Human Rights Commission secures settlement in DNA fingerprint retention case

Human Rights Commission secures settlement in DNA fingerprint retention case

The Human Rights Commission has settled a case on DNA Retention taken against the Police Service of Northern Ireland (PSNI). As a result the PSNI have agreed to produce a formal public policy on the retention of biometric data within the next 12 months. It will take into account human rights and will provide guidance to the public on how they can find out if their DNA or fingerprints have been retained, why this is so, and to challenge the decision if necessary.

Chief Commissioner Les Allamby stated:

“The Commission supported this case because finding out if your DNA or fingerprints are retained by the Police and the reasons why is, in our view, unnecessarily difficult.

The Commission acknowledges the importance of retaining DNA or fingerprints to assist with tackling crime. However, the Police must strike a proportionate balance when holding on to this sensitive personal material, having fully considered the individual’s right to respect for private life.

The Commission is pleased that in response to this case the PSNI will now develop a clear policy addressing biometric data retention in Northern Ireland. It will make clearer to the public why their DNA or fingerprints may be retained, on what basis this may continue, and how to go about seeking its destruction. We are encouraging a quick implementation of this settlement to ensure that human rights continues to be a central tenet of how policing is delivered.”

Notes to editors:

Facts of the case:

· In December 2017, the Commission issued judicial review proceedings against the PSNI on behalf of an individual. The individual does not wish to take part in media interviews in relation to this case.

· An individual first approached the Human Rights Commission in early 2017 regarding the refusal of the PSNI to erase fingerprints and DNA, which were retained following an arrest in 2009. The person was arrested for assault occasioning actual bodily harm after intervening to keep the peace in a neighbourhood dispute. The police accepted that the individual had been seeking to keep the peace. No charges or prosecution were brought against the person.

· In 1992, the individual was arrested and convicted of common assault and received a fine of £50. No DNA or fingerprints had been retained as a result of this case.

· The Human Rights Commission entered into correspondence with the PSNI to try and have the individuals data destroyed. The PSNI informed the Commission that they were retaining the data due to the conviction from 1992 and consequently refused to destroy it.

Commission Arguments in the Case

· The Commission argued that the decision to retain the individuals DNA/fingerprints, and the process by which it was retained, breached the right to private and family life as guaranteed by Article 8 of the European Convention on Human Rights.

· The PSNI is entitled to retain DNA, fingerprints and other material provided that their approach is governed by law and proportionate, balancing the legitimate aim of solving crime and a person’s right to privacy. The Commission’s challenge was based on the lack of a clear and accessible policy as to how to find out whether such material is held and if so how to challenge decisions to retain such material.

Settlement

· The Commission entered into settlement discussions with the PSNI from April 2018.

· In October 2018 the Human Rights Commission agreed to withdraw judicial review proceedings as the PSNI agreed:

o To destroy the individuals fingerprints and DNA material

o To produce a formal policy document on biometric data retention within 12 months of the date of final order. The policy will expressly take into account Article 8, the right to private and family life of the European Convention on Human Rights and will provide members of the public with express guidance as to how they can seek to have their biometric data destroyed;

o To make the policy available to members of the public on the PSNI website.

What is the current law/ process on DNA retention?

The current law on DNA retention in Northern Ireland is the Police and Criminal Evidence (NI) Order 1989 – otherwise known as PACE.

In 2008, in the case of S. and Marper v the United Kingdom, the European Court of Human Rights ruled that the UK’s data retention policies were in violation of Article 8. The sections of the Northern Ireland legislation (Criminal Justice Act (Northern Ireland) 2013) that were drafted to rectify this violation have still not been commenced, and are unlikely to do so until the Northern Ireland Executive and Assembly return.

In 2015, the Detail reported that 123,258 samples were held on the system by the PSNI. Additional samples held since this date are not in the public domain and no up to date figures were provided to the Commission during the course of proceedings.

The case of Gaughran v the United Kingdom, lodged in 2015, is also currently awaiting hearing at the European Court of Human Rights. The applicant complains under Article 8 of the Convention that the indefinite retention of his DNA profile, fingerprints and photograph in accordance with the blanket policy of retention of personal data of any individual convicted of a recordable offence, amounted to a disproportionate interference with the right to respect for his private and family life and could not be justified.