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Investigating crime; and

Investigating crime; and ensuring the integrity of the criminal process Page 69 made of the data obtained. 200 However, in relation to intelligence-gathering by means of visual observation in public places, Article 8 is only engaged if the State action goes beyond mere observation and involves the active monitoring of individuals. 201 Searches of the person, including intimate searches, may fall within the scope of Article 8 where these involve a degree of coercion, for a voluntary submission to a search (for example, as in an airport) will not constitute an ‘interference’. 202 The taking and retention of fingerprints and DNA samples without consent will involve an interference with respect for private life as fingerprints contain unique information about the individual and their retention cannot be considered as neutral or insignificant, while cellular samples hold significant amounts of personal information, and DNA profiles provide a means of identifying genetic relationships and permit inferences concerning ethnic origin to be drawn. 203 Determining whether an interference with Article 8 is justified An interference with Article 8 rights must comply with a range of conditions if it is to be justifiable under the European Convention on Human Rights. These conditions are: (i) the interference must be in pursuance of a legitimate aim; (ii) it must be in accordance with the law; and (iii) it must be necessary in a democratic society. If the State cannot satisfy any of these conditions, there will be a finding of a violation of the guarantee. The justification advanced by a State for measures of surveillance will inevitably involve one of the prescribed reasons in the text of Article 8 such as national security, public safety, or for the prevention of disorder or crime. This will in principle not pose a difficulty for the State to meet this condition. The first substantive question in scrutinising whether any interference is justified will thus be in determining whether the interference is ‘in accordance with the law’. 200 Kopp v Switzerland, judgment of 25 March 1998 at paragraphs 51-53. 201 Peck v the United Kingdom, judgment of 28 January 2003 at paragraphs 57-63. 202 Gillan and Quinton v the United Kingdom, judgment of 12 January 2010 at paragraphs 61-66 (application of search powers under the Terrorism Act 2000, pp. 44-47: allowing individuals to be stopped anywhere and at any time and without notice or choice as to whether to submit were to a search could not be compared to searches of travellers at airports or of visitors to public buildings as these involved consenting to a search by choosing to travel or to visit). 203 S and Marper v the United Kingdom, judgment of 4 December 2008 at paragraphs 68-86.

The European Convention on Human Rights and Policing Page 70 ‘In accordance with the law’ Most obviously, an unauthorised interception, which takes place without legal basis, will constitute a violation of Article 8. 204 However, there is an expectation that domestic law will also provide sufficient legal regulation to protect against arbitrary interference: that is, the law must also meet the tests of accessibility and foreseeability. 205 Powers of search and seizure, and to subject individuals to surveillance, must have a sufficiently clear basis in domestic law. An administrative practice, even if it is complied with, is insufficient. 206 This is necessary in order to ensure that the scope and manner of the exercise of any discretion is adequately clear. A general power to take steps necessary for the investigation of crime is not a sufficient basis for specific measures, such as the interception of telecommunications. 207 It is necessary that the law contain provisions concerning the precise circumstances under which telecommunications can be intercepted, for what purpose any conversations recorded may be used and for how long they may be retained. 208 In addition, it serves to ensure that persons are in a position to foresee, with a degree of accuracy, the circumstances in which they may be subjected to the exercise of such powers. 209 ■ In Malone v the United Kingdom, the European Court of Human Rights found that the scope and manner in which powers to intercept communications could be exercised were not prescribed with sufficient certainty, and reiterated that ‘in accordance with law’ not only referred to the existence of domestic law but also to its quality, which had to be compatible with the notion of the rule of law. Domestic law must therefore determine with sufficient clarity both the scope of any discretionary authority conferred and the manner in which it may be exercised. 210 ■ In Perry v the United Kingdom, the covert videoing of the applicant on his arrival at a police station had not been ‘in accordance with law’ as the police had failed to comply with the procedures set out in a code of practice, the 204 MM v the Netherlands, judgment of 8 April 2003 at paragraphs 44-46 (recording of telephone conversation by one party with the assistance of the police but in the absence of preliminary judicial investigation and an order by an investigating judge as required by legislation: violation). 205 See p. 17 above. 206 Malone v the United Kingdom, judgment of 2 August 1984 at paragraph 79. 207 Kruslin v France, judgment of 24 April 1990 at paragraph 17. 208 Ibid. at paragraph 34. 209 Khan v the United Kingdom, judgment of 12 May 2000 at paragraph 26. 210 Malone v the United Kingdom, judgment of 2 August 1984 at paragraphs 67-68.