Chapter 20 Guidance on answering the exam questions

1. Critically evaluate the extent to which Articles 5 and 8 have an impact on the exercise of their powers by the police.

• This question invites disclosure of the application of Article 5 and 8 to various powers of the police.

• Discuss Article 5 its overall purpose and its terms in general.

• Consider an arrest. The law authorising arrest must meet the criteria of foreseeability (part of the general idea of lawfulness in Article 5(1)) but also the criteria of Article 5(1)(c) which requires that, at the least, an arrest be based on reasonable suspicion.

• Article 5 goes further and requires in Article 5(3) and (4) proper judicial supervision of an arrest. Issues such as pre-charge detention after arrest and bail are important here. The essential need is for such issues to be dealt with promptly by a magistrate.

• Article 8 guarantees the right to respect for private life and this can engage with police powers in a number of ways.

• In particular there are various situations in which the police take, retain, store and use personal information. This involves an interference with private life and, therefore, must be justified in terms of Article 8(2).

• This means that, first, the powers the police have must be found in laws which are accessible, foreseeable and non-arbitrary. The last point is very important since it means that there must proper safeguards to prevent misuse of personal data. As a matter of law this is a matter for the courts – there is little margin of appreciation (e.g. Marper v UK).

• Secondly, the use of personal data must be for a legitimate purpose given in Article 8(2). One such purpose involves the reduction of crime, so this may not be a big issue.

• Thirdly, the law must be able to ensure that the proportionality of any interference with personal data by the police can be assessed, in the end by a judicial body.

• In conclusion you may think that, normally, police powers can be exercised compatibly with Article 5 and Article 8 but that this state of affairs is the result of responses to a number of cases in which police powers have been found wanting and in need of adjustment.

2. As a lawyer for the police you are tasked with writing a briefing paper which discusses the restraints on their powers, sourced in Convention rights:

1. to retain data, including DNA profiles and also records of criminal convictions and all recorded encounters with the police. The aim is that this data would be available to any police force to help it solve any crime and also to other public authorities which might find the information useful;
2. to make public any criminal convictions of any person if the police think this will assist in the investigation of any crime.

Provide the basic outline on which the briefing paper will be written.

• By way of introduction point out the reasons why Convention rights are relevant, as a matter of domestic law, to the exercise of their powers by the police: police are bound by Convention rights because they are public authorities and because the statutes under which they act must be interpreted for compatibility with Convention rights (unless a declaration of incompatibility is issued).

• At issue is Article 8 – because the taking, retention, storage and use of personal information involves and interference with the right to “private and family life…and correspondence”. There should be a general discussion of Article 8 as a qualified right.

• The focus of any Article 8 examination will be on the safeguards to prevent abuse. Questions such as who authorises this use of data, against whom can the authorisation be made, how is the information to be stored, for how long, etc. In particular controls over the use by other authorities in order to prevent abuse will be important. Note that such safeguards need to be present to prevent arbitrariness. As matters relating to the legality of authorisation, there is likely to be little margin of appreciation available to states.

• A good example is Marper v UK where the ECtHR found a breach of Article 8 in respect of a wide ranging, indiscriminate power to retain DNA profiles.

• Similar provisions apply to the disclosure by the police of information. The question is whether, when the information was obtained, the individual had a “reasonable expectation of privacy”. If so, Article 8 applies and so the kind of safeguards outlined above need to apply. In R (T) v Manchester Police police powers to disclose offences (which would otherwise be “spent”) to certain employers and authorities were held by the UKSC to violate Article 8 because of inadequate safeguards and because the power was indiscriminate and hence so subject to a proportionality judgement in an individual case. The law changed a little and in Gallagher the Supreme Court held that these new regulations were sufficiently specific and contained sufficient safeguards to meet the ‘by law’ test found in Article 8.
• A conclusion might be that such powers can be exercised in ways that involve justified interferences with Article 8 rights – but that it is of great importance to ensure that there are adequate safeguards and, also, means for ensuring that the law requires a proper proportionality assessment of particular cases.