BOYCE proti Irsku

FIFTH SECTION

DECISION

Application no. 8428/09
Michael BOYCE
against Ireland

The European Court of Human Rights (Fifth Section), sitting on 27 November 2012 as a Chamber composed of:

Mark Villiger, President,
Angelika Nußberger,
Ann Power-Forde,
André Potocki,
Paul Lemmens,
Helena Jäderblom,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 2 February 2009,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Michael Boyce, is an Irish national, who was born in 1944 and lives in Mullingar, Ireland. He was represented before the Court by Mr P.J. Groarke, a lawyer practising in County Longford, Ireland.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The applicant’s arrest and taking the blood sample

3. On 10 July 1996 the applicant was arrested under section 4 of the Criminal Justice Act 1984 on suspicion of rape of the complainant at her home in 1989. A police officer (an officer of An Garda Síochána) cautioned him to the effect that he was not obliged to speak but anything he might say might be given in evidence. He was taken to a police station where he was informed by the police that they had information that he had been involved in other sexual offences against the same complainant. The applicant denied any involvement in the alleged offences.

4. A police officer asked the applicant whether he would provide a sample of his blood and the applicant agreed. The sample was taken in the police station by a medical doctor with the consent of the applicant. The applicant was released from custody. He was then charged with nine sexual offences contrary to, inter alia, the Criminal Law (Rape) Act 1981 against the complainant. Those offences took place over a period of over 10 years (1983 to 1994) while the complainant was 55-66 years of age. The applicant did not dispute during his trial (see below) that he had provided the sample voluntarily but he argued that he had not been cautioned about the use that could be made of the sample. The trial judge found that he had been given the appropriate caution (that he was not obliged to give any sample but that any tests carried out on the blood sample might be admitted in evidence against him) and that he had fully understood it. It was not disputed that the sample had been taken under the common law and not pursuant to the Criminal Justice (Forensic Evidence) Act, 1990 (“the 1990 Act”).

2. The trial

5. In October 1997 he was re-arrested and returned for trial before the Central Criminal Court (“CCC”). His trial began on 16 October 2000.

6. The trial judge tried, as a preliminary issue in the absence of the jury, the admissibility of the DNA evidence drawn from the blood sample. The applicant had argued that he had not been properly cautioned and that the sample had been unlawfully taken because the common law power, on which the police relied, had been ousted by the 1990 Act. The trial judge heard oral evidence from relevant police officers, the applicant and the relevant doctor: the trial judge found that the applicant had been cautioned by the police (that he was not required to provide a sample but that, if he did so, the sample could be analysed and the results admitted against him at trial) and that he had understood the caution. The trial judge noted that, having given a sample, the applicant had then signed a statement, after he had consulted his solicitor, in which he accepted that he had volunteered the sample after such a caution. The trial judge concluded that he had been properly cautioned prior to giving the sample. He also found that the common law power to obtain a blood sample remained and co-existed alongside that of the 1990 Act so that the common law was a valid legal basis for the taking of the voluntary blood sample. The trial judge, in his ruling admitting the evidence, did so principally on the basis of section 2(11) of the 1990 Act: it stated that the powers conferred on the police under the Act were without prejudice to other powers exercised by them which meant that the power of the police to invite persons to voluntarily provide a blood sample applied in this case and was unaffected by the provisions of the 1990 Act.

7. The complainant did not identify the applicant in her evidence but stated that the offences had been committed by the same man since, inter alia, the perpetrator referred to earlier incidents when later assaulting her. The DNA evidence was key: the prosecution’s case was that the DNA evidence linked the applicant to two of the offences (1989 and 1991) and, if the jury were to find that the DNA evidence established his guilt for those two offences, it was also entitled to conclude that the same person committed all or any one of the other offences. The trial ended on 17 November 2000 when the applicant was convicted by jury on six counts of rape, attempted rape, indecent assault or sexual assault from 1983-1994. In March 2001 he was sentenced to concurrent terms of 8 years’ imprisonment.

3. The Court of Criminal Appeal (“the CCA”)

8. On 9 March 2001 the applicant applied for leave to appeal to the CCA mainly contesting the lawfulness of the blood sample arguing that the only lawful basis for it being obtained, retained and used was the 1990 Act. Of the 21 grounds of appeal, the first and last referred to the applicant’s constitutional rights: that the trial judge had erred in finding that the sample had been lawfully taken under the common law and thus failed to vindicate his constitutional right to bodily integrity; and that the police had failed to inform the applicant that his sample would be used to investigate offences other than that relating to 1989 contrary to his rights to bodily integrity, to privacy, not to incriminate himself and to fair procedures.

9. His appeal to the CCA was heard on 23 and 24 June 2003. Further submissions were requested and filed in October 2003. On 17 February 2005 he was released from prison.

