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

The appeals concerned the compatibility of section 64(1A) of the Police and Criminal Evidence Act 1984 (as inserted by section 82 of the Criminal Justice and Police Act 2001) with the European Convention on Human Rights (as scheduled to the Human Rights Act 1998), in particular Article 8 (private life) and Article 14 (prohibition of discrimination). The House considered whether the retention of fingerprints, DNA profiles and DNA samples after acquittal or discontinued proceedings interfered with Article 8 and, if so, whether such interference was justified as "in accordance with the law" and proportionate under Article 8(2). The House also examined whether the retention policy amounted to discrimination for the purposes of Article 14 and whether the Chief Constable's general policy of retaining material in all but exceptional cases unlawfully fettered discretion.

The House accepted the significant public interest in retaining and using such material for the prevention, detection and prosecution of crime and, applying proportionality, concluded that the statutory scheme and the Chief Constable's policy were lawful and compatible with Articles 8 and 14. The Court addressed the distinction between DNA samples (physical material) and DNA profiles (digitised information), considered the limits on use imposed by statute, and rejected the appellants' submissions that section 64(1A) was incompatible with Convention rights or that the police policy unlawfully fettered discretion.

Background and parties:

• The appeals were consolidated judicial-review challenges by S (a child acquitted of attempted robbery) and Mr Marper (a man whose harassment charge was discontinued) against the Chief Constable of South Yorkshire Police and the Home Secretary.
• Both appellants sought quashing of the police policy to retain fingerprints/samples, declarations of incompatibility with Articles 8 and 14, and orders for destruction of material retained.

Procedural history:

• The applications originated in the Divisional Court (Leveson J and Rose LJ) which rejected the challenges ([2002] EWHC 478 (Admin)).
• They proceeded to the Court of Appeal (majority for the police, Sedley LJ dissenting) ([2002] 1 WLR 3223).
• The appeals came to the House of Lords, which heard argument on Article 8 and 14 issues, the distinction between DNA samples and profiles, the interpretive duties under the Human Rights Act 1998 (sections 3 and 4), and the lawfulness of the Chief Constable's policy.

Issues before the House:

1. Whether retention of fingerprints, DNA profiles and samples is an interference with Article 8(1) and, if so, whether justified under Article 8(2).
2. Whether a legal distinction should be drawn between retention of DNA profiles and retention of physical DNA samples.
3. Whether retention amounted to discrimination contrary to Article 14.
4. Whether section 64(1A) could be read compatibly with Convention rights under section 3 HRA, or whether it should be declared incompatible under section 4 HRA.
5. Whether the Chief Constable's blanket retention policy unlawfully fettered discretion.

Court's reasoning (concise):

• The House examined Strasbourg jurisprudence and Commission decisions, but emphasised deference to Parliament's policy choice in enacting retention provisions (section 82 Criminal Justice and Police Act 2001) which ended the prior general destruction rule under section 64 PACE.
• On Article 8, Lord Steyn concluded that retention of fingerprints and samples did not, in his view, engage Article 8(1) or, if it did, any interference was modest and objectively justified. Other Law Lords (Baroness Hale) considered retention to be an interference but accepted it was justified under Article 8(2) on proportionality grounds.
• The court accepted the scientific distinction between DNA profiles (digitised STR profile used for identification) and physical samples, but found statutory limits and safeguards, and concluded present uses are confined to crime-related purposes.
• On Article 14, the House held the difference in treatment was not based on a proscribed "status" and, in any event, was objectively justified by the legitimate aim of crime detection and proportionate means.
• The challenge to the Chief Constable's blanket policy was rejected as impractical and unnecessary; the policy did not unlawfully fetter discretion.

Relief sought: The applicants sought quashing orders, declarations of incompatibility, mandatory destruction orders and a finding that the retention policy was unlawful. The House dismissed the appeals and refused the relief sought.

Appeals dismissed. The House held that retention and use of fingerprints, DNA profiles and samples under section 64(1A) PACE (as inserted by section 82 Criminal Justice and Police Act 2001) were compatible with Articles 8 and 14 of the European Convention on Human Rights; any interference with Article 8 was, on the facts and statutory limits, justified under Article 8(2). The Court further held that the Chief Constable's policy of retaining material in all but exceptional cases was lawful and did not amount to unlawful fettering of discretion.

Divisional Court: R (S) v Chief Constable of South Yorkshire Police and the Secretary of State for the Home Department; R (Marper) v Chief Constable of South Yorkshire Police and the Secretary of State for the Home Department [2002] EWHC 478 (Admin). Court of Appeal (majority): Regina (S) v Chief Constable of the South Yorkshire Police; Regina (Marper) v Chief Constable of South Yorkshire Police [2002] 1 WLR 3223 (reported from [2002] EWCA Civ 1275). Appeal to House of Lords: [2004] UKHL 39.