FIRST SECTION

DECISION

Application no . 24344/08 Paul Karl THOMAS against the United Kingdom

The European Court of Human Rights (First Section), sitting on 25 April 2017 as a Committee composed of:

Kristina Pardalos , President, Pauliine Koskelo , Tim Eicke , judges , and Renata Degener , Deputy Section Registrar ,

Having regard to the above application lodged on 18 April 2008,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Paul Karl Thomas, is a British national, who was born in 1968 and is detained on the Isle of Wight. On 16 June 2015 the applicant requested that he be permitted to represent himself in proceedings before the Court. On 1 July 2015 the President of the Fourth Section acceded to his request.

2. The United Kingdom Government (“the Government”) were represented by their Agent, Ms A. McLeod, of the Foreign and Commonwealth Office.

A. The circumstances of the case

3. The applicant was arrested on 29 December 2000 following an allegation of assault. Following arrest the applicant provided, at the request of the police, a DNA sample by mouth swab. The legislation in force at the time required the destruction of an accused ’ s DNA sample and fingerprints “as soon as is practicable after the conclusion of the proceedings” (section 64(1), Police and Criminal Evidence Act 1984). It did not require destruction of any DNA profile derived fro m a DNA sample (see paragraph 12 below).

4 . The case against the applicant on the assault charge was dropped on 13 February 2001. The Government asserted that the applicant ’ s DNA sample was destroyed on 14 January 2001, prior to the conclusion of proceedings, however his DNA profile (a sequence of numbers derived from a DNA sample which provides a future means of identifying a person against bodily tissue) and a copy of his fingerprints were retained. The applicant disputed the date of destruction of the sample. The Government submitted that in the alternative, the applicant ’ s DNA sample was destroyed by 1 February 2013 at the latest. Relevant documentation provided to the applicant from a number of domestic authorities, including the Metropolitan Police Service and the Information Commissioner ’ s Office, do not assist with the satisfactory resolution of the issue

5. In May 2004 DNA samples from victims of one hundred unsolved cases were re-examined for DNA profiling via a newly available technique (“SGM Plus”). Two of those samples, from sexual assaults concerning a Ms S and a Ms H, matched the applicant ’ s DNA profile on the database. A third sample, taken from Ms DB, could not be subjected to the new profiling procedure, but under the old method had been identified as identical to that in the cases of S and H.

6. On 1 November 2004 the applicant was arrested. DNA profile checks were made and the result gave the same SGM Plus profile positively identifying the applicant with the samples in the cases of Ms S and Ms H.

7. On 1 November 2004 the applicant was charged with offences of rape and indecent assault against the three women.

8. On 15 September 2005 the applicant was convicted, by a jury, of two counts of rape and one of indecent assault. He was sentenced to concurrent sentences of fourteen years imprisonment. The applicant sought and was subsequently granted permission to appeal against his conviction. His grounds of appeal did not include a challenge to the retention of his biometric data. The Court of Appeal dismissed the applicant ’ s appeal against conviction on 14 September 2006. In its decision, it noted that a DNA sample was taken from the applicant in 2004.

9 . On 12 May 2006, the applicant made a complaint to the Metropolitan Police about the retention of his biometric data after charges were dropped against him in 2001. This was rejected on 13 July 2006. The applicant requested the Independent Police Complaints Commission (IPCC) to review that rejection on 18 July 2006. The IPCC did so, and on 4 December 2006 decided not to challenge the rejection.

10 . On an unclear date the applicant made an application, some three and a half years ’ out-of-time, to the Court of Appeal for leave to appeal against conviction to the Supreme Court, which included a complaint that his DNA taken in 2001 should not have been retained. On 18 June 2010, referring back to its previous decision of 14 September 2006, the Court of Appeal advised the applicant that it was not minded to certify his case as concerning a point of law of general public importance; that it was not minded to grant leave to appeal to the Supreme Court; and that it did not wish to hear oral submissions on the matter. Oral judgment was given to this effect on 12 July 2010.

11. The applicant ’ s DNA profile and possibly his DNA sample (see paragraph 4 above) were destroyed on 1 February 2013. According to the Government it would appear that this destruction was carried out in error given his conviction for serious sex crimes.

