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Investigating crime; and

Investigating crime; and ensuring the integrity of the criminal process Page 73 best determined by domestic authorities, and the Court will thus focus upon whether there were ‘adequate and effective guarantees against abuse’ in each case. 214 A written record of decisions made, together with the basis on which they were taken, should also be kept in order to facilitate accountability and transparency. Assessment of the existence and effectiveness of safeguards prohibiting misuse will allow the Court to ensure that domestic decision-makers have addressed the existence of a pressing social need. Therefore the Strasbourg Court’s assessment of the relevancy and sufficiency of the reasons for any interception or monitoring will normally be subsumed by examination as to the quality of domestic safeguards, and in particular whether domestic decision-makers have taken into account circumstances such as ‘the nature, scope and duration of the possible measures, the grounds required for ordering such measures, the authorities competent to permit, carry out and supervise such measures, and the kind of remedy provided by the national law’. 215 The degree of intrusiveness is relevant, for while rather strict standards apply to certain forms of surveillance, such as surveillance by telecommunications, these requirements are less demanding where the measures are less invasive, as in the case of surveillance of movements in public places. 216 But careful scrutiny of the reasons advanced for an interference is always required, to ensure that the reasons are indeed proportionate and relevant, particularly if the confidentiality of the surveillance is subsequently compromised. ■ In Peck v the United Kingdom, the applicant had been unaware that he was being filmed by a closed circuit television at the point where he attempted to commit suicide in a deserted public street, but the filming had allowed the police to render medical assistance. Subsequently, the local administration after obtaining copies of the tapes had released still photographs and video footage of the immediate aftermath of the incident in an attempt to portray the advantages of CCTV. This material had appeared in newspapers and on television, and had allowed the applicant to be identified. For the Strasbourg Court, while the monitoring by means of photographic equipment of the actions of an individual in a public place would not in itself amount to an interference with private life, the recording of data in a systematic or permanent manner could well do so. Here, the incident had been seen to an extent which far exceeded any exposure to a passer-by or to security observation, and 214 Kennedy v the United Kingdom, judgment of 18 May 2010 at paragraphs 155-170. 215 Klass and Others v Germany, judgment of 6 September 1978 at paragraph 50. 216 Uzun v Germany, judgment of 2 September 2010 at paragraphs 49-53, 64-74, and 77-81.

The European Convention on Human Rights and Policing Page 74 had been to a degree surpassing what the applicant could reasonably have foreseen. The disclosure thus involved a serious interference with the right to respect for his private life, and in the circumstances had also constituted a violation of Article 8 as there had not been relevant and sufficient reasons to justify the direct disclosure of material without obtaining the applicant’s consent or masking his identity. 217 ■ In S and Marper v the United Kingdom, the taking of fingerprints and DNA samples from two applicants who were suspected, but never convicted, of crimes was held to constitute a violation of Article 8. The data was to be retained without a prescribed time limit. One of the applicants had been an 11-year-old minor when the data had been taken. It was readily accepted that the retention of the data pursued the legitimate aim of the prevention of crime by assisting in the identification of future offenders (and that the extension of the database had indeed contributed to the detection and prevention of crime). The principal failing was in respect of the proportionality of the measures. It could not be concluded in the case of the two applicants who had merely been suspected but never convicted of certain criminal offences that the retention of their fingerprints, cellular samples and DNA profiles could be justified. The consensus in other European law and practice required retention of data to be proportionate in relation to the purpose of collection, and also limited in time. There was a real risk of stigmatisation, for persons who had not been convicted of any offence (and who were in any event entitled to the presumption of innocence) were treated in the same way as those convicted of crimes. Indeed, in respect of young persons, the retention of such data could be particularly harmful in view of the importance of their future development and integration into society. In S and Marper v the United Kingdom, the relevant legal provisions allowed for the taking of DNA samples and fingerprints from every person arrested on suspicion of any offence. This information could be retained indefinitely, regardless of whether the person was convicted or not. Samples and fingerprints could be used for speculative searches in respect of unsolved crimes. The Court held that the ‘blanket and indiscriminate nature’ of these powers failed ‘to strike a fair balance between the competing public and private interests…’. The interference with the right to respect for private life was, consequently, held to be disproportionate and therefore in violation of Article 8. 218 217 Peck v the United Kingdom, judgment of 28 January 2003 at paragraphs 76-87. 218 S and Marper v the United Kingdom, judgment of 4 December 2008 at paragraphs 95-99 and 105-126.