Are the ACPO guidelines on the retention of fingerprints and DNA samples lawful?

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Are the ACPO guidelines on the retention of fingerprints and DNA samples lawful?

No, said the Supreme Court in R (GC) v Commissioner of Police of the Metropolis; R (C) v Same (CLW/11/19/3).

In 2007, the first claimant was arrested on suspicion of common assault on his girlfriend. He denied the offence. A DNA sample, fingerprints and photographs were taken after his arrest.

On the same day, he was released on police bail without charge. Before his bail return date, he was informed that no further action would be taken.

In 2009, his solicitors requested the destruction of the DNA sample, DNA profile and fingerprints. The Commissioner of the Metropolitan Police Service (MPS) refused this request on the grounds that there were no exceptional circumstances within the meaning of the Association of Chief Police Officers (ACPO) guidelines.

In 2009, the second claimant was arrested on suspicion of rape, harassment and fraud. His fingerprints and a DNA sample were taken. He denied the allegations, saying that they had been fabricated by his ex-girlfriend and members of her family.

No further action was taken by the police in respect of the harassment and fraud allegations, but he was charged with rape.

Later that year, at the Crown Court at Woolwich, the prosecution offered no evidence and he was acquitted. He requested the destruction of the data and its deletion from the police database.

However, the Commissioner of the MPS informed him that his case was not being treated as “exceptional” within the meaning of the ACPO guidelines and his request was refused.

Both claimants sought judicial review of these refusals. The Divisional Court, bound by the decision of the House of Lords in R (S) v Chief Constable of South Yorkshire Police; R (Marper) v Same (CLW/04/29/3) refused their claims. However, it recognised that there was an irreconcilable conflict between that case and the subsequent decision of the European Court of Human Rights in S v UK (CLW/08/46/1), and so granted a certificate that the case was suitable for a “leapfrog” appeal to the Supreme Court.

In the Supreme Court, it was common ground that, in light of the Strasbourg court’s ruling, the earlier decision of the House of Lords could not stand.

It was also common ground that the indefinite retention of fingerprints and samples taken from the claimants by the police under section 64(1A) of the Police and Criminal Evidence Act 1984, as supplemented by the ACPO guidance, was an unjustified interference with their right to respect for their private life under Article 8 of the European Convention on Human Rights.

As to remedy, the court held (by a majority) that it was clear that, by enacting section 64(1A), Parliament intended:

(a)to remove the obligation to destroy data as soon as practicable if the suspect was cleared of the offence;

(b)to create a scheme for the retention of the data taken from a suspect, whether or not he was cleared of the offence and whether or not he was even prosecuted; and

(c)that the data was to be