R v The Commissioner of Police of the Metropolis

Commissioner of Police of the Metropolis

The Commissioner of Police of the Metropolis is the head of London's Metropolitan Police Service, classing the holder as a chief police officer...

[2011] UKSC 21 was a 2011 judgment of the Supreme Court of the United Kingdom

Supreme Court of the United Kingdom

The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...

. The case concerned the extent of the police's power to indefinitely retain biometric data

Biometrics

Biometrics As Jain & Ross point out, "the term biometric authentication is perhaps more appropriate than biometrics since the latter has been historically used in the field of statistics to refer to the analysis of biological data [36]" . consists of methods...

 associated with individuals who are no longer suspected of a criminal offence. In the case, a majority of the Supreme Court, including the Court's President Lord Phillips and the Lord Chief Justice Lord Judge reversed an earlier ruling of the High Court of Justice

High Court of Justice

The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...

 and found that the police force's policy of retaining DNA evidence in the absence of 'exceptional circumstances' was unlawful and a violation of Article 8 of the European Convention on Human Rights. The court declined to offer any specific relief however, recognising that the policy is expected to be subject to legislative scrutiny as Part 1 of the Protection of Freedoms Bill 2011

Protection of Freedoms Bill 2011

The Protection of Freedoms Bill is a parliamentary bill before the British House of Commons introduced in February 2011, by Home Secretary, Theresa May.The Bill is sponsored by the Home Office...

.

Facts

The case concerned the applications of two individuals (who were granted anonymity) who had been suspected of criminal offences and subsequently been cleared. Both individuals had applied to the police force requesting the destruction of DNA and other biometric data which the police force had retained, the police refused both requests citing an ACPO

Association of Chief Police Officers

The Association of Chief Police Officers , established in 1948, is a private limited company that leads the development of policing practice in England, Wales and Northern Ireland.ACPO provides a forum for chief police officers to share ideas and coordinates the strategic...

 guideline which permitted the destruction of biometric data only in 'exceptional circumstances'. Both individuals made an application to the High Court asking for judicial review

Judicial review

Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...

 of the police's decision. As the court was bound by a House of Lords

Judicial functions of the House of Lords

The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...

 precedent - R(S) v Chief Constable of South Yorkshire [2004] UKHL 39 - they refused the application, but gave permission for a leapfrog appeal

Leapfrog appeal

In the courts of England and Wales, a leapfrog' appeal is a special and relatively rare form of appeal in which a case which was heard by the High Court in its capacity as a trial court, an appellate court or as a source of judicial review is appealed directly to the Supreme Court .Typically...

 to the Supreme Court.

Judgment

In the Supreme Court, arguments were heard from the parties to the case and from intervening parties including Liberty

Liberty (pressure group)

Liberty is a pressure group based in the United Kingdom. Its formal name is the National Council for Civil Liberties . Founded in 1934 by Ronald Kidd and Sylvia Crowther-Smith , the group campaigns to protect civil liberties and promote human rights...

, the Equality and Human Rights Commission and the Home Department on hearings on 31 January and 1 February 2011. The court returned judgments on 18 May 2011. Whilst the court was unanimous in overturning the decision in R(S) v Chief Constable of South Yorkshire and affirming the European Court of Human Rights

European Court of Human Rights

The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...

' finding from S and Marper v United Kingdom (2009) 48 EHRR 50 that the police's blanket policy of retaining biometric data from persons who had either been acquitted of an offence, or against whom charges had been dropped was de facto incompatible with Article 8 of the European Convention on Human Rights, members of the court differed on their reasoning.

The majority, led by Lord Dyson felt that the APCO guideline which the police had relied on and which substantially restricted the discretion of police chiefs to destroy retained evidence was not compatible with Article 8. The majority read s64 Police and Criminal Evidence Act 1984

Police and Criminal Evidence Act 1984

The Police and Criminal Evidence Act 1984 is an Act of Parliament which instituted a legislative framework for the powers of police officers in England and Wales to combat crime, as well as providing codes of practice for the exercise of those powers. Part VI of PACE required the Home Secretary...

 (PACE) in conjunction with provisions of the Human Rights Act 1998

Human Rights Act 1998

The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...

 and determined that the APCO guideline was not compatible with the primary legislation and thus unlawful. They therefore allowed the appeal, although they did not pass any order requiring the destruction of any data as it was acknowledged that the legislature is expected to pass an Act in the near future which will limit the police's ability to retain biometric data.

The minority, consisting of Lord Brown

Simon Brown, Baron Brown of Eaton-under-Heywood

Simon Denis Brown, Baron Brown of Eaton-under-Heywood, PC, is a British lawyer and Justice of the Supreme Court of the United Kingdom.-Early life:...

 and Lord Rodger would have dismissed the appeals. Whilst they agreed in principle that the police policy was not compatible with article 8, they argued that the s64 PACE was itself not compatible with the convention, and that the police had 'no choice' but to retain the relevant data. As the judiciary of England and Wales has no power to review primary legislation such as this Act, they would have issued a declaration of incompatibility

Declaration of incompatibility

A declaration of incompatibility is a declaration issued by judges in the United Kingdom that they consider that the terms of a statute to be incompatible with the UK's obligations under the Human Rights Act 1998, which incorporated the European Convention of Human Rights into the UK domestic...

with regard to the provisions.

External links

• Official text of the judgment (UKSC website)