German Data Retention Decision: Early Analysis

The latest issue of the German Law Journal contains what may be the first academic analysis of the Bundesverfassungsgericht decision in the data retention case – previously discussed here. The article, entitled ‘Pitting Karlsruhe Against Luxembourg? German Data Protection and the Contested Implementation of the EU Data Retention Directive’ by Christian DeSimone offers a historical overview of data protection in Germany and a discussion of the adoption of the Data Retention Directive and its implementation in Germany. There is also some brief discussion of the BVerfG decision. As no English translation of the decision is available to date, it is not possible to comment on the usefulness of the analysis of the BVerfG decision. However, the article contains a beautifully succinct comment on the reasons for the adoption of the EU law as a Directive rather than a Framework Decision: “The politics of legislative process trumped legal orthodoxy”. The article is available for free and the full citation is [2010] 11(3) German Law Journal 291.

EU Data Retention: Death of a Directive?

The Data Retention Directive was adopted in the aftermath of the public transport attacks in London in July 2005. It requires telecommunications service providers to retain user traffic data for all telecommunications users for a period of six months to two years. The Directive has been highly criticised for requiring generalised data surveillance within the EU and thus infringing privacy of EU citizens.

Since its adoption, the Directive has been challenged in several Member States. The German Administrative Court of Wiesbaden, Supreme Administrative Court of Bulgaria and Romanian Constitutional Court had all found some or all of the measure to be unlawful. Furthermore, Sweden has been on the receiving end of an enforcement action by the Commission for its failure to implement the measure. The Swedish Government continues to equivocate as the matter is likely to be contentious in the upcoming General Election there. However, as widely reported (Irish Times, Financial Times), the German Federal Constitutional Court has now dealt what may be the death blow to the measure.

New Forensic Evidence and DNA Database Bill published

On Tuesday, the Minister for Justice, Equality and Law Reform, Dermot Ahern, published the Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010. This Bill repeals the Criminal Justice (Forensic Evidence) Act 1990 in its entirety. It provides for the taking of three categories of samples: (1) non-intimate and (2) intimate samples from persons arrested and detained in garda custody in order to prove or disprove their involvement in the commission of a particular offence, and (3) samples for the purpose of creating a DNA profile to be kept on the DNA database. Samples in this third category may not generally be taken from children under 14 years of age. The Bill also provides for the taking of samples from volunteers and others.

The Bill goes on to provide for the establishment of a DNA database – one part of which will retain DNA profiles for the purposes of criminal investigations, and a second, separate part of which will retain DNA material in order to assist in tracing and identifying missing or unknown persons. These two parts of the database are not to be cross-referenced. The database will be administered by the Forensic Science Laboratory, which is to be renamed in Irish – Eolaíocht Fhóiréinseach Éireann – and hold the initials EFÉ.

As reported in the Irish Times, the Minister in introducing the Bill said that all persons serving sentences for serious offences when the new law comes into force will be required to give a sample for the database. This will include people in prison and anyone on temporary release or on suspended sentences, as well as anyone on the sex offenders’ register.

Following the recent jurisprudence of the European Court of Human Rights (S and Marper v UK) the Bill provides that only persons convicted of serious offences will have their DNA material held indefinitely. Persons who are acquitted or against whom no proceedings are instituted will have their DNA material removed on application to the Commissioner of An Garda Síochána (with further appeal to the District Court). Where no application is made, the default periods for destruction of the material are 10 years in the case of a profile and three in the case of a sample.

Mark Kelly, director of the Irish Council for Civil Liberties (ICCL), has said that the ICCL will review the Bill in order to establish whether it strikes the right balance between catching criminals and protecting private life.

Reasonable Suspicion for Arrest and Evidence at Trial: Supreme Court Excludes Consideration of Exclusionary Rule

Yesterday, the Irish Supreme Court issued its judgment in the much anticipated case of DPP (Walsh) v Cash. The 7-judge court neatly side-stepped any indepth examination or reconsideration of the exclusionary rule, which it was thought that this case might produce. Although defence counsel sought to rely on that rule, the Supreme Court held that it was inapplicable on the facts and focused instead on the distinction between material which is required to ground a legal arrest and material which is presented as evidence at trial.

