March
2009, it appears that the appeal was dismissed. The applicant alleges
that he only received a copy of the transcript of the judgment in
November 2009.
- On
22 April 2009 the applicant alleges that the County Court made an
eviction order. The applicant was apparently evicted on 13 May 2009.
- By
letter dated 8 June 2009, the court service advised the applicant
that his application for permission to appeal and a stay of execution
had not been considered by a judge because the applicant had provided
insufficient papers. The letter noted the applicant’s wish to
proceed with his application and requested details as to how the
change in circumstances, i.e. the repossession of the applicant’s
house, did not render his application academic. There is no evidence
of any reply by the applicant.
- In
September 2009 the applicant alleges that he applied for an
injunction to prevent the demolition of his former home. Documents
submitted by him show that a claim was issued against an unspecified
defendant on 29 September 2009. No further details have been
provided.
- On
an unspecified date, and following suspected arson at the applicant’s
business premises, the applicant appears to have been arrested. It
would seem he was subsequently arrested a second time following
allegations of harassment made by his landlord. No further arrests
were made nor were any charges brought in respect of the alleged
arson and false allegations.
- On
9 October 2009 the applicant was informed that his police record for
the offence of harassment following his arrest in 2006 would be
retained.
- To
date, his DNA data have not been destroyed.
B. Relevant domestic law and practice
1. Current law on DNA and biometric data retention in
England and Wales
- The relevant domestic law and practice regarding the
collection and retention of fingerprints and samples are set out in
detail in the Court’s judgment in S. and Marper v. the
United Kingdom [GC], nos. 30562/04 and
30566/04, §§ 26 to 35, 4 December 2008.
- The Police and Criminal Evidence Act 1984 (“PACE”)
contains powers for the taking of fingerprints and samples and the
retention of such fingerprints and samples and the records thereof. A
set of guidelines for the retention of fingerprint and DNA data is
contained in the Retention Guidelines for Nominal Records on the
Police National Computer 2006 drawn up by the Association of Chief
Police Officers in England and Wales (“ACPO”). The
relevant Chief Police Officers have the discretion in exceptional
circumstances to authorise the deletion of data.
2. Protection of Freedoms Bill
- The Protection of Freedoms Bill was presented to
Parliament on 11 February 2011. It includes provisions to amend
the DNA and fingerprints retention scheme in England and Wales along
the lines of the Scottish model for which, see § 38 of the above
cited S. and Marper judgment. It is currently awaiting its
report stage on the floor of the House of Commons.
3. Supreme Court judgment of May 2011
- On 18 May 2011 the Supreme Court issued its ruling in
the cases of R (on the application of GC) v. The Commissioner of
Police of the Metropolis and R (on the application of C) v.
The Commissioner of Police of the Metropolis ([2011] UKSC 21. The
claimants in the cases sought to argue that following this Court’s
decision in S. and Marper, cited above, the continued
retention of their data was unlawful and that a declaration of
incompatibility under the Human Rights Act 1998 should be made
- Lord Dyson, giving the leading judgment on the
appropriate relief for the majority, found that the provisions of
PACE were not incompatible with Article 8 of the Convention as they
permitted a policy which was less far-reaching than the ACPO
guidelines and could therefore be read to comply with the
requirements of Article 8.
- Lord Dyson noted that the Protection of Freedoms Bill
included proposals to amend the scheme for retention of DNA data
along the lines of the Scottish model, and that the intention of the
Government was to bring the legislation into force later in 2011. He
proceeded on the basis that this was likely to happen, although not
certain to do so. He accordingly granted a declaration that the
present ACPO guidelines were unlawful because, as clearly
demonstrated by S. and Marper, they were incompatible with the
Convention. However, since Parliament already had the matter under
examination, he considered that it was neither just nor appropriate
to make an order requiring a change to the legislative scheme within
a specified period. Nor was it just or appropriate to make an order
for the destruction of data which it was possible it would be lawful
to retain under the new scheme to be introduced by the Protection of
Freedoms Bill. He concluded:
“49. In these circumstances, the only order that
should be made is to grant a declaration that the present ACPO
guidelines (as amended) are unlawful. If Parliament does not produce
revised guidelines within a reasonable time, then the appellants will
be able to seek judicial review of the continuing retention of their
data under the unlawful ACPO guidelines and their claims will be
likely to succeed.”
