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Victory for Camlough man in human rights case against PSNI

A Camlough man has won a decade-long legal battle with the PSNI against the indefinite storage of his DNA profile following a drink driving conviction.

On Thursday the European Court of Human Rights (ECHR) ruled that the PSNI’s retention of Fergus Gaughran’s DNA profile breached his privacy rights and “amounted to an interference” with his private life.

Mr Gaughran (47) admitted driving with excess alcohol when he was stopped by police in Camlough in October 2008.  Following his arrest, he provided a breath sample and police also took his fingerprints, his photograph and a DNA sample, in the form of a mouth swab.  Having pleaded guilty to the offence, he received a one-year driving ban.  

His conviction was spent in 2013 and in 2015 Mr Gaughran’s physical DNA sample was destroyed at his request.  However, the PSNI retained his digital DNA profile, photograph and fingerprints.

Mr Gaughran’s long running legal battle began in 2009 when he took a test case to court arguing against the PSNI’s overall policy of indefinitely storing the biometric data of anyone with a conviction was a breach of his right to privacy and took no account of the seriousness of his offence.

The case  was dismissed by the High Court in Belfast in 2012 and again by the Supreme Court in 2015.

Mr Gaughran then took his fight to the European Court of Human Rights which on Thursday ruled in his favour with a unanimous judgment that his rights had been breached.

The seven judges agreed that the PSNI’s decision to retain Mr Gaughran’s personal data indefinitely was a “violation” of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

Central to the judgment was that Mr Gaughran’s data was retained “without reference to the seriousness of his offence and without regard to any continuing need to retain that data indefinitely”.

The ruling said: “The Court found that the retention of the applicant’s DNA profile, fingerprints and photograph amounted to an interference with his private life which had pursued the legitimate purpose of the detection, and therefore, prevention of crime.”

The court found that the PSNI were only able to delete biometric data and photographs in “exceptional circumstances”.  This effectively meant that Mr Gaughran could not request a review of the retention of his data, as there was “no provision permitting deletion if conserving the data no longer appeared necessary in view of the nature of his offence, his age, or the time that had elapsed and his current personality”.

“The Court found that the nature of those powers failed to strike a fair balance between the competing public and private interests,” the judgment stated.

Chief Commissioner of the Northern Ireland Human Rights Commission Les Allamby welcomed the ECHR judgment in Mr Gaughran’s case.

He said: “The Court held that the indiscriminate nature of the powers of retention of the DNA profile, fingerprints and photograph in the circumstances of this case had failed to strike a fair balance.  It held it was disproportionate given the lack of any relevant safeguards including the absence of any real review.

“The Commission has engaged extensively and productively with the Police Service of Northern Ireland towards publishing a clear and public policy on the retention of biometric material including provision for review. The policy will have to take on board the judgment as soon as possible.  Our preference beyond this will be to see legislation put in place that effectively ensures the safeguards envisaged by the Court are enshrined in law.”