According to Adam Wagner at UK Human Rights Blog: "Courts entitled to ignore European DNA and fingerprints ruling…for now". He cites R (C) v Commissioner of the Police of the Metropolis [2010] WLR (D) 193 in support of his headline. "Permission has been granted for an appeal directly to the Supreme Court, and the outcome of that appeal may have interesting implications for the status of European Court of Human Rights decisions in domestic law".
Adam continues: "It is worth revisiting the decision in order to extract some of the principles, as although not novel, they do highlight the difficulties for claimants who have taken a case to the European Court of Human Rights and won, but who are still waiting for their decision to be implemented by the UK government".
According to Moses LJ, in R (C) v Commissioner of the Police of the Metropolis [2010] WLR (D) 193 "The issue is whether the policy of the Association of Chief Constables of Police (ACPO) of retention of biometric samples, DNA and fingerprints, for an indefinite period save in exceptional circumstances, breaches these two claimants' rights enshrined in Article 8 of the European Convention of Human Rights. The claimants contend that the policy applied by the Commissioner of Police, the defendant in these proceedings, and by other Chiefs of police across the country, is a blanket and indiscriminate policy which fails to allow consideration of individual factors and permits the indefinite retention of samples obtained in circumstances where neither of the claimants had been convicted of any offence. They contend that that policy amounts to a disproportionate interference with their right to respect for private life".
Moses LJ, continues "The Commissioner and the Secretary of State, as an interested party, contends that this court is bound by the decision of the House of Lords in Regina (S) v Chief Constable of the South Yorkshire Police Regina (Marper) v Chief Constable of the South Yorkshire Police [2004] 1 WLR 2196. They contend that it is not open to this court to apply the decision of the European Court of Human Rights in S and Marper v United Kingdom [2009] 48 EHRR at 50. They contend, further, that the policy which is now pursued in relation to the retention of biometric samples is merely a temporary policy, pending legislation designed to take into account the decision of the European Court of Human Rights and conform with the Convention as interpreted by that court"...
..."If the contentions of the Commissioner supported by the Secretary of State are correct, then all parties agree that the appropriate course is to order a leapfrog appeal to the Supreme Court which can then consider its previous decision in the light of the judgment of the European Court of Human Rights. To ensure that there is no undue delay caused in particular by the circumstances in which this case came to this court this time of year, we did not hear any detailed argument on the merits of the claims brought by these two claimants. We focussed upon the question of precedent and whether the Commissioner and the Secretary of State were correct in contending that this court is bound by the decision of the House of Lords. In those circumstances it is only necessary to deal briefly with the facts and the underlying issues"...
..."The policy which is impugned demonstrates that in response to requests for destruction, the Commissioner proposes to apply the ACPO guidance which applied before the decision of the European Court of Human Rights until such time as new legislation is introduced. The policy which is relevant for the purposes of these claims is applied in the context of legislation under the Police and Criminal Evidence Act 1984 (PACE) as amended by section 82 of the Criminal Justice Act 2001. As originally enacted section 64 of Police and Criminal Evidence Act required fingerprints and DNA samples to be destroyed if the person from whom they were taken was not subsequently convicted of the offence for which he had been arrested. But section 54 was amended by section 82 which replaced the obligation to destroy such biometric samples with the rule that such fingerprints and DNA samples could be retained and used for the purposes related to the prevention and detention of crime investigating offences or conducting prosecutions"...
..."It is contended that the continuation of the policy upheld in the House of Lords but successfully impugned in Strasbourg is itself proportionate and legitimate. That temporary maintenance of the policy, so it is contended, affords a legitimate period of time in which the domestic law can be changed. But as the claimants point out, neither the Commissioner nor the Secretary of State as members of the executive can speak for the legislature. There can be no certainty as to when or what, or even whether legislation will be passed or, if it is passed, what it will contain by way of measures relevant to the retention of biometric samples and the time during which those samples can be held. This case must be judged, so the claimants contend, on the basis of the policy as it has been applied to them. Certainly, this case must be judged in the light of the question as to whether the decision of the House of Lords binds this court in the conclusion it reaches"...
..."# I now turn to the issue on which the hearing yesterday was focussed, namely whether this court is bound by the decision of the House of Lords in Marper or is free to follow the decision of the European Court of Human Rights in S and Marper. There is no dispute but that those two decisions cannot be reconciled. In Marper the House of Lords unanimously held that the policy preceding that which is in issue in the instant claims, but not in any material respect different, did not infringe the appellants' rights enshrined in Article 8. There was some dispute as to whether the majority of their Lordships concluded that Article 8 did not even apply to the retention of the appellant's biometric samples, that is their fingerprints and DNA. That dispute arose out of the wording of Lord Steyn's speech with whom all but Baroness Hale agreed on that point. At paragraph 31, he said:
"Looking at the matter in the round I am inclined to the view that in respect of retained fingerprints and samples article 8(1) is not engaged. If I am wrong in this view, I would say any interference is very modest indeed."