- As regards photographs which were taken of GC when he
was arrested, Lord Dyson noted that this issue received a “passing
reference in the claim form and in paragraph 20 of the grounds”
and that there had been no opportunity during the proceedings to hear
evidence regarding the justification for the retention of
photographs. He accepted that, in the absence of any evidence or any
consideration of the matter by the Divisional Court, the Supreme
Court should express no opinion on that part of the appeal but leave
the matter to be determined if and when the point was properly raised
in another case. As regards information about C held on the PNC, Lord
Dyson noted that it was common ground that the retention of this
information raised no separate issues from those raised by the
retention of C’s DNA material and fingerprints.
C. Activities of the Committee of Ministers
- The Committee of Ministers has responsibility for
supervising the execution of the Court’s judgment in S. and
Marper. The S. and Marper applicants’ fingerprints,
DNA samples and profiles at issue in the case were destroyed
following the Court’s judgment, although new data taken from
one of the applicants following his arrest in connection with a
subsequent offence are currently being retained. The cases remain
before the Committee of Ministers pending the adoption of the
necessary general measures to execute the Court’s judgment.
THE LAW
I. JOINDER
- Given
their similar factual and legal background, the Court decides
that the eight applications should be joined pursuant to Rule 42 §
1 of the Rules of Court.
II. ALLEGED VIOLATION OF THE CONVENTION IN RESPECT OF
COLLECTION AND RETENTION OF DATA
- The
applicants complained about the collection and retention of their DNA
and fingerprint data. Some of the applicants also complained about
the retention of photographs and PNC records. They relied on Article
8 of the Convention which, in so far as relevant, provides as
follows:
“1. Everyone has the right to respect
for his private ... life ...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others. ”
- Some
of the applicants also relied on Articles 3, 5, 6, 7, 10, 13, 14 and
17 of the Convention. However, the Court considers that the matter
falls to be examined under Article 8 alone.
A. Admissibility
- In
light of the Court’s judgment in S. and Marper, it is
clear that the applicants’ complaints under Article 8 of the
Convention concerning the retention of their DNA and fingerprint data
and PNC records raise complex issues of law and fact. It follows that
this part of the applications is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention, nor is it
inadmissible on any other grounds. It must therefore be declared
admissible.
- However,
it appears from the judgment of the Supreme Court that the question
of retention of photographs has not been properly argued before the
domestic courts and would be a matter to be resolved by them in some
future case where the point was correctly pleaded (see paragraph 49
above). The Court considers that in assessing any such complaint, the
domestic courts would have regard to the relevant principles arising
under Article 8 as set out in the Court’s case-law and it is
therefore persuaded that the possibility of judicial review offers
reasonable prospects of success to address complaints in this regard.
It follows that the applicants who complained about retention of
their photographs have failed to exhaust domestic remedies in respect
of their complaints. The complaints are
therefore rejected pursuant to Article 35 §§ 1 and 4 of the
Convention.
B. Merits
1. The parties’ submissions
- By
letter dated 25 October 2010 the Government informed the Court that
they proposed to make a unilateral declaration with a view to
resolving the issue raised by the applications. They requested the
Court to strike out the applications in accordance with Article 37 of
the Convention.
- On
6 January 2011 the Government submitted a revised declaration. The
declaration provided as follows:
“In the eight cases of Mr Goggins, Mr Jackson, Mr
Scott, Mr Michael, Mr Coates, Mr Bennetts, Ms Castley-Turner and Mr
Day, fingerprints, cellular samples and DNA profiles were taken from
them by the police pursuant to powers under the Police and Criminal
Evidence Act 1984 (“the 1984 Act”) following their arrest
for certain offences. That data was retained by the police
authorities pursuant to their powers under section 64 of the 1984
Act, although the individuals in question were not subsequently
convicted of the offences for which they had been charged and the
individuals in question have not previously been convicted of any
offences of which the Government is aware.
The Government accept the conclusion of the Court in S
& Marper v United Kingdom [GC], nos 30562/04 and 30566/04
(4th December 2008) at § 125. The Court concluded
that the blanket and indiscriminate nature of those powers of
retention of fingerprints, cellular samples and DNA profiles of
persons suspected but not convicted of offences as had been applied
to the retention of the data of the applicants in that case failed to
strike a fair balance between the competing public and private
interests, and that an acceptable margin of appreciation had been
overstepped, such that the retention that had occurred in accordance
with those powers constituted a disproportionate interference with
those applicants’ right to respect for private life and could
not be regarded as necessary in a democratic society.”
