GC v The Commissioner of the Police of the Metropolis  UKSC 21 (18 May 2011)
On 18 May 2011 the Supreme Court of the United Kingdom handed down a judgment which considered whether a provision in the Police and Criminal Evidence Act 1984 (PACE) which provided that DNA samples "may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime" could be interpreted compatibly with art 8 of the European Convention of Human Rights and if not, whether police acts of retaining DNA data permanently, were unlawful.
Section 64 of PACE, as originally enacted, provided for the collection of fingerprints and other DNA samples and that such samples must be destroyed as soon as practicable after the conclusion of the proceedings if the person suspected of an offence is cleared of the offence. Given concerns that destroying DNA data could inhibit the investigation and prosecution of other offences, s 64(1)(a) of PACE was enacted to provide that data may be retained after it has fulfilled the purposes for which is was obtained but shall not be used for any purpose except for purposes related to the prevention or detection of crime.
However, PACE does not specify any time limit for the retention of the data or any procedure to secure its destruction if it was not to be retained indefinitely. These matters are addressed in guidelines issued by the Association of Chief Police Officers. The guidelines give Chief Officers the discretion to authorise the release of any specific data entry on the police national database and are responsible for the authorisation of the destruction of data. The guidelines suggest that this discretion should only be exercised in exceptional cases such as where the original arrest was found to be unlawful.
Subsequent to the guidelines, the European Court of Human Rights (ECHR) held that the “blanket and indiscriminate nature of the power of retention” provided for by the guidelines failed to 'strike a fair balance between the competing public and private interests' and that the retention at issue before the ECHR was a disproportionate interference with the applicant's rights to respect for private life and could not be regarded as necessary in a democratic society.
Whilst the guidelines were under review at the time of these proceedings, they had not been revised. These proceedings arise from two applications for judicial review of the retention of DNA data on the grounds that in light of the ECHR's decision, such retention was unlawful, being incompatible with the Human Rights Act 1998 (UK).
The respondent in the proceeding argued that under s 64(1)(a) of PACE, the police had a power which, save in exceptional circumstances, must be exercised so as to retain all data indefinitely. As such, section 64(1)(a) cannot be read or given effect to so as to permit the power to be exercised proportionately in a way described by the ECHR and the guidelines reflected this position. It was not put, however, that s 6(2)(a) of the Human Rights Act was at play because it was accepted that there was a discretion, but limits as to how the discretion should be exercised.
In support of this position, it was argued that to require the police to comply with the Human Rights Act, or the European Convention of Human Rights, would defeat the statutory purpose of establishing a scheme for the protection of the public interest free from the limits and protections required by these instruments. It would, in effect, re-write the statutory provision in a manner inconsistent with the fundamental feature of the legislative scheme which is that instead of being destroyed, data taken from all suspects shall be retained indefinitely. As such, Parliament must have intended that the discretion conferred by s 64(1)(a) of PACE should be exercised to promote the statutory policy that data from all suspects in connection with the investigation should be retained indefinitely.
Secondly, it was argued that to read the guidelines compatibly with the Human Rights Act would require the Court to undertake a statutory amendment which is something that should be left to Parliament.
The majority of the Court resolved the issue by construing s 64(1)(a) of PACE, including its statutory purpose, and determining whether the provision can be interpreted compatibly with the Human Rights Act and therefore the Convention. The Court found that the provision could be read compatibly as the discretion provided by s 64(1)(a) of PACE must be exercised to enable the data to be used for the statutory purpose but in a way which is proportionate and rationally connected to the achievement of those purposes. It particular, the Court considered that s 3 of the Human Rights Act imposes a duty on the public authority, insofar as it is possible to do so, to give effect to the power conferred on it in a way which is compatible with Convention rights. Whilst Parliament had not prescribed the essential elements of the scheme by which the statutory purposes were to be promoted, the Court found that the use of the word "may" was not an obvious way of expressing an intention that all samples should be retained indefinitely, in a disproportionate manner inconsistent with the Convention.
As to the appropriate order, the Court considered it appropriate to grant a declaration that the present guidelines are unlawful since they are incompatible with the Human Rights Act. The Court noted that if Parliament does not produce revised guidelines within a reasonable time then the appellants will be able to seek judicial review of the continuing retention of their data under the unlawful guidelines and that their claims will be likely to succeed.
The decision is at http://www.bailii.org/uk/cases/UKSC/2011/21.html.
Monique Carroll is a Senior Associate with Allens Arthur Robinson.