B. Relevant domestic law and practice

1. Domestic law prior to S. and Marper v. the United Kingdom

12 . Prior to 11 May 2001, Section 64(1) of the Police and Criminal Evidence Act 1984 (“PACE”) included a requirement that if the person from whom the fingerprints or samples were taken in connection with the investigation was acquitted of that offence, the fingerprints and samples, subject to certain exceptions, were to be destroyed “as soon as practicable after the conclusion of the proceedings” ( S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 28, ECHR 2008). It did not require destruction of any DNA profile derived from a DNA sample.

13. From 11 May 2001, PACE allowed the indefinite retention of fingerprint and DNA material of any person of any age suspected of any recordable offence in England, Wales and Northern Ireland.

14. On 4 December 2008 this Court found that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences failed to strike a fair balance between the competing public and private interests. It concluded that the retention at issue constituted a disproportionate interference with the applicants ’ right to respect for private life which could not be regarded as necessary in a democratic society ( S. and Marper , cited above , § 125).

15. The relevant domestic law and practice regarding the collection and retention of biometric data are set out in detail in the Court ’ s judgment (see S. and Marper , cited above, §§ 26-37, ECHR 2008).

2. Domestic law after S. and Marper

16 . The Protection of Freedoms Act 2012 came into force on 31 October 2013. It included provisions to amend the DNA and fingerprints retention scheme set out in PACE, England and Wales.

17. The provisions in PACE as amended now provide that DNA samples must be destroyed as soon as a DNA profile has been taken, or within six months of the taking of the DNA sample.

18. DNA profiles for minors and adults arrested for a minor crime are deleted at the time of the decision not to charge, to discontinue proceedings or on acquittal. The Act also introduced a time limit of three years for the retention of fingerprints and DNA profiles for individuals arrested but not convicted for a serious offence, with a possible, single extension of two years upon application of the police to the national courts.

19. DNA profiles taken from a person convicted of a recordable offence may be retained indefinitely.

20. The destruction of certain DNA samples, profiles and fingerprints, bringing the existing databases into line with the new legislation, was complete by the end of September 2013. A Biometrics Commissioner has been appointed, whose role is, inter alia, to keep the retention and use of biometric material under review.

3. Domestic case-law

21 . On 13 May 2015 the Supreme Court gave its judgment in Gaughran (Appellant) v. Chief Constable of the Police Service of Northern Ireland (Respondent) (Northern Ireland) [2015] UKSC 29. The appellant was convicted on 5 November 2008 for the recordable offence of driving with excess alcohol, for which he was fined 50 pounds sterling (GBP) and disqualified from driving for 12 months. No immediate or suspended custodial sentence was imposed on him. The Supreme Court examined whether the lawful, indefinite retention of his DNA profile, fingerprints and photographs following his conviction, was in breach of Article 8 of the Convention.

22 . The Supreme Court concluded that the retention of his biometric data was proportionate and justified, and so was not in breach of Article 8 of the Convention.

COMPLAINT

23. The applicant complained that the retention of his biometric data, that is to say his DNA sample and profile, was in breach of Article 8 of the Convention. He did not complain about the retention of his fingerprints.

THE LAW

24. Article 8 of the Convention reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. 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.”

A. The parties ’ submissions

25. The Government argued that the retention of the applicant ’ s biometric data could not be treated as one single period. Rather, as retention was for materially different purposes at given periods of time, there were five distinct periods. The first period ran from 29 December 2000 until 13 February 2001 during which time the applicant was investigated on an assault charge which was ultimately dropped. The second period ran from 14 February 2001 until 31 October 2004 during which time the applicant did not have a criminal record nor was he being investigated on any criminal charges.

26. The third period started on 1 November 2004 and ran until 14 December 2006, a period during which the applicant was investigated for and subsequently convicted of rape and sexual assault. The fourth period ran from 15 December 2006 until 1 February 2013 which was post his conviction until the destruction of his DNA profile. The final fifth period ran from 1 February 2013 in respect of the continued retention of the applicant ’ s fingerprints.

27 . The Government asserted that as the applicant had lodged his complaint with this Court on 18 April 2008, his complaints in respect of the first three periods ending on 14 December 2006, as outlined above, were inadmissible as they failed to comply with the six-month time limit under Article 35 § 1 of the Convention. They also recognised that prior to 4 December 2008 (when S. and Marper , (cited above) became final), the rule requiring the exhaustion of domestic remedies might not have required the applicant to pursue a challenge in the domestic courts. In respect of the last two periods, they argued that he had failed to exhaust his domestic remedies and in any event, his claim was manifestly ill-founded.

