Judicial decision-making: secondary legal sources and assessment

¶ … DECISION -- S & MARPER vs. UNITED KINGDOM

The cases of S & Marper v United Kingdom involved the claims of two individuals that their rights had been violated by the retention of their fingerprints and identifying DNA material by police after their exoneration from the criminal charges against them. The bases of their claim was that: (1) Section 1 of Article 8 of the European Convention on Human Rights (ECHR) guarantees that "Everyone has the right to respect for his private and family life, his home and his correspondence" and that Section 2 of Article 8 prohibits any "interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."; and that (2) Article 14 of the ECHR guarantees the "enjoyment of the rights and freedoms set forth in this Convention" against discrimination by virtue of "any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

The Court rejected the claim of discrimination under Article 14 but found in favor of the applicants on their Article 8-based claim and awarded damages. I am inclined to disagree with the ruling of the Court in this case. First, it is clear that the actions of the state should have been authorized by Section 2 of Article 8. Second, while I would also have rejected the Article 14 claim, the Article 14-based argument against discrimination is potentially stronger than the Article 8 claim.

The Article 8 Claim -- Right to Respect for Private and Family Life

The applicants argued that the fingerprints and DNA material retained by law enforcement authorities contain highly personal, private, and potentially sensitive information about them. Likewise, by virtue of the nature of DNA technology, the retention of their personal information also necessarily means that the personal information of their relatives is also at issue. According to the applicants, the continued retention of their identifying information after their acquittal from the charges upon which their arrest was predicated, much more so, the indefinite retention of their personal identifying information in connection with those criminal charges amounted to a violation of the obligation imposed on government authorities by Section 1 of Article 8 of the ECHR to respect the private and family life of every person.

In considering the argument, the Court considered the fact that most Western societies either prohibit the retention of such evidence after the acquittal of the defendant of the charges or provide the opportunity for those acquitted defendants to petition the authorities involved to destroy the evidence collected in connection with the investigation (Economist, 2008). The Court gave excessive weight to that Section 1-based Article 8 argument while giving insufficient weight to the response of the government. Specifically, the government cited Section 2 of Article 8 that provides a broad and logical exemption from the obligation to comply with Section 1 when doing so is "in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Meanwhile, the evidence was collected precisely in the manner foreseen by Article 8 Section 2 and, therefore, should have exempted the government authorities involved from liability to the applicants. Perhaps more importantly, Article 8 Section 2 should also have permitted the government authorities to retain the evidence indefinitely.

Rationale for Disagreement with the Court's Article 8 Ruling

The issue of respecting the private and family life (and the home and correspondence) of a person would rightfully be characterized as having been infringed upon where government agents intruded into the home to demand unwarranted compliance with collection procedures, or entered into the home surreptitiously, or confronted an individual not charged with a crime to demand identifying information such as fingerprints or DNA material. However, it is incomprehensible that the mere retention of properly-collected evidence of this type could subject the authorities involved to liability or that they would be forced to destroy that evidence.

Contrary to the claims of the applicants, the proper retention of their identifying information by police authorities exposes neither them nor any member of their families to harm or violations of privacy. There is no public disclosure or awareness of the retention of that information, nor is it capable of being misused, except in the most egregious ways that we, as a civilised society, routinely trust law enforcement authorities not to do. If police cannot be trusted not to purposely doctor the evidence in future investigations to implicate random individuals whose identifying information happens to be in their files, then we should not be able to trust police with powers of arrest or firearms. Outside of such egregious and unimaginable circumstances, the retention of identifying information is without harm to the applicants.

The circumstances of the collection of the evidence should govern the permissibility of its retention by the collecting authorities under Article 8. Specifically, even assuming for the sake of argument that the retention of the evidence somehow constitutes a violation of the respect for private life guaranteed by Article 8 Section 1, the circumstances of its collection exempt it from the obligation to comply with Article 8 Section 1. First, the collection of the evidence was executed precisely within the scope of Section 2 of Article 8 at the time of its collection because it was collected in accordance with law as pertains to the lawful investigation of crime. Second, the interests of national security, public safety, and the protection of the rights and freedoms of others all militate against the destruction of any evidence of any crime that was duly and lawfully collected by police authorities at the time of its collection.

The argument about the matter of proper retention and security of any sensitive information and the potential harms to individuals associated with failing to do so should never have been considered because it is irrelevant to the issue of the case. In the event that law enforcement or other government authorities, or non-government entities fail to protect information within their files that causes harm to the privacy of individuals, there are existing civil remedies for those situations. Moreover, it should be presumed that law enforcement authorities routinely maintain identifying information collected lawfully from any individual, such as in connection with fingerprints collected in non-criminal processes, simply because it is in the best interests of the public for identification databases to maintain as many individual entries as possible. There are myriad other imaginable legitimate uses of such information, including the immediate identification of comatose accident victims or deceased individuals.

Perhaps the strongest argument against the Court's decision is the conceptual context of the collection of fingerprint and DNA evidence in the modern age. It is already the case that facial recognition and retinal scanning are used to identify potential terrorists in public places. Presumably, nothing in the ECHR would prohibit the routine collection and recording of all the faces and retinas scanned in public to maintain the widest possible identification database. Similarly, there would be nothing in the ECHR that would prohibit law enforcement authorities from vacuuming public places and then separating or sifting out all human hairs or skin follicles to add them to their identification databases using more traditional technology. If the ECHR does not prohibit this, it is difficult to understand why Article 8 Section 2 does not absolve police authorities from liability under Article 8 Section 1, as in the instant case.