ECHR rules over British criminal law on personal data regarding Article 8

On February 13th, 2020 the ECHR released a decision on the indefinite retention of personal data (DNA profile, fingerprints and photograph) of a man convicted for driving with excess alcohol in Northern Ireland.

The offender, a British national, was arrested and convicted for driving with excess alcohol which is a “recordable offence” punishable by imprisonment. During the process the police took a photograph, fingerprints and a DNA sample from the accused, who was given a fine and banned from driving for 12 months.

After spending his conviction in 2013 the defendant’s DNA sample was destroyed in 2015 upon his request, but the digital version of his DNA profile, as well as his fingerprints and photograph were still retained on a time-unlimited basis by the Police Service of Northern Ireland.

The Court ruled that there was an interference with the defendant’s private life, protected by the article 8 of the ECHR, as no justification related to the seriousness of the offence or the need for indefinite retention was provided by the United Kingdom to legitimate such retention.

The absence of “any real possibility of review” also motivated the Court’s decision to pronounce the unfair balance between competing public and private interests, given that the UK had to ensure certain safeguards if they wanted to retain such data indefinitely.

The analysis is remarkable because through the use of the European Convention on Human Rights, the Court managed to rule on the purpose of the processing carried out by the police, and the appropriate retention period of personal data, which are both regulated by the GDPR.

Therefore, we can see how in future cases the Court could use Article 8 of the European Convention on Human Rights to ensure the protection of personal data, in addition with the action of national regulation authorities under GDPR.

This decision is not final, as it can still be challenged before the Grand Chamber of the Court for a three-month period.