- As
to the alleged violation of Article 8, the declaration noted:
“The data sample of Mr Day was found to consist of
insufficient DNA material, so there is no data on the National DNA
Database in Mr Day’s case. This has been confirmed to Mr Day in
writing by Essex Police. The Government acknowledge that the previous
retention of the data in the case of Mr Day, in accordance with the
same blanket and indiscriminate application of those powers of
retention referred to in the Court’s judgment in S &
Marper, constituted a violation of Article 8.
The data of the seven other applicants referred to above
continue to be held. The Government acknowledge that the continuing
retention of this data, in accordance with the same blanket and
indiscriminate application of those powers of retention identified in
S & Marper, must also constitute a violation of Article
8.”
- The
declaration continued:
“The United Kingdom Government is in the process
of implementing the decision of the Court in S and Marper,
which will be done by introducing new legislation to ensure that the
provisions governing the retention of such data are proportionate in
light of the rights of the individuals under Article 8. The recently
elected Coalition Government has committed to introducing new primary
legislation for this purpose. The new Government, in its Programme
for Government published on 20 May 2010, states that it ‘will
adopt the protections of the Scottish model for the DNA database’.
Significantly, the Court in S and Marper, observed that
the Scottish model was ‘notably consistent with the Committee
of Ministers’ Recommendation R(91)1, which stresses the need
for an approach which discriminates between different kinds of cases
and for the application of strictly defined storage periods of data,
even in more serious cases’ unlike arrangements in force in the
rest of the UK.
As set out in the Queen’s Speech on 25 May 2010,
the Government will introduce a Freedom Bill to parliament within the
next few months and, subject to Parliamentary approval, it is hoped
that the new legislation will receive Royal Assent in the autumn of
2011 and will come into force shortly after that. The Prime Minister
has stated that the Freedom Bill will ‘restrict the scope of
the DNA database and ... give added protection to innocent people
whose samples have been stored’. Any continued retention of the
data of the seven individuals in question will be subject to the
requirements of the new legislation and the measures it will contain
to ensure that the data is only retained for such period as is
considered by the UK Parliament to be proportionate in all the
circumstances.”
- The
declaration concluded:
“The Government therefore acknowledge and regret
the violation of Article 8 that has occurred in respect of the eight
individuals identified above. By application of the principles
expressed by the Court in S and Marper, the Government
consider that the acknowledgement and declaration of this violation,
coupled with measures that the Government is taking to ensure that
subsequent retention will be subject to the requirements of the new
legislation once enacted, constitute just satisfaction for the
applicants listed above.
In the circumstances, the Government declare that they
hereby offer to pay ex gratia in respect of legal expenses and
VAT:
(i) the sum of £2,000 (two thousand pounds
sterling) in connection with Mr Jackson’s case;
(ii) the sum of £800 (eight hundred pounds
sterling) in connection with Mr Scott’s case; and
(iii) the sum of £75 (seventy five pounds
sterling) in connection with each of the cases of Mr Goggins, Mr
Michael, Mr Coates, Mr Bennetts, Ms Castley-Turner and Mr Day.”
- In
letters of 12 November 2010 and 4 February 2011 Mr Goggins indicated
that he was opposed to the striking out of his case. He referred to
the illegal retention of his DNA data for over six years and insisted
that they should now be deleted. He requested the quashing of his
conviction, an undertaking from the Government that he would no
longer face attempts at intimidation, full disclosure of data
relating to him which were held on the Police National Computer and
deletion of the DNA samples of innocent people in a transparent and
independent process. He also requested compensation and considered
the GBP 75 offered in his case to be unacceptably low.
- Mr
Day submitted no comments on the Government’s unilateral
declaration.
- In
letters of 19 November 2010, 3 February 2011 and 9 May 2011,
solicitors for Mr Jackson advised the Court that he did not accept
the terms of the Government’s unilateral declaration. They
requested that his fingerprints, DNA samples, photographs and
associated PNC records be destroyed immediately given that more than
six years had passed since they were collected. They pointed out that
the introduction of legislation was an uncertain procedure and, in
the present case, it was not clear whether Mr Jackson’s
data would be destroyed once new legislation was in force.
In particular, the new legislation would not apply to
photographs and PNC data. They further considered that the GBP 2,000
offered in respect of costs was unacceptable given the fees incurred
by solicitors and barristers in seeking to have the matter resolved
and in drafting the application to this Court. They emphasised in
particular that Mr Jackson’s application was submitted to the
Court prior to its decision in S. and Marper v. the United Kingdom
[GC], nos. 30562/04 and 30566/04, 4 December 2008. They requested
that the full costs in the sum of GBP 10,585.63 be awarded and
provided documentation in support of this claim.
