R (on the application of GC) (FC) v The Commissioner of Police of the Metropolis

The Supreme Court held that the Association of Chief Police Officers (ACPO) retention guidelines for biometric data, insofar as they authorised a blanket, indefinite retention of DNA profiles, samples and fingerprints, were incompatible with the right to respect for private life under Article 8 ECHR as demonstrated by the Grand Chamber decision in S and Marper v United Kingdom (2008) 48 EHRR 1169. The Court concluded that section 64(1A) of the Police and Criminal Evidence Act 1984 could be read and given effect in a way compatible with Article 8 and therefore the statutory provision itself was not declared incompatible. On remedial questions the majority granted a declaration that the existing ACPO guidelines (as amended to exclude children under ten) were unlawful and incompatible with Article 8 but declined to order deletion or destruction of data or to quash primary legislation, leaving detailed reform to ACPO or Parliament. The Court left a discrete challenge about photographs of GC undecided for lack of evidence and proper factual inquiry.

This case concerned judicial review challenges by two appellants, GC and C, to the Metropolitan Police Commissioner’s refusal to delete their biometric data (DNA samples, DNA profiles, fingerprints and in GC’s case photographs) which had been taken after arrest but where no conviction followed.

Procedural history: The Divisional Court dismissed both challenges on the basis that it was bound by the earlier House of Lords decision in R (S and Marper) v Chief Constable of the South Yorkshire Police [2004] 1 WLR 2196 and granted certificates under section 12 of the Administration of Justice Act 1969 for leapfrog appeals to the Supreme Court (see [2010] EWHC 2225 (Admin)).

Reliefs sought:

• C sought a declaration under section 8(1) HRA that retention of his data was unlawful and deletion.
• GC sought quashing of the ACPO guidelines and an order requiring reconsideration within 28 days; alternatively a human rights remedy.

Issues framed by the court: whether the indefinite, blanket retention scheme as implemented under the ACPO guidelines was an unlawful interference with Article 8 ECHR in the light of S and Marper; whether section 64(1A) PACE could be read and given effect compatibly with Article 8 under section 3 HRA; and what remedy was appropriate (declaration of incompatibility, declaration that guidelines were unlawful, orders for deletion/destruction, or other relief).

Reasoning and outcome: the Court accepted that retention under the ACPO guidelines constituted an unjustified interference with Article 8 in light of the Strasbourg judgment. The majority (Dyson LCJ, Phillips, Hale, Judge, Kerr) concluded that section 64(1A) PACE was capable of being interpreted and given effect compatibly with Article 8 and thus that section 6(2)(b) of the HRA did not bar remedy; they granted a declaration that the existing ACPO guidelines were unlawful but refused to order destruction or to declare the primary legislation incompatible, reasoning that Parliament and national authorities were seized of reform (including pending legislative measures) and that it was appropriate to allow them a reasonable period to implement a compatible scheme. The Court therefore allowed the appeals to the limited extent of declaring the ACPO guidelines unlawful and granted no further relief. A minority (Lord Rodger and Lord Brown) would have declared section 64(1A) itself incompatible and preferred a declaration of incompatibility under section 4 HRA. The Court also declined to decide the discrete issue of retention of GC’s photographs because it had not been properly argued or supported by evidence.

Wider context: the judgment emphasises the interpretative obligation in section 3 HRA, the interplay with section 6(2) HRA and the limited, cautious role of courts in prescribing specific policy solutions for sensitive national schemes where Parliament or the executive are actively engaged in reform.

Appeal allowed. The Supreme Court held that the ACPO retention guidelines (as amended to exclude children under 10) were unlawful because they authorised blanket, indefinite retention incompatible with Article 8 ECHR; however, the Court found that section 64(1A) of PACE could be read and given effect in a way compatible with Article 8 and therefore declined to declare the primary statute incompatible or to order destruction or deletion of data, leaving detailed reform to ACPO or Parliament. The Court made no substantive ruling on the photographs issue for lack of evidence.

On appeal from the Divisional Court (Moses LJ and Wyn Williams J), which dismissed the applicants' judicial review claims and certified the matters for leapfrog appeal: R (on the application of GC and C) v Commissioner of Police of the Metropolis [2010] EWHC 2225 (Admin). Certificates were granted under section 12 of the Administration of Justice Act 1969 enabling direct appeal to the Supreme Court.