Finding the 'Right' Balance: Privacy Rights and Biometric Retention in Northern Ireland by Sophie Treacy

Page 44 Technology

Finding the ‘Right’ Balance: Privacy Rights and Biometric Data Retention in Northern Ireland

By Sophie Treacy, SS Law

In a world characterised by rapid scientific and technological development, it is no surprise that biometric technology, which enables police forces to identify individuals from DNA and fingerprint samples, has gained increasing currency in the field of crime prevention since the turn of the century. It is a fundamental principle of the criminal justice system to enhance the police force’s ability to effectively combat drug trafficking, corruption, and terrorism, which is in all of our interest. Nonetheless, other concerns weigh against this objective of equipping the police force with the most effective means of crime prevention possible. For instance, in the case of S and Marper v United Kingdom [2008], the Grand Chamber of the European Court of Human Rights (ECtHR) in Strasbourg ruled that the United Kingdom’s biometric data retention regime amounted to an infringement of privacy rights under Article 8 of the European Convention on Human Rights (ECHR). The applicants successfully challenged the indefinite retention of their DNA samples by the United Kingdom police force, after they had been acquitted on the grounds that it was an unjust infringement of their right to privacy. Whilst this decision heralded change to the biometric data retention practices followed by police forces in England and Wales, Northern Ireland is still in the process of responding to the Strasbourg Court. The concern underpinning the heel-dragging of the Police Service of Northern Ireland (PSNI) when it comes to conforming to ECtHR standards of biometric data retention is that it would undermine ongoing investigations by the Historical Investigations Unit (HIU) into deaths related to the Troubles in Northern Ireland. Herein, the tension between individual privacy rights on one hand, and effective criminal justice administration on the other, is particularly stark.

What one considers to be the right approach to balancing individual privacy rights against optimal police investigation practices turns on how utilitarian one is willing to be. In other words, the extent to which one thinks individual privacy rights should be limited in order to maximise the effectiveness of police investigations.

Those who place a high value on individual rights freedoms, and are deeply suspect of utilitarian political theory, will consider the United Kingdom’s old regime of biometric data retention for indefinite periods of time to be a disproportionate and illegitimate interference with individual privacy rights.

The other, more utilitarian, school of thought is that innocent citizens should have “nothing to fear” in having their biometric data stored indefinitely on a police database and accurate and efficient law enforcement, is in the interest of all, outweighs any infringement on individual privacy rights.

As an institution formed with the core objective of protecting individual rights against oppressive states, it is no surprise that the ECtHR arrived unanimously at the former position. In the unique case of Northern Ireland, however, with countless unresolved deaths in the aftermath of the Troubles, the latter position certainly seems at least somewhat reasonable. Indeed, Schedule 2 of the Criminal Justice Act (Northern Ireland) 2013, which has yet to be brought into operation, would render a huge amount of PSNI-held biometric data eligible for deletion. Sandra Peake, CEO of WAVE Trauma Centre in Northern Ireland, has flagged concerns that this Act would result in less than optimum conditions for HIU investigations. As with most issues of public policy that infringe individual rights, it comes down to a question of balance.

As proposed by former Northern Irish Minister for Justice, David Ford, one way to reconcile these competing interests could be to copy relevant biometric material currently held by the PSNI and transfer it to the Historical Investigations Unit (HIU) exclusively for investigative purposes and to delete it from regular PSNI databases. Indeed, this would go to resolve the issue of data deletion undermining the essential work of the HIU and bring the practice of the PSNI into line with Strasbourg case law and with the rest of the United Kingdom. This approach seems to satisfy the exigencies of privacy rights under Article 8 of the ECHR whilst remaining cognisant of other pressing public issues. In September of 2020, the Northern Irish Minister for Justice, Naomi Long, convened a public consultation on the reform of this Act where this proposal was raised. However, how this area will play out in Northern Ireland is yet to be seen.

In the wake of S and Marper v. UK, the case for sweeping police biometric databases in Europe has suffered a significant casualty at the hands of the Strasbourg Court. The net result, however, is a legislative regime in England and Wales that is holistic as opposed to overly utilitarian in its approach to retaining biometric data. Whilst the implementation of the ECtHR ruling in Northern Ireland is complicated by the PSNI potentially holding data of unconvicted persons involved in crimes committed during the Troubles, it is hoped that the current ongoing consultations will yield a solution that finds the right balance between affording full respect to privacy rights enshrined under Article 8, but equally does not undermine the ongoing investigation of the HIU in Northern Ireland.