Drink-driver's privacy breached by DNA profile retention, European Court finds

By Emma Bowden, PA

A man convicted of a drink-driving offence whose DNA profile was held indefinitely by police had his privacy rights breached, the European Court of Human Rights has ruled.

Judges found that the retention of Fergus Gaughran's DNA profile, fingerprints and photography by the Police Service of Northern Ireland (PSNI) "amounted to an interference" with his private life.

A ruling said Mr Gaughran's data was retained without "reference to the seriousness of his offence" and without evaluating the need to keep it indefinitely.

He had unsuccessfully challenged the PSNI's continued retention of his data at the High Court in Belfast in 2012, and again in 2015 at the Supreme Court in London.

Mr Gaughran, from Newry, Northern Ireland, was arrested in October 2008 and taken to a police station, where officers from the PSNI 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 and was disqualified for a year and handed a £50 fine.

His DNA sample was destroyed in 2015 at his request, but officers continued to retain on an indefinite basis the digital data extracted from his sample, his fingerprints and photograph.

Mr Gaughran unsuccessfully challenged the right of police to retain the information indefinitely at the UK's highest court in 2015, when justices ruled that the retention policy was "proportionate".

He lodged an application to the ECHR in October 2015, relying on Article 8 of the European Convention on Human Rights, the right to respect for private and family life.

In a judgment issued on Thursday, seven judges unanimously found that Mr Gaughran's right to privacy had been violated.

The ruling said: "The Court found that the retention of the applicant's DNA profile, fingerprints and photograph amounted to an interference with his private life which had pursued the legitimate purpose of the detection, and therefore, prevention of crime."

The Strasbourg-based court said it had examined whether an interference in the applicant's privacy rights had been justified.

But its ruling said: "However, the applicant's biometric data and photographs had been retained without reference to the seriousness of his offence and without regard to any continuing need to retain that data indefinitely."

The court found that the PSNI were only able to delete biometric data and photographs in "exceptional circumstances", which meant Mr Gaughran could not request a review of the retention of his data.

It noted that the majority of member states in the Council of Europe put a time limit on retaining data, while the UK permits indefinite retention of DNA profiles.

The judgment said: "The Court found that the nature of those powers failed to strike a fair balance between the competing public and private interests.

"The respondent State had therefore overstepped the acceptable margin of appreciation and the retention at issue constituted a disproportionate interference with the applicant's right to respect for private life, which could not be regarded as necessary in a democratic society.

"There had accordingly been a violation of Article 8 of the Convention."

As it was a Chamber judgment, both sides now have three months to ask for the case to be referred to the Grand Chamber of the ECHR for a final ruling.

If no such request is made, or a referral request is rejected by the court, the judgment becomes final.

It is then transferred to the Council of Europe's Committee of Ministers, responsible for overseeing the implementation of the judgment by the UK, which is the member state in this case.

The UK will be required to present a plan of how they intend to implement the judgment to the Committee of Ministers.

PSNI Chief Superintendent John McVea said: "We will study today's judgment in detail regarding these complex issues.

"We will now carefully consider what it means."