Abstract
Covert interference with telecommunications and State accumulation of data — such as DNA profiles — relating to an individual’s personal human characteristics are protected by Article 8 of the European Convention on Human Rights. On the level of European policy, and particularly in the UK, the pendulum has swung strongly towards permitting intrusive techniques for data acquisition and retention at the expense of data privacy rights. However, the Convention requires any interference with Article 8 rights to be “in accordance with the law” and “necessary in a democratic society” in pursuance of a legitimate aim. Applying these principles in two recent judgments — Liberty and others v. UK and S. & Marper v. UK — the European Court of Human Rights has reaffirmed the importance of strong legal protection of data privacy. These decisions have important implications for the direction of European policy. The author and his colleague Richard Clayton QC acted as counsel for the British NGO Liberty in both cases.
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- 1.
Ser. A no. 82.
- 2.
In this chapter, “the Court”.
- 3.
(2008) 48 EHRR 1 Chamber judgment of 1 July 2008.
- 4.
The power to take and retain fingerprints and samples is contained in Police and Criminal Evidence Act 1984 (“PACE”), ss. 62–64. “Recordable” offences are those designated as such by ministerial regulations (PACE, ss. 27 and 118). They include a wide range of offences, many of them trivial and punishable only by a modest fine. The detailed provisions governing the practice of retention and destruction of records are contained not in legislation but in the “Retention Guidelines for Nominal Records on the Police National Computer 2006”, prepared by the Association of Chief Police Officers in England and Wales. An Appendix to the Guidelines describes “exceptional” cases as “rare by definition”, giving as examples cases where the original arrest or sampling was unlawful or where it is established beyond doubt that no offence existed.
- 5.
Margolis Adrienne, “Getting the Balance Right on DNA.” International Bar News (December 2008) [37].
- 6.
30562/04, Grand Chamber judgment of 4 December 2008.
- 7.
2006/24/EC. In Ireland v. European Parliament, Case C-301/06 (Judgment 10 February 2009), the ECJ accepted that the Directive had been validly adopted under Article 95 EC.
- 8.
See Home Office consultation document, April 2009, “Protecting the Public in a Changing Communications Environment” (Cm 7586), http://www.homeoffice.gov.uk/documents/cons-2009-communications-data. The document, describing proposals for an Interception Modernisation Programme, proudly reminds the reader that the Data Retention Directive was adopted during the UK’s EU Presidency.
- 9.
Government Communications Headquarters.
- 10.
[1992] Ch. 225 at 240 (a decision of the English High Court).
- 11.
Human Rights Act 1998, in force 2 October 2000.
- 12.
Rulings of the Tribunal on Preliminary Issues of Law, IPT/01/62, 9 December 2004, http://www.ipt-uk.com/docs/IPT_01_62.pdf.
- 13.
[2004] R. v. Chief Constable of South Yorkshire Police, ex parte Marper, 1 WLR 2196.
- 14.
Sunday Times v. UK, (1979) Ser. A no. 30.
- 15.
Goodwin v. UK, (1996) 22 EHRR 123, para. 31.
- 16.
Handyside v. UK, (1976) Ser. A no. 24; Connors v. UK, (2005) 40 EHRR 9; Hirst v. UK (No. 2), (2006) 42 EHRR 41.
- 17.
Klass v. Germany, (1978) 2 EHRR 214.
- 18.
Malone v. UK, (1984) Ser. A no. 82, para. 67.
- 19.
(1990) 12 EHRR 547.
- 20.
62540/00, Judgment of 28 June 2007.
- 21.
(1994) 78A DR 119.
- 22.
Hilton v. UK, (1988) 57 DR 108.
- 23.
Hewitt and Harman v. UK (No. 2), Comm. Rep 1.9.93.
- 24.
Judgment, para. 63.
- 25.
Ibid., para. 64.
- 26.
54934/00, decision of 29 June 2006.
- 27.
Liberty and others judgment, para. 68; and see Weber decision paras. 32–61.
- 28.
Liberty and others judgment, para. 69.
- 29.
Above, note 4.
- 30.
Judgment, para. 99, citing Liberty and others with approval.
- 31.
Ibid.
- 32.
Much of it submitted by Liberty as intervener.
- 33.
Judgment, paras. 45–49.
- 34.
Judgment paras. 102, 119, 122–125.
- 35.
Para. 103.
- 36.
Para. 125.
- 37.
Paras. 85–87.
- 38.
S. and Marper judgment, para. 103.
- 39.
Malone judgment, para. 79.
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Nardell QC, G. (2010). Levelling up: Data Privacy and the European Court of Human Rights. In: Gutwirth, S., Poullet, Y., De Hert, P. (eds) Data Protection in a Profiled World. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-8865-9_3
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