Commissioner of Police of the Metropolis

The incorporation of certain Articles of the European Convention on Human Rights (ECHR) into domestic law, by way of the Human Rights Act 1998 (HRA), has led to a significant change in the way the courts have tackled the protection of human rights in the United Kingdom. 1 Specific rights of individuals enshrined in the HRA, and powers conferred upon the courts to interpret legislation in compliance with Convention rights (CR) has meant that an increasing number of judicial review cases concerning breaches of CR by public authorities have come before the courts.

One such case which highlights the growing importance of human rights protection in the UK is GC & C v Commissioner of Police of the Metropolis3 (GC), which was an action brought by two individuals, Gc and C, who argued that the contentious policy of the Association of the Chief Constables of Police (ACPO) of indefinite retention of biometric samples, DNA and fingerprints, breached their right of privacy in accordance with Article 8 of the ECHR.

This particular case has relevant points of public interest which serve to enlighten us on the way the UK courts have interpreted the HRA, yet cannot give us a full indication of how and to what extent human rights have been protected in the UK. Thus, in this work, we will focus primarily on Article 8 of the ECHR and, using the above mentioned case as our basis, the doctrine of proportionality, which has become an essential component in the reasoning of the courts regarding human rights.

Prior to the HRA coming into force in October of 2000, the right to privacy under English law was ill-defined and relatively non-existent, as the judgment of Bingham LJ in Kaye v Robertson4 shows. Even after the HRA came into force, the qualified right that is Article 8 was little understood, with the question of what constitutes a right to privacy not being fully decided upon either in the moral or legal sense. 5 Finally, in the influential series of cases Douglas v Hello! Ltd6, the right to privacy was established in light of the HRA, albeit not in any form of tort as is witnessed in the USA.

However, these cases concerned the breach of an individual's privacy by another individual, and the courts have been more reluctant to rule in favor of the claimant where the breach has been conducted by a public authority, which has led to various conflicting judgments. 7 This has been due to the fact that, when deciding upon any alleged infringement of an individual's Article 8 rights by a public authority, courts have applied as the standard of review, the doctrine of proportionality.

Although more beneficial to an individual claimant than Wednesbury irrationality, it has meant that when courts have weighed the rights of privacy of an individual with the overall benefit to crime prevention and public safety, the latter has usually triumphed. 8 The European Court of Human Rights (ECtHR) has on many occasions lambasted this bias by ruling in favor of individual claimants in cases such as S and Marper v United Kingdom9(S), where the blanket indefinite retention of DNA by a public authority was deemed to be in breach of Article 8.

This decision of the ECtHR was in direct contrast to R(S) v Chief Constable of the South Yorkshire Police Regina10 (Marper), where the House of Lords did not consider that any breach of Article 8 had occurred. In fact, the ECtHR in its obiter judgment in S remarked that the UK has the highest rate of indefinite DNA retention per capita amongst all signatories to the ECHR. The High Court in GC refused to discuss the merits of the case, instead focusing on the legal question of precedent.

The defendant counsel contended that the court was bound by the decision of the House of Lords in Marper, and not the latter case of S with which both Moses LJ and Wyn Williams J agreed, citing Kay v London Borough of Lambeth. 11 In GC, both claimants were arrested but not convicted of an offence, thus it should follow that in accordance with the principles laid out in S, the samples acquired from them should be destroyed, as is the common policy in most jurisdictions across Europe.

'The pivot of a database which infringes personal liberty should always be a conviction rather than an arrest. '12 Though, following the decision of S, several white papers13 were published to make UK policy more consistent with the EU, the relative unwillingness of Parliament to amend the necessary legislation, the Police and Criminal Evidence Act 198414, has meant a continuing non-compliance with Article 8.

Although those in favor of indefinite retention powers argue that the UK, being a dualist state, need not take its cue from the ECtHR, issues such as biometric samples retention and prisoner voting do create a certain amount of friction between London and Strasbourg. 15 The GC case was granted leapfrog appeal to the Supreme Court and was recently heard before a seven judge panel. Judgment is yet to be made, however it is likely that the court will follow the ECtHR in S, giving extra impetus to Parliament to amend the existing laws. This will surely be progress in the protection of human rights in the UK, which has been slowly lagging behind that of Europe.

Bibliography

Baker, Christopher (ed). Human Rights Act 1998: A Practitioner's Guide (London: Sweet & Maxwell, 1998) Hoffman, David, and John Rowe. Human Rights in the UK, 2nd ed. (Dorchester: Pearson, 2006) Irvine, Alexander A. Human Rights, Constitutional Law and the Development of the English Legal System (Portland: Hart Publishing, 2003) Le Sueur, Andrew, Maurice Sunkin, and Jo E. Murkens. Public Law: Text, Cases and Materials (New York: Oxford University Press, 2010)