Retention of DNA, and the effect of decisions of the European Court of Human Rights

Misha AngristAn article in today’s Daily Telegraph raises important issues relating to the retention of the DNA of innocent persons by the police in both the UK and Ireland. It also raises profound questions as to the effect of decisions of the European Court of Human Rights in domestic law.

According to the Telegraph:

The [UK’s] Coalition Government has pledged to dramatically reduce the time period that police can retain samples of people who were not charged or convicted of offences. It follows a ruling by the European Court of Human Rights in 2008 that a blanket policy of retaining such profiles indefinitely was illegal.

However, no new laws have yet been introduced and the Supreme Court will today hear a test case that such samples should be deleted now. If the country’s top court agrees it could result in police forces having to remove the samples immediately regardless of when new legislation is introduced.

The case is R (on the application of C) (FC) (Appellant) v Commissioner of Police of the Metropolis (Respondent) (UKSC 2010/0186) on leapfrog appeal from the decision of the Queen’s Bench Division Divisional Court in GC and C the Commissioner of Police of the Metropolis [2010] EWHC 2225 (Admin) (16 July 2010). The UK’s current rules (pursuant, inter alia to section 64 (1A) of the Police and Criminal Evidence Act 1984) provide for the retention of DNA, fingerprints, photographs and other personal information of all suspects on the police national computer (the PNC), but gives Chief Police Officers the discretion to delete that information and to destroy DNA and fingerprints ‘in exceptional cases’. In S and Marper v United Kingdom 30562/04, [2009] 48 EHRR 50, [2008] ECHR 1581 (4 December 2008) (which I noted here) the European Court of Human Rights held that a blanket DNA retention policy was contrary to Article 8 of the Convention. Nevertheless, the Respondent took the view that until Parliament changed the law to come into line with that decision, he would continue to apply the existing policy. As a consequence, he continues to retain DNA, fingerprints and a photograph of GC, which were taken when he was arrested in December 2007 on suspicion of an offence in relation to which no further action was taken; and he continues to retain DNA and fingerprints of C, as well as information about him on the PNC, following his arrest in March 2009 on suspicion of offences, in respect of which either no further action was taken or the prosecution offered no evidence at trial. The Divisional Court held that it was bound by the prior decision of the House of Lords in R (S and Marper) v Chief Constable of South Yorkshire Police [2004] 1 WLR 2196 [2004] UKHL 39 (22 July 2004) that such a policy was lawful. The NI Queen’s Bench Division Divisional Court in JR 27’s Application [2010] NIQB 143 (Judgment No 2) (23 December 2010) – which I noted here – also subsequently, if very reluctantly, held that police retention of photos and DNA is compatible with ECHR. However, McCloskey J sounded almost relieved that the hearing of the appeal in GC and C was imminent.

In that hearing today, the issue for the UK Supreme Court will is whether the continued retention of the DNA, fingerprints and a photograph of GC and of the DNA, fingerprints and information on the police national computer in respect of C, violates their rights under Article 8 of the European Convention on Human Rights, and the decision will have significant effects not only on UK law but also on Irish law. In Ireland, the matter will be regulated by the Criminal Justice (Forensic Evidence and DNA Database System) Bill, 2010, and Human Rights in Ireland‘s superb Blog Carnival on DNA Databases discussed the issues raised by that Bill. Of course, when the Dáil is dissolved tomorrow, that Bill will lapse, but it is almost certain that the incoming government will revive it. If and when enacted, the Act will replace the existing statutory and common law arrangements governing the taking of samples for forensic testing with a statute-only regime. It will authorise the taking and retention of bodily samples not only from persons suspected of criminal offences for forensic testing but also from persons who are neither suspects not nor offenders but who volunteer to have such samples taken from them for the purpose of the investigation of offences. The Act will provide for the operation of a DNA Database for use by the Garda Síochána as an intelligence source for criminal investigations, and will authorise the taking of bodily samples from persons suspected or convicted of certain criminal offences to generate DNA profiles of those persons to be stored in the DNA Database; and it will authorise the same in respect of DNA samples to eliminate suspects. The Act will also provide, in limited circumstances, for the destruction of samples taken under it and the destruction, or removal from the DNA Database, of any DNA profiles generated from those samples. For now, all that I will say is that the decision of the UK Supreme Court in GC and C could have great impact on how that Act will be interpreted to avoid incompatibility with the Convention (to say nothing of the potential constitutional issues involved).