It is suggested by the claimants that those are not words of conclusion. But, in my view, it is clear from Lord Steyn's reasoning, and what he said at paragraphs 32 and 44 that it was his conclusion that Article 8(1) did not apply. That was the conclusion of the majority. At paragraph 44, Lord Steyn said that, in relation to the question as to whether there was any discrimination contrary to Article 14 of the Convention:
"In this case the question is whether the facts fall within the ambit of article 8. If my conclusion is right that article 8(1) is not engaged, it follows that article 14 is not triggered."
In any event it is clear that the House of Lords were unanimous in concluding that any interference was justified for the purposes of Article 8(2). It was in accordance with the law and was proportionate. In particular the House of Lords rejected the suggestion that the only fair process compatible with Article 8 was a case by case examination of the circumstances. At paragraph 39, Lord Steyn said:
"In my view this would not confer the benefits of a greatly extended database and would involve the police in interminable and invidious disputes (subject to judicial review of individual decisions) about offences of which the individual had been acquitted."
# It is plain that that conclusion cannot live with the essential submission advanced on behalf of these claimants, that the Chief of Police is required to consider their individual circumstances. The conflict between the decision of the House of Lords and Marper in Strasbourg is equally clear".
I have a particular interest in this case because as Adam points out, I have taken Hirst v UK (No2) to the ECtHR and won 5 years ago and to date the UK has refused to fully compy with the judgment. In my case, Parliament has failed to amend s.3 of RPA 1983. In the case above, it is being argued that the doctrine of precedent binds a lower court to follow the decision of the House of Lords even when it has subsequently been found to violate the Convention by a decision of the ECtHR (the highest court in Europe)!
The Council of Europe provides these relevant FAQs
What means are available to the Committee of Ministers to exert pressure on a State that does not want to execute a judgment?
"The Committee of Ministers is a political organ and, as such, it can bring its weight to bear on the State concerned to execute the Court’s judgment, including through the use of the heavy political sanctions provided for by the Statute of the Council of Europe.
Fortunately, in practice, the supervision of the execution of the Court’s judgments is essentially – and successfully – based on constructive and co-operative dialogue between states".
How is execution of ECtHR judgments handled at national level? Which are the domestic authorities entrusted with the execution of ECtHR judgments?
"Article 46 of the European Convention on Human Rights (ECHR) provides that "The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties".
This legal obligation to comply with ECtHR judgments involves all the State's authorities, although in the Committee of Ministers only Government are represented through their Permanent representations to the Council of Europe. The Permanent representations are the direct interlocutors as regards execution of judgments.
In practice, as soon as a final judgment finding a violation of the ECHR is issued the State is responsible for identifying the relevant domestic authorities that should be specifically informed of the judgment, in particular when these authorities are called to take execution measures.
The Government has then to inform the Committee of Ministers of the measures envisaged, the domestic authorities involved and the provisional time-table for adoption of the measures. On this basis, the Committee of Ministers supervises the regular progression of the measures announced and, in case of problems or delays, seeks appropriate solutions in cooperation with the relevant authorities and the State's Delegation.
Therefore, there is no pre-definite authorities in charge of the execution of ECtHR judgments, although there might exist a central national institution in charge of ensuring coordination on issues concerning execution of ECtHR judgments.
All relevant State authorities are thus called, within their competence, to take the necessary measures to ensure the execution of ECtHR judgments, i.e. to ensure that the consequences of the violations are remedied (payment of just satisfaction and adoption of individual measures) and that new violations are prevented (adoption of general measures). Many violations are thus solved by the Courts as these align their case-law with ECHR requirements.
If the courts or any other relevant national authorities fail to take the necessary measures, the State's responsibility is at stake and other domestic authorities might have to intervene in order to achieve the expected result: while the State is indeed free, within certain limits, to choose the means of execution it is legally bound to attain the execution result required. A typical example in this respect is the adoption of legislative measures by the Parliament or the Government in cases where the expected change of case-law did not take place. It should be noted that in States where the Convention and its case-law enjoy direct effect and are therefore directly applied by the Courts, it has sometimes been possible to invalidate through judicial procedures legal provisions that ran contrary to the ECHR. In such States, you will notice that the mere publication of a judgment may often be accepted as a sufficient execution measure as it is assumed that national courts will not fail to adapt their interpretation of the law in accordance with the ECtHR judgments".
It is quite clear that the Council of Europe has difficulty with the theory and practice, particularly if Hirst v UK (No2) is applied because it shows that in practice the theory does not work. I have highlighted "direct effect" because I am wondering if this might be a solution to the UK's failure to comply with judgments of the ECtHR which it doesn't like? It may be that the ECJ would entertain a case under the Lisbon Treaty?
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