Weekly Digest: 2 March 2020

The applicant alleged that the indefinite retention of his DNA profile, fingerprints and photograph in accordance with the blanket policy of retention of personal data of any individual convicted of a recordable offence, amounted to a disproportionate interference with the right to respect for his private and family life under Article 8 of the ECHR and could not be justified. The Supreme Court in Gaughran v Chief Constable of the Police Service of Northern Ireland [2015] UKSC 29 had held that the indefinite retention of his data was proportionate.

The European Court of Human Rights held that there had been a violation of Article 8 of the ECHR.

The breadth of the margin of appreciation given to states as to whether an interference is necessary in a democratic society varies and depends on a number of factors, including the nature of the Convention right in issue, its importance for the individual, the nature of the interference and the object pursued by the interference ([77]). Although a small number of states operate indefinite retention regimes in relation to DNA or comparable regimes in relation to fingerprints and photographs, the majority have regimes in which there is a defined limit on the period for which data can be retained ([78] – [82]). The degree of consensus existing amongst states has narrowed the margin of appreciation available to the UK, particularly in respect of the retention of DNA profiles, and is not changed by the argument that the retention regime has regard to a minimum degree of seriousness in relation to the offending ([83] – [84]). Further, there were compelling reasons for the European Court to substitute its own assessment of the merits for that of the national judicial authorities, given that the national court’s assessment had been made on a number of incorrect bases: that the photographs were retained locally only and could not be searched against other photographs; that very few states have a process of administrative or judicial review available; and that there was no distinction between retention linked to the death of the data subject and indefinite retention ([85] to [86]).

In respect of retention regimes for the biometric data of convicted persons, the duration of the retention period is not necessarily conclusive in assessing whether a state has overstepped the acceptable margin. Of importance is whether the regime takes into account the seriousness of the offending and the need to retain the data, and the safeguards available to the individual. Where there is indefinite retention, the existence and functioning of certain safeguards becomes decisive ([88]). Here the applicant’s biometric data and photographs were retained without reference to the seriousness of the offence he committed and without regard to any continuing need to retain that data indefinitely. Moreover, the police could only delete biometric data and photographs in exceptional circumstances and there was no provision allowing the applicant to apply to have the data concerning him deleted if retention no longer appeared necessary. Accordingly, the review available to the individual would appear to be so narrow as to be almost hypothetical ([94]). The indiscriminate nature of the powers of retention of the DNA profile, fingerprints and photograph of the applicant as a person convicted of an offence, even if spent, without reference to the seriousness of the offence or the need for indefinite retention and in the absence of any real possibility of review, failed to strike a fair balance between the competing public and private interests. Although there was a slightly wider margin of appreciation in respect of the retention of fingerprints and photographs, such retention was also disproportionate, considering the lack of any relevant safeguards including the absence of any real review ([96]).

DN was born in Rwanda and in 2000 had come to the UK and been granted refugee status and indefinite leave to remain. He had subsequently been convicted of a number of offences. The most significant of these occurring in 2007 when he pleaded guilty to an offence of assisting the unlawful entry of a non-EEA national to the United Kingdom contrary to section 25 of the Immigration Act 1971 for which he received a custodial sentence. An offence contrary to section 25 of the 1971 Act was specified under the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 as a particularly serious crime. Under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 a person convicted of an offence specified in the 2004 Order was rebuttably presumed to have been guilty of a particularly serious crime and representing a danger to the community. Accordingly, after his release from his custodial sentence the Secretary of State decided to deport him on the grounds that there were reasonable grounds for regarding him as a danger to the security of the country. DN was detained pending detention. DN judicially reviewed the deportation order and the High Court held that the 2004 Order was unlawful. DN amended his judicial review to challenge the legality of his detention but the Court of Appeal held that his immigration detention had been lawful even though it was based on an unlawful deportation order.