Finally, in today’s hearing in GC and C, the UK Supreme Court will have to resolve questions about the inter-relationship of domestic judgments with decisions of the European Court of Human Rights. The most recent word on this issue as a matter of Irish law is McD v L [2009] IESC 81 (10 December 2009). Following the decision of the Irish Supreme Court in JK v VW [1990] 2 IR 437, aspects of Irish family law were successfully challenged in the European Court of Human Rights in Keegan v Ireland 16969/90, (1994) 18 EHRR 342, [1994] ECHR 18 (26 May 1994). Nevertheless, in W O’R v EH [1996] 2 IR 248, the Supreme Court held that the decision of the ECHR in Keegan did not form part of the domestic law of Ireland, and that the task of implementing the decision in Keegan lay with the Oireachtas. The Adoption Act, 1998 (also here) eventually regulated the matter at issue. The applicants in GC and C before the UK Supreme Court today are in the same position as the applicant was in W O’R v EH before the Irish Supreme Court. For reasons of Irish constitutional law, the applicant’s argument failed in W O’R v EH; and these reasons were strongly reaffirmed by Murray CJ in McD v L:

Status of the European Convention on Human Rights
The relationship between international treaties to which Ireland is a party and national law is imbued with the notion of dualism the effect of which finds expression in Article 29.6 of the Constitution. According to the concept of dualism, at national level national law always takes precedence over international law. At international level, as regards a state’s obligations, international law takes precedence over its national or internal law which is why a state cannot generally rely on their own constitutional provisions as an excuse for not fulfilling international obligations which they have undertaken. Coming back to the national level the dualist approach means that international treaties to which a state is a party can only be given effect to in a national law to the extent that national law, rather than the international instrument itself, specifies.

Of course many states including many countries who are party to the European Convention on Human Rights, adopt the monist approach to the relationship between international law and national law. According to the monist concept, in principle international law has primacy over national law at national as well as international level. Nonetheless the application of this principle varies in its effect in States which follow the monist approach, some, for example, giving precedence to national legislation which post-dates the ratification of a relevant international treaty.

Article 29.6 of the Constitution provides in very clear terms “No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.”

This is consistent with the sovereign legislative powers vested in the Oireachtas by Articles 6 and 15 of the Constitution. The Oireachtas, in turn, when determining whether, and to what extent, an international agreement shall be part of the domestic law of the State is governed by the provisions of the Constitution.

In delivering the judgment of the then Supreme Court in In Re Ó Laighléis [1960] IR 93, 124-125 Maguire CJ stated:

When the domestic law makes its own provisions it cannot be controlled by any inconsistent provisions in international law. … The insuperable obstacle to importing the provisions of the Convention for the Protection of Human Rights and Freedoms into the domestic law of Ireland – if they be at variance with that law is, however, the terms of the Constitution of Ireland. By Article 15.2.1, of the Constitution it is provided that ‘The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State’. Moreover, Article 29, the Article dealing with international relations, provides at s. 6 that ‘no international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas’.

The Oireachtas has not determined that the Convention of Human Rights and Fundamental Freedoms is to be part of the domestic law of the State, and accordingly this Court cannot give effect to the Convention if it be contrary to domestic law or purports to grant rights or impose obligations additional to those of domestic law. No argument can prevail against the express command of s. 6 of Article 29 of the Constitution before Judges whose declared duty is to uphold the Constitution and the laws.

