THE POLICE SERVICE of Northern Ireland (PSNI) breached human rights law by keeping a Newry man’s DNA indefinitely, a court ruled this morning.

The European Court of Human Rights found in favour of Fergus Gaughran in a long-running legal battle over a DNA profile taken by police following an old drink-driving conviction.

Seven judges found unanimously that the PSNI had breached Gaughran’s privacy rights by keeping his DNA information indefinitely without putting in place safeguards that could help him petition for its eventual destruction.

The decision could have implications for the DNA database in the Republic of Ireland, which is one of only a handful of European countries to allow the indefinite retention of the DNA of petty criminals.

Paul Fitzsimons of Fitzsimons Mallon Solicitors said that the judgment was “vindication of Mr Gaughran’s decade of challenge” through various courts.

The case can be traced to the early hours of 14 October 2008, when Gaughran was stopped at a police checkpoint between Crossmaglen and Camlough, County Armagh. Police took a breath sample, as well as other personal information such as fingerprints and DNA.

Gaughran was found to be over the limit and pleaded guilty to driving with excess alcohol. He was fined £50 and disqualified from driving for 12 months. The conviction became spent in 2013.

But the PSNI kept Gaughran’s DNA profile in its database. Gaughran objected, and began legal action to get it removed.

Lack of safeguards

DNA profiles are derived from DNA samples and are used to identify people. Police can compare a DNA profile found at a crime scene with the profiles in the database to work out who the crime scene DNA belongs to.

As of 2015 there were over 123,000 profiles on Northern Ireland’s DNA database. The NI Human Right Commission says that the police have refused to provide more up to date figures.

Ruling today in Gaughran’s favour, the European Court of Human Rights found that retaining DNA profiles in order to detect and prevent crime was a legitimate purpose for the police to pursue. But it felt there were not enough safeguards in place to protect people’s privacy rights.

The Strasbourg-based court said that “the applicant’s biometric data and photographs were retained without reference to the seriousness of his offence and without regard to any continuing need to retain that data indefinitely.

“Moreover, the police are vested with the power to delete biometric data and photographs only in exceptional circumstances… there is no provision allowing the applicant to apply to have the data concerning him deleted if conserving the data no longer appeared necessary”.

It accordingly found that the British authorities had breached Gaughran’s right to respect for private and family life under Article 8 of the European Convention on Human Rights. He was not awarded any compensation, but the PSNI will have to adjust its policy on DNA retention to make it compliant with the judgment.

Implications for Ireland 

Gaughran first requested the destruction of his profile in 2009. When the PSNI refused, he took legal action.

His case made it from the High Court of Northern Ireland to the UK Supreme Court, where he lost — although the court’s sole Northern Irish judge issued a dissenting judgment backing Gaughran. Lord Kerr wrote in his dissent that “the current system operates on the assumption that all persons who, at any time, commit any offence are potential suspects in any future crime. No evidence to support this has been provided”.

A national DNA database was set up in the Republic of Ireland in 2015. Forensic Science Ireland had collected 26,649 DNA profiles by the end of 2018, and says that the database assisted in 867 investigations that year.

Today’s decision could have implications for that database too. The court pointedly notes in its judgment that, of 31 European countries surveyed, only the UK, Ireland, Cyprus, North Macedonia and Montenegro allow the indefinite retention of DNA profiles following minor criminal convictions.

Fitzsimons said that the judgment has “wide reaching implications on the indefinite retention of DNA and photographs”. He added that the British and Irish governments would need to put in place “a system of finite retention and a meaningful and proportionate system enabling every citizen to have all their retained DNA and photograph material deleted and destroyed after an appropriate period of time”.

The Northern Ireland Human Rights Commission said that it would like to see legislation put in place “that effecitvely ensures the safeguards envisaged by the Court are enshrined by law”.