R (S) v Chief Constable of the South Yorkshire Police (R (Marper) v Chief Constable of the South Yorkshire Police)

The retention of fingerprints and DNA material lawfully taken during a criminal investigation engages Article 8(1), but the interference is justified under Article 8(2) where retention is confined to crime prevention, investigation and prosecution. The scheme is proportionate because it increases the value of the police database without authorising unrestricted use. Article 14 does not require equal treatment of people from whom samples have lawfully been taken and people from whom they have not. The statutory discretion to retain normally favours retention, subject to exceptional circumstances and Convention-compliant use.

Two judicial review claims concerned a child, S, and Michael Marper. Their fingerprints and DNA samples had been taken during criminal investigations which ended without conviction: S was acquitted and proceedings against Mr Marper were discontinued. The Divisional Court, comprising Leveson J and Lord Justice Rose, dismissed both claims, holding that retention did not contravene Articles 8 or 14 and that the Chief Constable had not unlawfully exercised his discretion.

On appeal, the Court of Appeal considered whether amended section 64 of the Police and Criminal Evidence Act 1984, as amended by section 82 of the Criminal Justice and Police Act 2001, authorised Convention-compliant retention and whether the Chief Constable’s policy was lawful.

1. The appeals were dismissed. Retention of fingerprints and DNA samples, distinct from their initial taking, interfered with Article 8(1). The interference was real but limited.
2. Per Lord Woolf CJ, the retention was in accordance with the law and pursued the legitimate aims of preventing and detecting crime, investigating offences and conducting prosecions. Section 64 of the Police and Criminal Evidence Act 1984, as amended by section 82 of the Criminal Justice and Police Act 2001, confined use to those purposes. The increased value of a larger database justified the limited intrusion, and the interference was proportionate. Waller LJ agreed, stressing the benefits of retaining samples for checking database integrity, improving profiles, investigating miscarriages of justice and detecting analytical errors.
3. The retention scheme did not contravene Article 14. The relevant distinction was between people from whom fingerprints or samples had lawfully been taken and those from whom they had not. Treating those groups differently was objectively justified. Lord Woolf CJ and Waller LJ rejected a requirement that the Chief Constable assess degrees of innocence or suspicion.
4. The statutory power to retain was a discretion, not a duty. It had to serve the prevention and detection of crime. A policy of normal retention with exceptions for exceptional circumstances was lawful and consistent with British Oxygen [1971] AC 610. An undertaking to destroy material could justify an exception.
5. Sedley LJ agreed in the result but differed on the discretion. He considered that section 3 of the Human Rights Act 1998 required destruction where conscientious consideration showed that suspicion had been wholly unjustified or completely refuted. The majority did not adopt that qualification.
6. Future scientific developments or novel uses of DNA material would require separate consideration and must remain within the statutory purposes and Convention requirements. The respondents’ costs were awarded, subject to the appellants’ liability being amended to nil; permission to appeal to the House of Lords was refused.

• Court of Appeal: dismissed the appeals and upheld the Divisional Court’s dismissal of the judicial review applications.
• Divisional Court: Leveson J, sitting with Lord Justice Rose, dismissed the applications on 22 March 2002.