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Police DNA retention ruled lawful by NI High Court

Human rights court ruling trumped

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Northern Ireland's High Court of Justice has ruled that police retention of a 14-year-old boy's DNA was not illegal, despite a European Court of Human Rights ruling that the blanket data retention policy conflicts with human rights law.

The Court said that it could not follow the ruling from the European Court of Human Rights (ECHR) because an earlier ruling by the House of Lords conflicted with it. Mr Justice McLoskey said in the ruling that this verdict was necessary even though it was the Northern Irish Court's view that the retention was in conflict with human rights law.

"By virtue of the doctrine of precedent, it is incumbent on this court to give effect to the decision of the House of Lords... with the result that the first limb of [the boy's] challenge cannot succeed," said the ruling.

The House of Lords ruled in a case involving an anonymous man known as S and Michael Marper in 2004. That Court said that the automatic retention by police forces in England and Wales of DNA samples did not interfere with citizens' rights to privacy as guaranteed by the European Convention on Human Rights, which became UK law in the Human Rights Act.

When it heard the case the Strasbourg-based ECHR, which rules on the application of the Convention, said that the "blanket and indiscriminate" retention of data was a "disproportionate interference with the applicants' right to respect for private life".

The Northern Irish Court said that it had to follow the ruling of the House of Lords, though, and not the ruling of the ECHR, which is not binding.

The case involved the arrest in relation to a burglary offence of an anonymous 14-year-old boy. He was not charged with the crime and his data was due to be kept by police for seven years with possible extensions for longer.

Mr Justice McLoskey said that it was bound by the House of Lords ruling to say that the retention was lawful. This was despite the fact that he and his fellow judges disagreed with that application of Article 8 of the Convention, which is the section guaranteeing the right to a private life, to the photographs taken of the boy.

"Applying the objective test of reasonable expectation, it is not in dispute that such expectation would encompass the photographing of [the boy] following his arrest," he said. "Furthermore, we consider that this expectation must embrace the retention of the photographic images for some period of time. Photographs serve no purpose unless they are retained."

"The lengthy, perhaps indefinite, retention by the police of the Applicant's photographic images seems incompatible with the broad and elastic formulations of the scope of Article 8(1) [of the ECHR]," he said. "As each person grows older, photographic images of their appearance at an earlier age will increasingly belong to their inner, private sanctum."

"The court is of the opinion that a person's physical appearance falls within the personal sphere protected by Article 8, as it is a means of identifying the individual and forging a link between the individual and exclusively private aspects of his life, including family membership and other matters and activities properly to be regarded as falling outwith the public gaze and belonging to a person's private sphere.

"The photographic images of the Applicant go further than simply displaying his physical appearance at a particular age: they disclose that he was in police custody when a young teenager. Thus they contain, and convey, both his physical appearance and the fact of police arrest and detention (Lord Nicholls' "thousand words")," he said.

"But for [the House of Lords] decision and our analysis of it, we consider that there is substantial force in the view that the retention of the Applicant's photographic images by the Police Service for a minimum period of seven years, which may be extended indefinitely, unconnected in any concrete or rational way with any of the statutory purposes, interferes with his right to respect for private life guaranteed by Article 8(1)," he said.

The Government had planned to allow the retention of police-gathered DNA data for 12 years but in 2009 said that it would change that in many cases to six years.

The Northern Irish Court did not permit an appeal of the case to the Supreme Court because, it said, a ruling on a similar case which would clarify the law on the issue is due soon.

"The case highlights a clear judicial tension between the approach of the UK courts and the ECHR," said privacy law expert William Malcolm of Pinsent Masons, the law firm behind OUT-LAW.COM. "The UK Government has already had to consider and react to the decision in the Marper case, with some commentators taking the view that the Government did not change its original plans enough bring it within the ECHR ruling.

"It will be interesting to see whether or not individuals challenge the specific capture of information by law enforcement authorities in Northern Ireland and whether or not the Northern Ireland Executive will have to contend with similar issues to those which the Government had to consider when looking at the Marper case," he said.

See: The ruling

Copyright © 2010, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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