- In
letters of 5 November 2010 and 26 January 2011 Mr Scott expressed the
view that the admission by the Government of a violation of Article 8
should lead to the immediate destruction of his data. The passage of
new legislation was uncertain and could be delayed. He pointed out
that even if the new legislation was enacted in autumn 2011 as
planned, by then his data would have been held for over five years.
- In
a letter of 3 November 2010 Mr Michael objected to the striking out
of his case on the basis of the unilateral declaration. He considered
the declaration to be a mere recitation of the Court’s judgment
in S. and Marper, cited above, and further pointed out that it
did not address his complaint regarding the unlawfulness of his
arrest. He requested deletion of the entire police record.
- In
a letter of 20 January 2011 Ms Castley-Turner objected to the low
level of costs awarded and complained generally about the conduct of
the police and the inadequate protection by the Government of human
rights.
- In
a letter of 10 November 2010 Mr Coates expressed concern about the
unilateral declaration. He wanted a guarantee that his DNA samples
and related material would be removed from the database.
- In
a letter received by the Court on 23 November 2010 and a letter of 24
January 2011 Mr Bennetts expressed the view that he was entitled to
significant compensation for the unlawful retention of his DNA data.
He also reiterated his other complaints under the Convention. He
considered the costs offered to be inadequate.
2. The Court’s assessment
- The
Court recalls that Article 37 of the Convention provides that it may
at any stage of the proceedings decide to strike an application out
of its list of cases where the circumstances lead to one of the
conclusions specified, under (a), (b) or (c) of paragraph 1 of that
Article. Article 37 § 1 (c) enables the Court in
particular to strike a case out of its list if:
“for any other reason established by the Court, it
is no longer justified to continue the examination of the
application”.
- It
also recalls that in certain circumstances, it may strike out an
application or part thereof under Article 37 § 1(c) on the basis
of a unilateral declaration by a respondent Government even if the
applicant wishes the examination of the case to be continued.
- To
this end, the Court will examine carefully the declaration in the
light of the principles emerging from its case-law (see Tahsin
Acar v. Turkey, [GC], no. 26307/95, §§ 75-77,
ECHR 2003-VI; WAZA Spółka z o.o. v. Poland (dec.)
no. 11602/02, 26 June 2007; and Sulwińska v. Poland
(dec.) no. 28953/03).
- The
Court recalls that it has already examined in detail the current
legislation in England and Wales which governs collection and
retention of DNA and fingerprint data, as well as the application of
data retention powers in practice, in the case of S. and
Marper, cited above. In that case, it found that the blanket and
indiscriminate nature of the powers of retention of the fingerprints,
cellular samples and DNA profiles of persons suspected but not
convicted of offences, as applied in S. and Marper,
failed to strike a fair balance between the competing public and
private interests and that the respondent State had overstepped any
acceptable margin of appreciation. The retention therefore
constituted a disproportionate interference with the applicants’
right to respect for private life and could not be regarded as
necessary in a democratic society, resulting in a violation of
Article 8 (see S. and Marper, cited above, §
125).
- The
Court observes that the Government have recently introduced a bill to
Parliament which would amend the existing provisions on DNA and
fingerprint data retention along the lines of the Scottish model
(see paragraph 45 above). While the Grand Chamber in S. and
Marper did not set out the precise legislative changes required
to secure effective respect for private life, it did refer to the
approach adopted in Scotland, which it considered particularly
significant, and commented on the consistency of that approach with
the Committee of Ministers’ Recommendation R(92)1, which
stresses the need for an approach which discriminates between
different kinds of cases and for the application of strictly defined
storage periods for data, even in more serious cases (see S. and
Marper, cited above, §§ 109-110). Thus, while it will
be for the Court to decide on the compatibility of the legislation
proposed in the Protection of Freedoms Bill with Article 8 in any
future case brought before it concerning retention of data, the Court
is of the view that the recent steps taken by the Government are
clearly intended to achieve compliance with the requirements of the
Convention. In this regard, the Court recalls that in its recent
judgment in Greens and M.T. v. the United Kingdom, nos.
