Gaughran v Chief Constable of the Police Service of Northern Ireland

Indefinite police retention of the DNA profile, fingerprints and photograph of an adult convicted of a recordable offence interferes with private life under article 8(1) of the Convention. The interference may nevertheless be justified under article 8(2).

A policy limited to convicted adults and recordable offences was proportionate. The public benefits for detecting and excluding suspects outweighed the relatively slight intrusion. The seriousness of the offence, safeguards on use, the absence of European consensus and the distinction between DNA profiles and samples supported that conclusion. A spent conviction is potentially relevant but does not determine whether retention is lawful.

Following his conviction for driving with excess alcohol, the appellant sought judicial review of the Police Service of Northern Ireland's policy of retaining indefinitely his DNA profile, fingerprints and photograph. The lawfulness of taking the material was not disputed, and the appeal proceeded on the basis that his underlying DNA sample would be destroyed when the relevant provisions of the Criminal Justice Act (Northern Ireland) 2013 came into force.

The Divisional Court dismissed the application in [2012] NIQB 88. It held that the interference with private life was justified under article 8(2) of the Convention. The central issue before the Supreme Court was whether indefinite retention of the identifying material of an adult convicted of a recordable offence was proportionate.

1. By a majority, the appeal was dismissed. Lord Clarke, with whom Lord Neuberger, Lady Hale and Lord Sumption agreed, held that indefinite retention of the appellant's DNA profile, fingerprints and photograph interfered with his right to respect for private life under article 8(1). The interference pursued the legitimate aims of detecting and preventing crime. The decisive question was whether it was proportionate under article 8(2).

2. The four-stage proportionality analysis stated in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 applied. The prevention and detection of crime was sufficiently important. Retaining identifying material from convicted persons was rationally connected with that objective. It assisted the investigation of future and historic offences and could also eliminate an individual from suspicion.

3. S and Marper v United Kingdom [2008] ECHR 1169 did not establish that blanket retention of convicted persons' data was unlawful. That decision concerned suspected but unconvicted persons. The present policy applied to adults convicted of recordable offences and concerned a DNA profile rather than the more information-rich DNA sample. Those distinctions were important.

4. The interference was relatively slight. Statute restricted the purposes for which the material could be used, access was controlled, and the material was objective identifying information. Recordable offences provided a rational threshold. Driving with excess alcohol was serious and punishable by imprisonment notwithstanding the modest sentence actually imposed.

5. The wide variety of retention periods among European states showed an absence of consensus and broadened the permissible margin of appreciation. Retention until death or effectively until death differed little in practical terms from indefinite retention. Although the domestic court had to decide proportionality for itself, the Northern Irish policy struck a fair balance and was justified.

6. The fact that a conviction became spent was potentially relevant but not decisive. The Rehabilitation of Offenders (Northern Ireland) Order 1978 regulated disclosure of convictions rather than retention of identifying information.

7. Lord Kerr dissented. He considered that the necessary rational connection had not been demonstrated by evidence, that less intrusive and more targeted arrangements were feasible, and that the blanket policy failed to strike a fair balance. He would have allowed the appeal and declared the policy incompatible with article 8.

1. United Kingdom Supreme Court: By a majority, dismissed the appeal and answered the certified question in the negative: [2015] UKSC 29 .
2. Divisional Court of Northern Ireland: Refused the application for judicial review, holding that indefinite retention was justified under article 8(2): [2012] NIQB 88.