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Drink-driver loses DNA court battle

Published 13/05/2015

Justices at the Supreme Court ruled against Fergus Gaughran
Justices at the Supreme Court ruled against Fergus Gaughran

A man convicted of a drink-driving offence has lost a test-case battle at the UK's highest court over the police retention of his DNA profile.

Supreme Court justices in London rejected an appeal by Fergus Gaughran, who challenged the right of police in Northern Ireland to retain the information indefinitely.

His legal action was originally dismissed at the High Court in Belfast in 2012.

Mr Gaughran was arrested in October 2008. Police lawfully obtained his fingerprints, a photograph and a DNA sample, from which a DNA profile was taken.

He pleaded guilty to the charge of driving with excess alcohol the following month and was disqualified for a year and fined £50.

In 2009 his lawyers requested that his data should no longer be retained, but after receiving no assurance that it would not be kept, judicial review proceedings were launched against the Police Service of Northern Ireland (PSNI).

People acquitted of an offence have successfully challenged the lawfulness of indefinite retention of samples.

But the High Court judges dealing with Mr Gaughran's case said it was the first time the court had been called on to adjudicate on the lawfulness "of the indefinite retention of such data following a conviction for a criminal offence which the applicant alleges to be a relatively minor criminal offence and which he claims is of insufficient gravity to justify indefinite retention of the material".

Rejecting his case in 2012, the judges found that Mr Gaughran's right to respect for private life under Article 8 of the European Convention on Human Rights (ECHR) was "engaged", but the interference with that right was justified. They found that the "policy of indefinite retention is not disproportionate".

The proceedings before the Supreme Court were concerned only with the retention of Mr Gaughran's DNA profile, as police in Northern Ireland intend to destroy the DNA sample when new legislation comes into force.

The court heard that the PSNI now retains biometric data indefinitely only of those convicted of crimes.

Mr Gaughran's challenge was dismissed today by a majority of four to one. The court ruled that the retention policy was "proportionate".

Lord Clarke, explaining the decision of the majority, said the appeal related to the right of the PSNI to "retain personal information and data lawfully obtained from the appellant following his arrest".

Mr Gaughran, 42, argued that the police could not lawfully retain his DNA profile, fingerprints and photograph indefinitely.

But the Supreme Court ruled that the retention was lawful, declaring the policy "proportionate".

Dismissing the challenge, Lord Clarke said: "As I see it, the benefits to the public of retaining the DNA profiles of those who are convicted are potentially very considerable and outweigh the infringement of the right of the person concerned under Article 8.

"I would accept the submission made on behalf of the Secretary of State (for the Home Department) that the retention of the biometric data contributes to law enforcement and the investigation of offences in relation to both future and historic offences."

The judge said it was "also of some note that a DNA profile may establish that the person concerned did not commit a particular offence".

In 2009 the European Court of Human Rights held that the UK's policy of indefinite retention of individuals' fingerprints, cellular samples and DNA profiles after proceedings against them had led to acquittal or discontinuance was a disproportionate interference with their respect for private life.

Lord Clarke said that following the decision in Europe the policy and practice of the PSNI changed in relation to those who were acquitted, but "remained unchanged in relation to those, like the appellant, who were subsequently convicted".

Once the Criminal Justice Act (Northern Ireland) 2013 comes into force, "the policy and practice in the case of the appellant will allow the PSNI to retain the DNA profile, fingerprints and photograph for any use to which they may be lawfully put".

Lord Clarke, Supreme Court president Lord Neuberger, Lady Hale, and Lord Sumption all dismissed the appeal brought by Mr Gaughran - whose conviction was spent after five years - ruling that the policy of the police in Northern Ireland to retain indefinitely the DNA profile, fingerprints and photographs "of a person convicted of a recordable offence" was not in breach of Article 8.

But d issenting, Lord Kerr said he would allow the appeal and declare that the policy is incompatible with Article 8.

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