UK police who indefinitely retained in their records the DNA profile of a man convicted of drink-driving breached his human rights, Strasbourg judges have ruled.
The ruling by the European court of human rights (ECHR) over Fergus Gaughran’s claim presents a significant challenge for police data storage practices in the UK.
Gaughran, 47, from Newry, had complained that the Police Service of Northern Ireland’s continued retention of his DNA profile (the digital record of his DNA sample), fingerprints and a photograph was a breach of his privacy.
His lawyers objected to the fact there was no realistic opportunity for him to review the PSNI’s decision to keep the material and argued it constituted a breach of article 8 of the European convention on human rights, which guarantees a right to respect for a person’s private and family life.
Gaughran was arrested for drink-driving in 2008 and pleaded guilty at Newry magistrates court. He was disqualified from driving for a year.
Delivering their decision, the seven Strasbourg judges noted that the majority of member states in the Council of Europe had regimes that time-limited the retention of biometric data. The UK is one of the few jurisdictions to permit indefinite retention of DNA profiles.
The judges said Gaughran’s biometric data had been held without reference to the severity of his offence. The UK’s regulations failed to strike a fair balance between competing public and private interests, the ECHR concluded.
The judgment said: “Having chosen to put in place a regime of indefinite retention, there was a need for the state to ensure that certain safeguards were present and effective for the applicant, someone convicted of an offence (now spent).
“However, the applicant’s biometric data and photographs were retained without reference to the seriousness of his offence and without regard to any continuing need to retain that data indefinitely. Moreover, the police are vested with the power to delete biometric data and photographs only in exceptional circumstances.
“There is no provision allowing the applicant to apply to have the data concerning him deleted if conserving the data no longer appeared necessary in view of the nature of the offence, the age of the person concerned, the length of time that has elapsed and the person’s current personality.
“... the [ECHR] finds that the indiscriminate nature of the powers of retention of the DNA profile, fingerprints and photograph of the applicant as a person convicted of an offence, even if spent, without reference to the seriousness of the offence or the need for indefinite retention and in the absence of any real possibility of review, failed to strike a fair balance between the competing public and private interests.”
The decision reverses a UK supreme court judgment in 2015. In that ruling, Lord Clarke had declared: “The potential benefit to the public of retaining the DNA profiles of those who are convicted is considerable and outweighs the interference with the right of the individual.”
Les Allamby, the head of the Northern Ireland human rights commission, said: “We welcome the judgment ... The court held that the indiscriminate nature of the powers of retention of the DNA profile, fingerprints and photograph in the circumstances of this case had failed to strike a fair balance. It held it was disproportionate given the lack of any relevant safeguards, including the absence of any real review.
“The commission has engaged extensively and productively with the Police Service of Northern Ireland towards publishing a clear and public policy on the retention of biometric material, including provision for review. The policy will have to take on board the judgment as soon as possible. Our preference beyond this will be to see legislation put in place that effectively ensures the safeguards envisaged by the [ECHR] are enshrined in law.”
Chief constable James Vaughan, the National Police Chiefs’ Council lead for forensics, said: “We will work with the government to consider the judgment of the European Court of Human Rights.”
The biometrics commissioner is responsible for holding police to account and regularly reviews the retention and use by police of biometrics such as DNA and fingerprints.
A Home Office spokesperson said: “We note the outcome of this case and are carefully considering the details.”