28. The applicant submitted that the retention of his biometric material should be considered as one continuing period and could not be justified.

B. The Court ’ s assessment

29. At the outset, the Court notes that from the parties ’ submissions it has not been able to conclude with certainty whether the applicant ’ s DNA sample was destroyed in 2001 and whether a second DNA sample was taken from him in 2004. However, it does not consider it necessary to come to a conclusion about that for the purposes of this application because it is clear that the authorities held the applicant ’ s DNA profile on the DNA database from 2000-2013. There is therefore no question that they retained his biometric data during this period regardless of when or whether his original DNA samples were destroyed. The Court has found that the retention of both cellular DNA samples and DNA profiles of an applicant discloses an interference with the right to respect for his private life within the meaning of Article 8 § 1 ( S. and Marper , cited above, § 77). Accordingly, there was an interference with the applicant ’ s Article 8 rights during this time. The central question is therefore whether that interference was justified ( S. and Marper , cited above, § 125).

30. In light of its conclusion that the justification for the retention of the applicant ’ s biometric data is the central issue in the application, the Court agrees with the Government that the retention cannot be treated as one continuing period because the justification for retention changed significantly from the time the biometric data was first taken in 2000, to its destruction in 2013.

31 . Accordingly, the Court considers that for the purposes of the present application, the retention of the data should be divided into two periods. The first, lasted from 29 December 2000 to 31 October 2004. The second concerns its retention from 1 November 2004 until its deletion from the database on 1 February 2013 during which time the applicant was suspected, charged and ultimately convicted of serious criminal offences.

1. The six month rule

32 . In respect of the first period, the Court considers that once the police decided to drop the charges against him on 13 February 2001 the applicant was in a similar situation to the applicants in S. and Marper , cited above. During this period the applicant did not have any domestic remedy available to him to challenge the retention of his biometric data, as recognised by the Government (see paragraph 27 above). That is because a remedy will be ineffective inter alia if it offers no reasonable prospects of success. This will include instances where there is recent, negative case-law of the domestic appeal court in cases which are factually or legally similar to the applicant ’ s case and where there is no likelihood of the appeal court reversing its own recent precedent (see Chakkas and Others v. Cyprus [ dec ], nos. 43331/09, 27877/10 and 36144/11 § 23, 20 October 2015). Therefore, at least after 12 September 2002 when the Court of Appeal gave its judgment in the domestic proceedings in S. and Marper (see S. and Marper , cited above, § 13) the applicant had no effective remedy.

33 . Where no effective remedy is available to an applicant, the time ‑ limit to apply to this Court expires six months after the date of the acts or measures about which he complains, or after the date of knowledge of that act or its effect or prejudice on the applicant ( Chakkas and Others, cited above, § 21).

34. Accordingly, even allowing for the possibility that the applicant only became aware that his biometric data was retained at the latest possible moment in this window of time, that is on 31 October 2004, his application to this Court made nearly four years after that date i.e. on 18 April 2008, would still be out of time.

35. The Court notes in this connection that it is not necessary for it to consider whether the applicant exhausted domestic remedies in the period prior to the judgment of the Court of Appeal, i.e. between 13 February 2001 and 21 September 2002. That is because whilst there may have been a theoretical possibility of pursuing such a claim during this period, in reality it would have been difficult to do so in light of the fact that the domestic proceedings which resulted in the Court of Appeal judgment of 12 September 2002 were already underway by mid-2001. In any event, it does not appear that the applicant took any steps in this regard.

36 . The Court also notes that the applicant complained in 2006, to the Metropolitan Police and then the IPCC about the retention of his DNA sample in 2001. He also made an out of time application for permission to appeal to the Court of Appeal (see paragraphs 9 and 10 above). It is not clear that in the particular circumstances of the case these complaints could be considered as effective remedies within the meaning of Article 35 § 1 (see Tucka v. the United Kingdom (No. 1), § 15, 34586/10 [ dec. ] 18 January 2011, Wright and Brown v. the United Kingdom, § 51, 52334/13 [Dec.] 18 October 2016 and Lang and Hastie v. the United Kingdom § 28 19/11 and 36395/11 [ dec. ] 22 May 2012).