60041/08 and 60054/08, § 115 and 121 and point 6(a) of the
operative provisions, ECHR 2010 ... (extracts), regarding
prisoners’ voting rights, it indicated its intention to strike
out de plano similar follow-up cases provided that the
Government introduced legislative proposals intended to achieve
compliance with the Court’s previous judgment in Hirst v.
the United Kingdom (no. 2) ([GC], no. 74025/01, ECHR 2005 IX)
within the stipulated deadline.
- The
Court further notes that the Supreme Court has recently made a
declaration that the ACPO guidelines prohibiting deletion of DNA and
fingerprint data in the absence of exceptional circumstances are
unlawful (see paragraph 48 above). Of particular significance in the
present cases are Lord Dyson’s comments to the effect that a
failure by Parliament to introduce a revised scheme within a
reasonable time would enable the claimants to seek judicial review of
the continued retention of their data under the unlawful ACPO
guidelines. It is noteworthy that Lord Dyson considered that their
claims would be likely to succeed. It appears from Lord Dyson’s
comments that if the Protection of Freedoms Bill is not enacted
within a reasonable time, the applicants in the present cases will
similarly have a further opportunity to seek redress at domestic
level to secure the deletion of their data.
- The
Court accepts that the new legislation does not appear to cover PNC
data. However, it observes that in the case before the Supreme Court
it was common ground that no separate issues arose from those raised
by the retention of DNA material and fingerprints (see paragraph 49
above). In the present cases, none of the applicants who complained
about the refusal to delete their PNC records have submitted detailed
pleadings regarding the retention of the records. Their submissions
focused on the retention of DNA and fingerprint data following the
domestic judgment of the House of Lords in S. and Marper and,
subsequently, the judgment of this Court in that case. It has
accordingly not been demonstrated that any separate issues arise in
respect of the failure to delete the applicants’ PNC records
such as to justify the continued examination of their cases.
-
Finally, the Court is satisfied that the total amounts offered to the
applicants by the Government in respect of costs and expenses are
adequate, in each case, to cover costs and expenses actually and
necessarily incurred and reasonable as to quantum.
- Having
regard to its judgment in S. and Marper, to the nature of the
admissions contained in the Government’s declaration, to the
recent judgment of the Supreme Court and to the introduction to
Parliament of amending legislation aimed at securing compliance with
Article 8 of the Convention, the Court considers that it is no longer
justified to continue the examination of the applications (Article 37
§ 1(c)). Moreover, in light of the above considerations, the
Court is satisfied that respect for human rights as defined in the
Convention and the Protocols thereto does not require it to continue
the examination of the applications (Article 37 § 1 in fine).
- In view of the above, it is appropriate to strike the
cases out of the list in so far as they concern complaints related to
the collection and retention of DNA samples, fingerprints and
associated data and the retention of PNC records, without prejudice
to the Court’s power to decide, pursuant to Article 37 §
2, to restore the applications to the list should the respondent
State fail to enact the draft legislation currently before
Parliament.
- In
accordance with Rule 43 § 3 of the Rules of Court, the present
judgment will be forwarded to the Committee of Ministers. In the
event that the Government fail to pay the sums set out in the
unilateral declaration in respect of the applicants’ costs and
expenses within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, simple interest will be payable at a rate equal to
the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
III. ALLEGED VIOLATIONS OF OTHER ARTICLES OF THE
CONVENTION
- Mr
Scott complained under Article 6 that his arrest was unlawful.
Mr Michael complained under Article 5 §§ 1, 2 and 4,
Article 6 and Article 13 that his arrest was unlawful and that
no effective remedy was available. Mr Bennetts complained under
Articles 3, 6, 8 and 14 and Article 1 of Protocol No. 1 about
his eviction and the failure of the police to bring charges in
relation to an alleged incident of arson and to take further action
in respect of false allegations made against him.
- In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court finds no
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols arising from these complaints.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Decides
to join the applications;
2. Declares the complaints regarding the collection or
retention of DNA samples, fingerprints or associated data and the
retention of PNC records admissible and the remainder of the
applications inadmissible;
3. Takes note of the terms of
the Government’s declaration and of the modalities for ensuring
compliance with the undertakings referred to therein (Rule 43 §
3 of the Rules of Court and paragraph 79 of the judgment);
4. Decides to strike the
applications out of its list of cases in so far as they relate to the
complaints declared admissible under point 2, in accordance with
Article 37 § 1 (c) of the Convention.
Done in English, and notified in writing on 19 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech
Garlicki Registrar President