The Supreme Court unanimously allowed DN’s appeal. Lord Dyson in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 made it clear that there was no difference between detention which is unlawful because there was no statutory power to detain and detention which is unlawful because the decision to detain was made in breach of a rule of public law. Detention in this case was for the express purpose of facilitating the deportation; detention would not have arisen, let alone been legal if there had not been a decision to deport. The detention was, therefore, inevitably, “tainted” by public law error ([17] – [18]). Where the deportation order is invalid, the unlawfulness of any detention which is founded upon it is inevitable. It is not sufficient to argue that there is a power to appeal against ([19]). The desire for finality and certainty cannot impinge on that inevitable result ([20]). The decision in R (Draga) v Secretary of State for the Home Department [2012] EWCA Civ 842 was wrongly decided, and it is doubtful whether R (Ullah) v Secretary of State for the Home Department [1995] Imm AR 166 was correctly decided ([21]-[22]). If, and inasmuch as, Ullah suggests that paragraph 2(2) of Schedule 3 to the 2002 Act provides a stand-alone authority for lawful detention, no matter what has gone before, and irrespective of the fact that the decision to deport lacks a legal basis, then that decision was wrong ([25]).

The appellant had been convicted of murder after fatally stabbing a stranger in the street. It was not disputed that he had been experiencing a psychotic episode at the time and on his own admission, he had been voluntarily ingesting huge quantities of alcohol and cocaine in the period before the killing. The sole defence advanced at trial to the charge of murder was lack of the necessary intent to kill or to cause really serious injury. Appealing against his conviction the appellant sought leave to adduce fresh evidence – primarily in the form of expert psychiatric evidence – to the effect that the partial defence of diminished responsibility would have been available.

The Court of Appeal dismissed the appeal. In preparation of the defence case before trial the defence had instructed an experienced consultant psychiatrist who concluded that the appellant had been suffering from a substance-induced psychotic disorder, with severe cocaine-use disorder and moderate alcohol-use disorder ([22], [25], [26]). Plainly such a report, as it stood, and given the law as to the voluntary consumption of intoxicants, would not have sustained a defence of diminished responsibility on the balance of probabilities ([28], [36]). There was therefore no question of any legal oversight or legal error at trial ([51]). Ultimately the defence were now trying to rely on one expert who had taken a different view on essentially the same material, instructed after trial, from that of another expert instructed before trial ([52]). It is not acceptable to wait upon the outcome of the trial: and then, and only then, when the defence of lack of intent was disproved and the appellant convicted, seek to resurrect a partial defence of diminished responsibility by commissioning a fresh psychiatric report from a different psychiatrist ([53]). Numerous authorities illustrate the rigorous approach which is generally taken by the courts in a context such as the present ([54]). This is not a case where there was error or oversight by the legal term or the expert, or where important new facts or materials have arisen. It is, bluntly, expert shopping ([60]). All this is wholly against this being an appropriate case to give permission to adduce this evidence and permission to do so would be refused ([61], [64]). Further, the evidence sought to have been adduced did not support a finding of diminished responsibility; there was no basis for asserting an abnormality of mental functioning arising from a recognised medical condition which substantially impaired the appellant’s ability in the relevant respects and which provided an explanation (in the sense of the statute) for his acts ([95]). Where an appellant seeks to adduce evidence on the basis that it supports a finding of diminished responsibility it is the obligation of the Court of Appeal first to appraise for itself the proffered evidence in order to see if it is capable of giving rise to a viable defence, on the balance of probabilities, of diminished responsibility. This evidence fell a long way short of doing so ([96]).

The Attorney General has provided an undertaking to the Grenfell Tower inquiry that no oral evidence provided to the Inquiry by individuals during modules 1, 2 and 3 of phase 2 will be used against the individual in any criminal proceedings or for the purpose of deciding whether to bring such proceedings against that individual. The undertaking does not prevent the evidence of witnesses from being used against corporations in any future prosecution.

The full piece can be read here.

The Terrorist Offenders (Restriction of Early Release) Act 2020, which was introduced as emergency legislation, has received Royal Assent. It will ensure that terrorist offenders only become eligible for release at the two-third point of their custodial terms and that release will be subject to the Parole Board finding that their detention is no longer necessary for the protection of the public.

The full piece can be read here.

The Home Office is launching a consultation on whether there should be a legal duty on organisations to increase physical security at venues and train staff to respond to terrorist attacks, as well as putting in place incident response plans.

The full piece can be read here.