JR 27’s Application  NIQB 143 (Judgment No 2) (23 December 2010)
The judgment of the Divisional Court (Morgan LCJ, Weatherup J and McCloskey J) was given by McCloskey J:
 This is an application for judicial review by a litigant to whom anonymity has been granted, by virtue of his age. The factual matrix, which is uncontentious, can be stated in brief compass. The Applicant is aged fourteen years. On 7th October 2008, he was arrested by the police by reason of his suspected involvement in a burglary. At the police station, in the presence of his solicitor, he was interviewed. Following interview, the Applicant provided two DNA samples and fingerprints and he was photographed (hereinafter described as “the impugned measures”). He neither consented nor objected to the impugned measures. By letter dated 21 November 2008, the Public Prosecution Service intimated that the Applicant would not be prosecuted.
III THE DECISIONS IN S and MARPER.
 … In R (S and Marper) –v- Chief Constable of South Yorkshire Police  1 WLR 2196 [ UKHL 39 (22 July 2004)] … by a majority of four to one, the House of Lords held that the retention of the Applicants’ fingerprints, cellular samples and DNA profiles did not interfere with their right to respect for private life under Article 8(1). Further, the House was unanimous that insofar as there was any such interference, it was justified under Article 8(2).
 … in S and Marper –v- United Kingdom  48 EHRR 50 [30562/04  ECHR 1581 (4 December 2008)] … the European Court [of Human Rights] upheld their complaint, finding that there was a disproportionate interference with their rights under Article 8.
IV THE ISSUES
 The court is of the opinion that there are two central issues which it must determine:
(a) Having regard to the clear conflict between the decisions of the House of Lords and the Strasbourg Court in the S and Marper case, what is the appropriate determination of the first limb of the Applicant’s challenge, which relates to the retention of his fingerprints and DNA samples?
(b) Does the retention of the Applicant’s photographic images by the Police Service, representing the second limb of his challenge, interfere with his right to respect for private life under Article 8(1) ECHR? If “yes”, is such interference justified under Article 8(2)?
As will be immediately apparent, neither element of the second of these questions arose in S and Marper. Accordingly, the challenge to the retention of the Applicants’ photographic images by the Police Service constitutes a novel aspect of these proceedings. …
VII SUMMARY OF CONCLUSIONS
With reference to the issues formulated in paragraph  above, the court concludes:
(i) As regards retention by the police of the Applicant’s fingerprints and DNA samples, we are bound to follow the decision of the House of Lords in S and Marper. Accordingly, this aspect of the Applicant’s challenge fails.
(ii) Having regard to the materially indistinguishable statutory and factual matrices in S and Marper and the present case, the retention by the Police Service of the Applicant’s photographic images, in the terms outlined above, does not interfere with his right to respect for private life protected by Article 8(1) ECHR. Thus Article 8(2) does not arise for consideration.
(iii) If our second conclusion is wrong, we would consider that any interference with the Applicant’s right to respect for private life is not justified under Article 8(2): while such interference pursues the statutory aims, which are legitimate, the interference is not proportionate and is not in accordance with the law.
(iv) Pursuant to Section 41 of the Judicature (NI) Act 1978, we certify for determination by the Supreme Court the following point of law of general public importance:
Whether [a] the continued retention of the Applicant’s DNA samples and fingerprints on the Police Service of Northern Ireland database indefinitely and/or [b] the continued retention of the Applicant’s photographic images on the same database for a minimum period of seven years and perhaps indefinitely infringes his right to respect for private life under Article 8 of the European Convention on Human Rights and Fundamental Freedoms, contrary to Section 6 of the Human Rights Act 1998.