Maguire CJ went on to acknowledge that the State may have obligations under the Convention at international level but that cannot in itself affect the application of national law.This is not to take away from the fact that recourse may and has been had by our courts to the case-law of the European Court of Human Rights (ECtHR) for comparative law purposes when a court is considering the import of a right under our law which is the same or similar to a right under the Convention. (See for example In re Article 26 and the Health (Amendment) Bill 2004 [2005] 1 IR 105, [2005] IESC 7 (16 February 2005)). … The European Convention may only be made part of domestic law through the narrow portal of Article 29.6 and then only to the extent determined by the Oireachtas and subject to the Constitution. The Oireachtas may also, if it chooses, provide for express statutory protection of Convention rights as a means of fulfilling Convention obligations. … The obligations undertaken by a government which has ratified the Convention arise under international law and not national law. Accordingly those obligations reside at international level and in principle the State is not answerable before the national courts for a breach of an obligation under the Convention unless express provision is duly made in national legislation for such liability.

Even though the Contracting parties undertake to protect convention rights by national measures the Convention does not purport to be directly applicable in the national legal systems of the high contracting parties. Nor does the Convention require those parties to incorporate the provisions of the Convention as part of its domestic law. So far as the Convention is concerned it is a matter for each Contracting Party to fulfil its obligations within the framework of its own constitution and laws. The Convention does not seek to harmonise the laws of the contracting states but seeks to achieve a minimum level of protection of the rights specified in the Convention leaving the States concerned to adopt a higher level of protection should they chose to do so. … It is important to underline that the obligations of Contracting Parties under the Convention are engaged at international level as was pointed out in Ó Laighléis. The Convention does not of itself provide a remedy at national level for victims whose rights have been breached by reference to the provisions of the Convention. The Contracting States are answerable at international level before the ECtHR, an international court, and then only where available national remedies for any alleged wrong have been exhausted. This follows one of the general principles of international law that international courts should not have jurisdiction unless an individual claimant against a state has first exhausted available domestic remedies. …

Under the ECtHR when a state has been found to be in breach of its Convention obligations by the Court it is the role of the Committee of Ministers of the Council of Europe to supervise the execution of the Court’s judgments. … Thus contracting states may in principle, so far as the effect of the Convention at national level is concerned, ignore the decisions of the Court. Fortunately its decisions are generally respected and executed. … It is in the context of the foregoing perspective of the Convention that an international instrument binding on states as a matter of international law at international level rather than national level that this Court has held, at least prior to the coming into force of the European Convention on Human Rights Act 2003, could not be invoked by an individual as having a normative value or a direct legal effect in Irish law. Consequently no claim could be made before a court in Ireland for a breach as such of any provision of the Convention. To admit such a claim would have been to treat the Convention as directly applicable in Irish law.

European Convention on Human Rights Act, 2003
Section 2 of the European Convention on Human Rights Act, 2003 provides as follows:

  1. In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.
  2. This section applies to any statutory provision or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter.

This section obviously is not a basis for founding an autonomous claim based on a breach of a particular section of the Act. It is an interpretative section and is limited to requiring that a court, so far as possible, when interpreting or applying any “statutory provisions” or “rule of law” do so in a manner compatible with the State’s obligations under the Convention. In exercising its jurisdiction pursuant to s. 2 a court must identify the statutory provisions or rule of law which it is interpreting or applying. Even then it is subject to any rule of law relating to interpretation and application. …

The rights protected in the Convention are often broadly stated in open ended terms without any substantive attempt to define their meaning or ambit. … This raises questions as to how the intent of the Oireachtas by reference to the text of a statute which it has adopted in accordance with the Constitution is to be determined and the relevance of that intent to its interpretation. These questions are relevant to the role of the Oireachtas in whom “the sole and exclusive power of making laws for the State” is vested by Article 15.2 of the Constitution. Perhaps the answers to such questions lie in whole or in part in the proviso in s. 2 by which the requirement to interpret a statute in a manner compatible with the Convention is “subject to the rules of law relating to such interpretation and application”.

Such questions do not arise in this case. But they do underline the fact that the role of the Convention as an interpretative tool in the interpretation of our law stems from a statute, not the Convention itself, and can only be used within the ambit of the Act of 2003.

These questions do indeed arise in GC and C, and the decision of the UK Supreme Court in that appeal may provide some guidance on this question which Murray CJ left open in McD v L. Watch this space!