To briefly recap on the facts of this case, which was previously discussed on this blog here: the appellant, John Cash, was charged in relation to a burglary which occurred in July 2003 (at which time he was a minor).  Fingerprints had been taken at the scene of the burglary (referred to in the Supreme Court judgment as “Prints 2”) and these were found to match fingerprints reviously taken from Mr. Cash which were held in the Garda Technical Bureau (“Prints 1”). On the basis of this match, Mr. Cash was arrested and he thereafter consented to provide a new set of fingerprints (“Prints 3”). The prosecution had been unable to clearly state the legal position of Prints 1; whether they had been taken with consent or otherwise and whether or not they ought to have been destroyed following the passage of some time and the fact that no proceedings had been instituted.

Stop and Search and the Human Rights Boundaries

Police forces rely on powers of stop and search in both the investigation and prevention of crime. Challenges have long been launched against such powers arguing that they are in breach of rights to liberty, private life and, in certain circumstances, expression and assembly. Domestically, such challenges have rarely suceeded but yesterday the European Court of Human Rights, in the case of Gillan and Quintan v. The United Kingdom, ruled that the powers afforded to UK police under the Terrorism Act 2000 were in breach of the applicants human rights.
The applicants in this case, one a student and one a journalist, had been stopped and searched within an hour of each other in September 2003 at a protest outside an arms fair in London. The provisions under which they had been searched were s44 and s45 of the Terrorism Act, which in effect state that once a senior officer in a policing area has issued an authorisation, police officers can conduct random stops and searches of persons for the general purpose of preventing terrorism (as defined in the Act). No suspicion has to be held that the individuals in question possess any items relating to terrorism. These powers are provided in addition to powers to stop and search where suspicion is held (sections 41-43). Since the provisions came into force in 2001 continuous authorisations have been made, and approved by the Secretary of State, for the London Metropolitan Police Area for the maximum period of duration, 28 days. This was not the case in any other city. It was also in spite of annual reports from Lord Carlile that the powers were being used in ‘poor and unnecessary’ ways, they could be used much less and the the Home Office should be refusing to confirm authorisations. At the beginning of 2009 the power was being used between 8,000 and 10,000 times a month.

The House of Lords had held in March 2006 that the provisions did not breach Art 5 of the ECHR given the brevity of the encounter and the individual was not being “detained in the sense of confined or kept in custody, but more properly of being detained in the sense of kept from proceeding or kept waiting” which did not bring Art 5 into play. Lord Bingham identied 11 limitations placed on the power (such as time, place, authorisation, review requirements etc) which to his mind were sufficient to uphold the lawfullness of the provisions under the Convention. The Court also did not accept that the searches fell within the boundaries of Art 8 privacy provisions as the intrusion was not sufficiently serious.

The ECHR held on the issue of Art 5 that for the period they were detained, which did not exceed 30 minutes in either case, ‘the applicants were entirely deprived of any freedom of movement’. Had they attempted to move away they would have been liable to arrest, detention at a police station and criminal charges. The applicants had further argued that the powers were in breach of their rights to privacy as they would have no knowledged of when they could be subjected to a search (unlike at an airport where a traveller purchases a ticket in the knowledge that they will be searched), that a person does not forfeit rights to privacy by taking personal items into a public place like a street, all of which is compounded by the coercive nature of the search which undermines the concept of personal autonomy. On this issue the Court concluded

“the use of coercive powers conferred by the legislation to require and individual to submit to a detailed search of his person, his clothing and his personal belongings amounts to a clear intereference with the right to respect for private life…. the public nature of hte search may, in certain cases, compound the seriousness of the interference because of an element of humiliation and embarrassment. Items such as bags, wallets, notebooks and diaries may, moreover, contain personal information which the owner may feel uncomfortable about having exposed to the view of his companions or the wider public.”

There was, therefore, an infringement of Article 8 of the Convention and the Court proceeded to find that this was not justified in accordance with law: “the safeguards provided… have not been demonstrated to constitute a real curb on the wide powers afforded to the executive so as to offer the individual adequate protection against arbitrary interference.” It is not required at the moment of authorisation that the power be deemed ‘necessary’, there is no requirement of assessing proporationality, the review procedures lack power, and the discretion afforded to the police officer is too broad – he need not hold any suspicions in relation to the person stopped. Considering the documented levels of use, the Court felt there ‘is a clear risk of arbitrariness in the grant (sic) of such a broad discrtion to the police officer’. The risks of racial discrimination are very real and of misuse against demonstrators and protestors, which would be in breach of Articles 10 and 11. In light of the finding of a violation under Article 8, the Court did not consider the allegations under Articles 10 and 11 in this case. The applicants were both awarded costs and £500 each in damages.