Quantum of Solace: UK Court Deems Police Retention of Uncharged Suspect Photos an Invasion of Privacy

A UK High Court ruling handed down in June 2012 will change the policies of the Metropolitan Police (the Met), particularly after they release suspects without laying charges. In a decision centering on privacy practices and the encroachment of the State, it was held that the private interests of two complainants were compromised under the guise of public protection.

Ultimately, the human rights of the complainants under Article 8 of the European Convention on Human Rights (ECHR) were unjustly violated by the retention of photographs, with particular harm being exacted on minors. Article 8 of the ECHR protects the right to respect for private and family life, effectively serving to protect citizens from unreasonable encroachment by the State into the private lives of its citizens. Particularly, Article 8.2 indicates that:

“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The test for whether limitations of this right by the State are reasonable is akin to the Oakes test of limitations under Section 1 of the Canadian Charter of Rights and Freedoms.

In the aforementioned case, R(RMC & FJ) v Metropolitan Police [2012] EWHC 1681 (Admin), the High Court deemed the policy of police retention of suspect photos following uncharged release to be an unreasonable limitation of Article 8 rights for three primary reasons:

1. No distinction was drawn between suspects that were convicted, charged and acquitted, or not charged at all,
2. Retention was indefinite and potentially infinite, and
3. The harmful effects on minors were not mitigated

It had previously been held that the indiscriminate or indefinite retention of DNA and fingerprint data of innocent people was unlawful in Europe, and the ruling in R(RMC & FJ) extended this breach to photographic data.

The concept of creating a database with biological and identity profiles of citizens is a controversial one. In R(RMC & FJ), the Met argued that such practices were a reasonable limitation of Article 8 rights due to necessity for preventing crime and disorder. While such practices would likely assist the police in investigations, a balance must be struck between private and public interests. By not discriminating between released suspects and convicted criminals, the ECHR privacy rights are essentially negated, and the police begin to overstep their power. Particularly in the cases where minors are arrested but released without charges, such as the complainant FJ in the present case, holding a record could be misleading and effectively “stack the deck” against an individual in the future if arrests were made. Such action by the police has been held to be a disproportionate use of power, and in violation of human rights guaranteed in Article 8.

Being arrested and interrogated is in and of itself a stressful experience for innocent individuals, albeit often essential to the administration of justice. However, the High Court sent a clear message to the Met that such innocent individuals should be guaranteed the peace of mind that the experience of arrest will not be of legal detriment in the future if they are not convicted of an offence. Indeed, this is exactly the type of reassurance that Article 8 serves to provide.

These values have been mirrored in Canada, and Chantal Bernier, the Assistant Privacy Commissioner of Canada has suggested that privacy and national security compliment each other. With respect to DNA databanks and the surrounding privacy issues, which also pertain to the retention of such personal information as photographs, she argues that the law enforcement response will not be effective if not focused (i.e., gathering only the information relevant to achieving its purpose). Through this approach, justice can be efficiently served while minimally encroaching on the privacy rights of citizens. Certainly, the High Court agrees with this approach and helped to clarify the boundaries of what is relevant information when balanced with privacy rights.

With advances in technology, it is evident that not only is crime being enhanced, but also the power of the information in the possession of law enforcement. As such, the policies governing the conduct of the State must continue to adapt in order to protect our basic rights without obstructing justice, and the Courts have thus far done an excellent job ensuring that this is the case.

Ryan Heighton is a JD Candidate at Osgoode Hall Law School.