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

A statutory power permitting the police to retain biometric data does not require blanket and indefinite retention merely because Parliament intended to create a greatly expanded database. The discretion must promote the statutory purposes and be exercised rationally, proportionately and compatibly with article 8.

Guidelines which ordinarily retain indefinitely the fingerprints, DNA samples and profiles of persons suspected but not convicted are unlawful. Where Parliament is already considering a replacement regime, the court may declare the guidelines unlawful while withholding mandatory deletion or destruction orders for a reasonable period.

Two appellants sought judicial review after the Metropolitan Police refused, under the Association of Chief Police Officers guidelines, to destroy biometric data obtained following their arrests. One appellant was not charged. The other was acquitted after the prosecution offered no evidence.

The Divisional Court dismissed both claims because it was bound by R (S) v Chief Constable of the South Yorkshire Police; R (Marper) v Chief Constable of the South Yorkshire Police [2004] UKHL 39, notwithstanding the contrary decision of the European Court of Human Rights. It certified both cases for leapfrog appeals under the Administration of Justice Act 1969.

It was common ground before the Supreme Court that indefinite retention interfered disproportionately with article 8 rights and that the earlier House of Lords decision could not stand. The central issue was the appropriate remedy and, in particular, whether Police and Criminal Evidence Act 1984, section 64(1A), could be read and given effect compatibly with the Convention.

1. By a majority, the appeals were allowed. The present Association of Chief Police Officers guidelines were declared unlawful because their blanket and indefinite retention policy was incompatible with article 8. No further relief was granted. Lord Dyson delivered the leading judgment. Lord Phillips, Lady Hale, Lord Judge and Lord Kerr agreed with the proposed order. Lord Rodger and Lord Brown dissented on the appropriate relief.

2. Section 64(1A) of the Police and Criminal Evidence Act 1984 confers a permissive power to retain fingerprints and samples for specified crime-related purposes. Parliament intended to remove the former destruction requirement and facilitate a greatly expanded database. It did not require the indefinite and indiscriminate retention of data from every suspect save in exceptional cases. Neither indefinite nor indiscriminate retention was a fundamental feature of the legislation: per Lord Dyson at paras 23–35; Lord Phillips at paras 54–60; Lady Hale at paras 66–72; Lord Judge at paras 79–81; and Lord Kerr at paras 83–90.

3. The discretion must advance the statutory purposes and be exercised rationally and proportionately. A Convention-compliant scheme could therefore be adopted without contradicting the statute’s language, policy or substance. Section 6(2)(b) of the Human Rights Act 1998 did not protect continued operation of the incompatible guidelines. Section 64(1A) itself was not incompatible, so a declaration of incompatibility was unwarranted.

4. The House of Lords decision in R (S) v Chief Constable of the South Yorkshire Police; R (Marper) v Chief Constable of the South Yorkshire Police [2004] UKHL 39 could no longer be treated as authoritative. The European Court of Human Rights had established that blanket and indiscriminate retention of the biometric data of persons suspected but not convicted failed to strike a fair balance and disproportionately interfered with private life.

5. Section 8(1) of the Human Rights Act 1998 gave the court a wide remedial discretion. As Parliament was already considering replacement legislation, a declaration that the guidelines were unlawful was just and appropriate. The court declined to order immediate destruction of data which a forthcoming lawful scheme might permit the police to retain. If no lawful replacement appeared within a reasonable time, continuing retention would remain open to judicial review and a challenge would be likely to succeed.

6. Lord Rodger and Lord Brown would instead have held that indefinite retention was a fundamental statutory purpose, that section 6(2) protected the police while they gave effect to the legislation, and that the appropriate remedy was, at most, a declaration that section 64(1A) was incompatible with article 8.

1. United Kingdom Supreme Court: By a majority, allowed the leapfrog appeals and declared the Association of Chief Police Officers guidelines unlawful because they were incompatible with article 8. The court granted no further relief: [2011] UKSC 21.
2. Divisional Court of the High Court: Dismissed both judicial review claims because it was bound by the House of Lords decision in Marper. It granted certificates under section 12 of the Administration of Justice Act 1969 permitting leapfrog appeals: [2010] EWHC 2225 (Admin).