GC & C v Commissioner of Police of the Metropolis

A first-instance court is bound by a prior House of Lords decision unless a recognised exception to precedent applies. A later judgment of the European Court of Human Rights does not, by itself, permit a lower domestic court to depart from inconsistent House of Lords authority. Any reconsideration of that conflict is for the Supreme Court. The same principle applies where the issue concerns proportionality or the exercise of a statutory power. The court may decline to determine separate Article 8 issues, including retention of arrest photographs and police computer records, where the evidential foundation is inadequate.

Two claimants sought judicial review of the Metropolitan Police policy of retaining DNA samples, fingerprints and related records indefinitely unless exceptional circumstances existed. Neither claimant had been convicted of the relevant alleged offence. They argued that the policy breached Article 8 of the European Convention on Human Rights, relying on the later Strasbourg decision in S and Marper v United Kingdom.

The defendant and the Secretary of State relied on the earlier House of Lords decision in Regina (S) v Chief Constable of South Yorkshire Police; Regina (Marper) v Chief Constable of South Yorkshire Police. The central issue was whether the Administrative Court was bound by that domestic decision notwithstanding the later Strasbourg judgment.

1. The applications for judicial review were dismissed. The court granted permission for a leapfrog appeal to the Supreme Court.
2. The House of Lords had unanimously held that the previous biometric-retention policy did not breach Article 8. The majority view was that Article 8(1) was not engaged; alternatively, any interference was modest and justified under Article 8(2). The House of Lords also rejected a requirement for case-by-case consideration of each person's circumstances.
3. The later decision of the European Court of Human Rights in S and Marper v United Kingdom could not be reconciled with the House of Lords decision. It held that the Administrative Court remained bound by the domestic decision. The doctrine of precedent and legal certainty required that result.
4. Following K & Ors v Lambeth Borough Council, the fact that the parties had also litigated in Strasbourg did not create an exception. Nor did the fact that the issue involved proportionality or discretion. Any reconsideration arising from changed circumstances or the Strasbourg decision was for the Supreme Court.
5. The court expressed no view on the underlying merits. The evidence and argument had been directed principally to the precedent issue.
6. The retention of arrest photographs raised a distinct issue. Wood v Commissioner of Police for the Metropolis did not establish that Article 8 applied to photographs taken on arrest and suggested the contrary. In any event, the Commissioner had not had a proper opportunity to provide evidence justifying retention.
7. The challenge to information retained on the Police National Computer was also not separately determined. The court considered that, if the blanket approach was justified for biometric samples under the binding House of Lords authority, retention of the related information was equally justifiable for that reason.

First-instance judicial review proceedings. The judgment records that permission for a leapfrog appeal to the Supreme Court was granted.