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Case Law

ECtHR, Gaughran v. the UK (2020)

Decision date
Deciding body
European Court of Human Rights (ECtHR)
Deciding body (Original name)
European Court of Human Rights
Type of Court (material scope)
European Court of Human Rights
Type of jurisdiction
Single jurisdiction system
Type of Court (territorial scope)
Supranational Court
International Court
Instance
Supranational ruling after exhaustion of all local remedies on national level
Status
Final
Project area
AI and data protection
Law area
Privacy / data protection
Fundamental rights protection
Biometric data
Outcome
Claim upheld

General Summary

The case of Gaughran v. The United Kingdom involved Mr. Fergus Gaughran, who challenged the indefinite retention of his DNA profile, fingerprints, and photograph by the Police Service of Northern Ireland (PSNI) who were using them for facial recognition software. This challenge was based on Article 8 of the European Convention on Human Rights, which protects the right to respect for private and family life. Gaughran had been convicted of driving with excess alcohol in 2008, a recordable offence, and argued that the policy of indefinite retention constituted a disproportionate interference with his rights under Article 8.

The European Court of Human Rights, assessing whether the interference was justified, examined the case under the criteria of legality, legitimate aim, and necessity in a democratic society. The Court noted a narrowed margin of appreciation for States when setting retention limits for biometric data of convicted persons and highlighted the lack of consensus among Council of Europe jurisdictions regarding the indefinite retention of such data.

Key points include:

The retention of Gaughran's biometric data and photograph was acknowledged as an interference with his right to private life.

The Court recognised that while there's a public interest in fighting crime, the indiscriminate and indefinite nature of the retention policy in the UK, particularly Northern Ireland, raised concerns.

The Court found that the regime did not sufficiently consider the seriousness of the offence, the individual's right to have their data deleted under certain circumstances, or the potential for review.

Ultimately, the Court concluded that the indefinite retention of Gaughran's biometric data and photograph was a violation of Article 8 of the Convention. This judgment emphasises the importance of proportionality and review mechanisms in the retention of personal data by state authorities, particularly concerning biometric information

Facts of the case

Mr. Fergus Gaughran, a British national, challenged the indefinite retention of his DNA profile, fingerprints, and photograph by the Police Service of Northern Ireland (PSNI). Gaughran had been arrested in 2008 for driving with excess alcohol, a recordable offence, and subsequently pleaded guilty. As part of the process, his biometric data was collected and, despite his conviction being spent after five years, the PSNI intended to retain this data indefinitely.

Gaughran argued that this policy of indefinite retention constituted a disproportionate interference with his rights under Article 8, especially considering the minor nature of his offence and the lack of a custodial sentence. He sought judicial review, asserting that the policy lacked sufficient safeguards, did not consider the seriousness of offences, and offered no real opportunity for individuals to have their data deleted. Despite his efforts, both the High Court of Justice of Northern Ireland and the Supreme Court upheld the legality of the indefinite retention policy, prompting Gaughran to bring his case before the European Court of Human Rights. The Court was tasked with determining whether the UK's policy of indefinitely retaining biometric data from individuals convicted of recordable offences was compatible with the Convention's protections for private life.

Measures, actions, remedies claimed
  • Request for establishment of a violation of Article 8 of the European Convention on Human Rights
Individual / Collective enforcement
Individual action
Nature of the parties
  • Private individual
  • Public
Type of procedure
Ordinary procedure
Reasoning of the deciding court

The Court acknowledged that the collection and retention of Gaughran's biometric data by the PSNI indeed constituted an interference with his right to private life under Article 8. This finding was uncontested by the UK Government, which nevertheless argued that the interference was justified as being in accordance with the law, pursued a legitimate aim (the prevention of disorder or crime), and was necessary in a democratic society.

The Court examined the case through the lenses of legality, legitimate aim, and necessity. On legality, it concurred with the domestic courts' view that the legal framework allowing for the retention was sufficiently clear and detailed. However, it expressed concerns over the broad and imprecise nature of the powers granted for retention and the absence of safeguards, especially relating to the lack of criteria for assessing the necessity of continued retention.

Regarding the legitimate aim, the Court readily accepted that the retention of biometric data serves the purpose of preventing crime and assisting law enforcement, which aligns with the interests of national security and public safety outlined in Article 8.

The most significant scrutiny was on the necessity of indefinite retention in a democratic society. Here, the Court considered several factors: the severity of the offence, the individual's right to have their data deleted under certain conditions, the proportionality of indefinite retention, and the availability of safeguards against abuse. The Court highlighted a lack of consensus among Council of Europe member states on indefinite retention, observing that most states have established specific retention periods or conditions under which biometric data must be reviewed or deleted. This lack of consensus, according to the Court, narrowed the margin of appreciation available to the UK, calling for stricter scrutiny of the UK's policy.

The Court was particularly concerned that the retention policy did not distinguish based on the seriousness of the offence, did not allow for individual circumstances to be considered, and provided no mechanism for individuals to request deletion of their data. It deemed these aspects disproportionate and criticised the policy's blanket and indiscriminate nature. The Court also noted the evolution of technology and its impact on privacy rights, emphasising the increased sensitivity and potential misuse of biometric data over time.

Ultimately, the Court concluded that the indefinite retention of Gaughran's biometric data and photograph was not justified under Article 8 of the Convention. It found that the UK's policy overstepped the necessary balance between the rights of the individual and the interests of the community, thus violating Gaughran's right to respect for his private life. This judgment underscores the importance of proportionality, differentiation based on the seriousness of offences, and the availability of safeguards and review mechanisms in the retention of personal data by state authorities, particularly in relation to biometric information.

Conclusions of the Court

The Court holds that there has been a violation of Article 8 of the Convention and that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.

AI system(s) involved
  • Specific intended purpose AI

Fundamental rights involved
  • Right to data protection
  • Right to privacy
  • Right to non-discrimination
Principles expressly applied
  • Due process
  • Non-discrimination
  • Proportionality
  • Rule of law
Reference to national provisions
  • Protection of Freedoms Act 2012 of England and Wales
  • Protection of Freedoms Act 2014 of Northern Ireland
  • Section 64(1) of the Police and Criminal Evidence Act 1984

Case author
Ivo Emanuilov
Researcher
LIBRe Foundation