Section 64 of the Police and Criminal Evidence Act 1984
Law Essay Title
Following a trial John was acquitted of all the charges. However the police notified John of their intention to retain his fingerprints and samples. Under section 64 of the Police and Criminal Evidence Act 1984 these fingerprints and samples were supposed to have been destroyed. However the Criminal Justice and Police Act 2001 gives the police the right to retain fingerprints and samples to aid crime and investigation and is retrospective. John is furious and argues that this is a violation of his right to respect for family and private life. John seeks your advice on the following issues: Whether the Police, as a public authority, are interfering with John right to Respect For Private And Family Life Article 8 of the ECHR (European Convention on Human Rights) Explain to John the influence of the ECHR (European Convention on Human Rights) on domestic law, giving specific examples from relevant cases.
Law Assessment
Section 64 of the Police and Criminal Evidence Act 1984 (PACE) required the destruction of fingerprints and samples that had been taken in connection with a criminal investigation, where the individual in question had subsequently been acquitted of the crime. The legislative position changed when the Criminal Justice and Police Act 2001 (CJPA) entered into force. Section 82 of this Act allows the police to retain the fingerprints and samples given by individuals who, like John, have been acquitted of the crime they were under suspicion of having committed.
John would like to know whether this legislation violates his right to respect for private and family life under Article 8 of the European Convention on Human Rights (ECHR), which has been incorporated into domestic law by virtue of the Human Rights Act 1998. He should be advised that the courts, both in Strasbourg and England, consistently take a two step approach to such matters; firstly they consider whether there has been an interference with this right by the public authority in question (Article 8(1)), and if they do consider there has been such an interference, they will go on to consider whether this is 'in accordance with the law and is necessary in a democratic society' (Article 8(2)).
The specific question of whether Section 82 of the CJPA violated an individual's rights under Article 8 of the ECHR was considered by the House of Lords in the consolidated appeals of R v Chief Constable of South Yorkshire Police ex parte LS and ex parte Marper. The majority of the House of Lords did not feel that it was necessary to consider the second limb of the test described above. In the leading judgment, Lord Steyn held that the retention of fingerprints and samples by the police for the strict purposes of preventing, detecting or investigating crime or conducting a prosecution was not an interference with a person's right to respect for his private and family life under article 8(1).
A complaint such as John's has never been put before the European Court of Human Rights. The European Commission of Human Rights, the quasi-judicial body that used to determine whether applications to the Court were admissible, stated that the matter was 'open to question.' The likely approach of the Strasbourg Court in resolving this question will be of particular interest to John. Decisions of the European Court of Human Rights are treated as persuasive by the English courts. English courts must 'take into account' Strasbourg case law, although they are not bound to follow it as they would the decision of a higher court in England. Senior English judges consider that the Strasbourg court provides, in the words of Lord Rodger, 'authoritative guidance.' John will no doubt feel that, in the absence of authoritative guidance from Strasbourg, the House of Lords in ex parte LS and ex parte Marper took an overly restrictive view of the Article 8 rights at stake.
It is highly likely that the reasoning of the European Court of Human Rights would proceed along the same lines as the dissent of Baroness Hale in ex parte LS and ex parte Marper. She argues that if, as the majority of the House of Lords had conceded, 'the taking and use of the information is an interference, it is difficult to see why the retention, storage or keeping of that information is not also an interference.' The fact that such information is 'intrinsically private' makes its retention an interference with the Article 8(1) rights of the individual in question, even if its use is strictly controlled. Indeed, this was the position taken by the Strasbourg court in Leander v Sweden. This case concerned the storage of information about certain individuals on a secret police register. The individuals were not given the opportunity to refute the information, and it was held that this amounted to an interference with the applicant's rights under article 8(1).
However, even if the Court were to find that the retention of John's fingerprints and samples amounted to an interference with his rights under Article 8(1), it must still consider whether such interference is necessary in a democratic society under article 8(2). Baroness Hale agreed with the majority that the retention of fingerprints and samples was justified under Article 8(2). Like the other Law Lords, she held that the invaluable role this information can play in 'accurate and efficient law enforcement' justifies the interference with a person's right to private and family life under Article 8(1).
If the European Court of Human Rights were to take a different stance and decide that Section 82 of the CJPA cannot be justified under article 8(2) it would present an awkward problem for the British Government. Strasbourg decisions have often prompted legislative change in the UK. For example, after the case of A v UK the European Court of Human Rights held that it was unlawful for the UK to allow a parent who uses corporal punishment on a child to rely on the defence of 'reasonable chastisement' contained in the Offences against the Person Act 1861. This led to the passing of the Children Act 2004, which introduces tough penalties for any corporal punishment that exceeds 'mild smacking'. And it was the mere threat of taking a case to Strasbourg that prompted the Government to introduce changes to terrorism legislation that allowed for discrimination against terrorist suspects from foreign backgrounds. The Prevention of Terrorism Act 2005 was passed shortly after the decision of the House of Lords in A, X and Others v Secretary of State for the Home Department, which held that such discrimination was contrary to Article 14 of the ECHR.
The case law of the European Court of Human Rights therefore carries great persuasive force, even though the courts and the Government are not bound by these decisions. Given the precedent established by the House of Lords on the question of retention of fingerprints and samples, the best course of action open to John would be to take his case to Strasbourg in the hope that the European Court takes a different view to the Law Lords. Such a decision may prompt the UK Government to introduce legislation to do away with Section 82 of the CJPA.
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