37. However, there is no need for the Court to reach a conclusion on that point, as the applicant initiated all those proceedings more than six months after the end of this first period i.e. more than six months after 31 October 2004 (see paragraphs 31 and 33 above). In this connection, the Court recalls that whilst the date on which the out of time application to the Court of Appeal was actually submitted is unclear, the decision itself refers back to the earlier judgment of the Court of Appeal of 14 September 2006 (see paragraph 10 above). The application must therefore have been introduced after that date.

38. Therefore, those complaints do not affect the Court ’ s conclusion that the applicant ’ s complaint about the lack of justification for the retention of his biometric data during this first period is out of time.

2. The rule of exhaustion of domestic remedies

39. Turning to the second period of time from 1 November 2004 to 1 February 2013 (see paragraph 31 above), the Court notes that from the moment the applicant was charged with a serious offence for which he was later convicted, he was in a different situation to the applicants in S. and Marper , cited above. Indeed, this Court was clear in S. and Marper , that it was only examining the powers of retention of biometric data of persons who were once suspected, but ultimately not charged or convicted of offences ( S. and Marper , cited above, § 125). Accordingly, this part of the applicant ’ s claim raises different questions about the justification for the retention of his biometric data and so the Court concludes that the decision of the Court of Appeal in the S. and Marper proceedings did not eliminate a reasonable prospect of success in respect of such a claim. It must therefore consider whether the applicant exhausted the available domestic remedies.

40 . At a number of points after it became clear that the authorities had retained his biometric data in connection with the serious criminal offences for which he was later convicted, the applicant could have raised arguments concerning the lawfulness of its retention. However, he did not attempt to bring any judicial review of the decision to retain or use his data. Neither did he raise any arguments concerning the retention of his biometric data before the criminal court in 2005, nor on appeal to the Court of Appeal in 2006. Inasmuch as his subsequent out of time application to the Court of Appeal for permission to appeal to the Supreme Court could be considered an effective remedy in this context (see also paragraph 36 above) it may be noted that this was rejected by the Court of Appeal on 18 June 2010. Oral judgment was given to this effect on 12 July 2010 and the applicant did not attempt to appeal directly to the Supreme Court (see paragraph 10 above).

41. Consequently, the applicant did not provide the domestic courts with the opportunity which is in principle intended to be afforded to a Contracting State by Article 35 § 1 of the Convention, namely the opportunity of addressing, and thereby preventing or putting right, the particular Convention violation alleged against it (see Peacock v. the United Kingdom ( dec. ) 52335/12, § 40, 5 January 2016 and Goggins and Others, cited above , § 55).

42. This conclusion is not affected by the fact that the domestic courts later examined a similar case and found that indefinite retention of biometric data after a criminal conviction was justified: first, in the High Court of Northern Ireland on 13 November 2012 and then on appeal to the Supreme Court on 13 May 2015 (see paragraphs 21- 22 above). Whilst it could be argued that this domestic case law meant that after 13 November 2012 at the earliest, a domestic challenge did not have reasonable prospects of success, there was nonetheless a period of eight years from November 2004 until November 2012 when the applicant had a remedy available to him, which he did not use.

43. Article 35 § 1 of the Convention requires that applicants make “normal” use of remedies before the “appropriate domestic body” (see Wright and Brown , cited above, § 51, 18 October 2016). In the present case, the Court considers that “normal” use of domestic remedies would have entailed challenging the retention of his biometric data in the context of legal proceedings within a reasonable timeframe after the data was retained (see paragraph 40 above). To find otherwise would undermine the intention of this inadmissibility criterion (see paragraph 36 above).

44. Finally, the Court notes that even if there were no effective domestic remedy available to the applicant after 13 November 2012, his DNA profile was in any event destroyed shortly after that date on 1 February 2013, possibly along with his DNA sample, which must have been destroyed by then at the latest (see paragraph 4 above). After that point, the authorities no longer retained the biometric data that forms the subject of his complaint.

3. Conclusion

45. In light of the above, the application must be rejected as inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously ,

Declares the application inadmissible.

Done in English and notified in writing on 18 May 2017 .

Renata Degener Kristina Pardalos              Deputy Registrar President