Regina v. Chief Constable of South Yorkshire Police (Respondent) ex parte LS (by his mother and litigation friend JB) (FC) (Appellant)Regina v. Chief Constable of South Yorkshire Police (Respondent) ex parte Marper (FC)(Appellant) Consolidated Appeals

The retention of lawfully obtained fingerprints, DNA profiles and samples after an acquittal or discontinuance does not, according to the majority, engage article 8(1). Any interference is modest and is justified under article 8(2) by the legitimate and proportionate aims of preventing, detecting and prosecuting crime and exculpating the innocent.

Retention does not breach article 14. The historical fact that the police already possess lawfully obtained material is not a personal status, and people from whom samples have and have not been taken are not analogous comparators. A policy of retaining such material except in exceptional circumstances lawfully exercises the statutory discretion.

The first appellant, an 11-year-old of previous good character, was acquitted of attempted robbery after his fingerprints and samples had been taken. The second appellant, also of good character, had provided fingerprints and samples after being charged with harassment. His prosecution was later discontinued. South Yorkshire Police refused their requests for destruction under a policy of retaining lawfully obtained material except in exceptional circumstances.

The Divisional Court dismissed their judicial review claims: [2002] EWHC 478 (Admin). A majority of the Court of Appeal upheld that result, although Sedley LJ dissented concerning the exercise of the Chief Constable's discretion: [2002] EWCA Civ 1275; [2002] 1 WLR 3223.

The consolidated appeals concerned the compatibility of section 64(1A) of the Police and Criminal Evidence Act 1984 with articles 8 and 14 of the European Convention on Human Rights, the distinction between DNA profiles and physical samples, and the lawfulness of the Chief Constable's retention policy.

1. Disposition. The House unanimously dismissed both appeals. Lord Steyn delivered the leading speech. Lord Rodger, Lord Carswell and Lord Brown agreed with it. Baroness Hale agreed with the result and all other issues but differed on whether retention engaged article 8(1).

2. Article 8(1). Per Lord Steyn, for the majority of four, retention of lawfully obtained fingerprints, DNA profiles and samples did not itself engage the right to respect for private life. The material was securely held, was unintelligible without expertise and a comparator, and could be used only for specified criminal justice purposes. Any interference was, at most, very modest. The Convention required a uniform interpretation informed by Strasbourg jurisprudence rather than differing national cultural attitudes.

   Baroness Hale considered retention to be an interference with informational privacy. Samples were retained solely for the information contained in them, and state access to private information could interfere with privacy without further use. She nevertheless agreed that the interference was justified.

3. Article 8(2). Per Lord Steyn, with the agreement of the whole House on this alternative basis, any interference was in accordance with law and objectively justified. Retention pursued the prevention and detection of crime, effective investigation and prosecution, the exculpation of innocent people and the correction of miscarriages of justice. The statutory restrictions, lack of public access, need for a comparator and substantial benefits of a larger database made the scheme proportionate. A case-by-case inquiry into whether an acquitted person remained under suspicion was impractical, risked stigma and would materially reduce those benefits. The distinction between DNA profiles and physical samples did not alter the legal conclusion.

4. Statutory construction. Per Lord Steyn, section 64(1A) of the Police and Criminal Evidence Act 1984 limited use to purposes related to crime prevention, detection, investigation and prosecution. The words “purposes related to” also permitted exculpatory comparisons, criminal appeals and investigations into miscarriages of justice. If necessary, section 3 of the Human Rights Act 1998 required that Convention-compatible construction.

5. Article 14. Per Lord Steyn, the difference between people whose samples were already lawfully held and other citizens rested on historical fact, not a personal status. The groups were not in analogous situations. Alternatively, the difference was objectively justified by the legitimate and proportionate criminal justice aims. Lord Carswell separately emphasised that this was a direct-discrimination claim; the special comparator-pool analysis applicable to indirect discrimination did not apply.

6. Police policy. Per Lord Steyn, the policy of retaining lawfully obtained material as the norm while permitting destruction in exceptional circumstances did not unlawfully fetter discretion. The suggested examination of the circumstances of every discontinued or unsuccessful prosecution was unrealistic and invidious. The policy was lawful.

1. House of Lords: Dismissed the consolidated appeals unanimously: [2004] UKHL 39.
2. Court of Appeal: By a majority, upheld the Divisional Court's dismissal of the claims; Sedley LJ dissented concerning the Chief Constable's discretion: [2002] EWCA Civ 1275; [2002] 1 WLR 3223.
3. Divisional Court: Dismissed both applications for judicial review, holding that retention contravened neither article 8 nor article 14 and that the Chief Constable's policy was lawful: [2002] EWHC 478 (Admin).