10. By judgment of 21 December 2005 the CCA rejected his appeal. It reviewed in some detail and confirmed the trial court’s factual findings as regards, inter alia, the caution given to the applicant prior to giving the sample. It also underlined the legality under the common law of collecting forensic evidence on a voluntary basis from person in custody:

“While the conduct of criminal investigations by the [police] must be carried out within the ambit of the law and in accordance with the law, many of the procedures which they adopt may not require the exercise of powers expressly conferred by statute. The interviewing and taking of statements from witnesses to a crime, the entry upon the scene of a crime, its examination and taking away of forensic evidence are just some examples of investigation methods which are carried out on the basis of the consent and cooperation of the citizens concerned. ... An example would be where a householder permits a [police officer] to enter or enter and search premises without the need for a search warrant.

Cooperating citizens may willingly provide the [police] with forensic evidence such as fingerprints, clothing or blood samples to assist them in their inquiries. A rape victim may willingly provide a sample of pubic hair so that the [police] may determine whether it matches a pubic hair discovered in the course of their investigations in circumstances which, if matched, may implicate a suspect. Of course the gathering of such evidence and its use at a criminal trial from persons, who at the trial have the status of witnesses rather than that of an accused, is rarely a source of controversy. ... Inevitably, ... the obtaining of forensic evidence from persons in custody may often be a source of legal controversy at a trial and subject to particular scrutiny as to its lawfulness and its voluntary nature. ... It has long been the case that the prosecution are entitled to introduce such forensic evidence obtained from a person in custody at a trial provided that it was obtained voluntarily and with the full consent of the person in custody. Provided consent is fully and voluntarily given and the person in custody is of full age and not otherwise suffering from any legal or other incapacity, they may give a forensic sample, including in response to a [police] Garda request, and the [police] may take it or receive it. That is an essential part of the evidence gathering aspect of a criminal investigation provided it is done within the ambit of the law but it has not always been and is not necessarily dependent, as such, on the existence of express statutory powers to collect such voluntarily provided forensic evidence. In short, it is not unlawful to take voluntarily provided forensic samples from persons in custody. ...

It would indeed be extraordinary if [parliament] contemplated that any forensic sample freely and voluntarily provided by a person in custody and then forensically examined by the [police] which was lawful before the passing of the Act should be considered unlawful after the passing of the Act without any express provision to that effect, even though it was provided without any element of coercion and when the consequences of the refusal were nil from the point of view of an accused.”

11. The CCA went on to find that the 1990 Act created a statutory regime distinct from the common law and, further, that that regime did not have the effect of abolishing the existing common law power. Both legal bases, statutory and common law, subsisted. The 1990 Act extended existing law; it did not abrogate it. The DNA evidence, drawn from the sample taken under the common law, was admissible. Finally, the CCA did not consider tenable the factual presumption underlying the 21st ground of appeal because the applicant had never disputed that he had given the sample voluntarily and it was the uncontested evidence of the prosecution that the police had informed him that they were investigating, not only a sexual offence committed against the complainant in 1989, but also his involment in other sexual offences against her.

4. Appeal to the Supreme Court under section 29 of the Courts of Justice Act 1924

12. By perfected order (not submitted) of the CCA of 22 October 2007, the CCA gave leave to appeal pursuant to section 29 of the Courts of Justice Act 1924 on a point of law of general public importance desirable in the public interest to be examined by the Supreme Court. The Supreme Court judgments recorded the text of the question certified by the CCA as follows:

“Is it lawful for a member of An Garda Siochana, when taking a sample of blood from a person in custody who voluntarily agrees to provide that sample for the purpose of forensic analysis, to do so without having invoked the provisions of Section 2 of the Criminal Justice (Evidence) Act, 1990?”

13. By Notice of Motion dated 28 May 2008 (grounded upon an affidavit of the same date and a Notice of Appeal dated 24 October 2007), the applicant requested, pursuant to section 59 of the Criminal Justice (Amendment) Act 2007, leave to add 7 grounds of appeal for the Supreme Court’s consideration. The first two and last grounds read as follows:

“1. That the Court of Criminal Appeal erred in law or erred on a question of mixed fact and law in holding that Section 2 of the [1990 Act] did not preclude [the police] from taking a voluntary forensic sample from a person in custody without invoking the provisions of the said Act and that the said section of the 1990 Act was designed to enable [the police] to obtain such forensic samples which might otherwise be refused and to provide for admissibility of such evidence arising from the refusal, and that the neglect, failure or refusal by the [police] to take the said sample under the aegis of the said Act was ultra vires, contrary to Article 15.2.1 and Article 40.3.1 and 2 of the Constitution.

2. That the learned trial judge erred in law and on the facts in ruling that the blood sample from the Accused for the purpose of DNA testing was admissible in evidence, that it was lawfully taken and/or did not require to be taken pursuant to the Criminal Justice (Forensic Evidence) Act 1990, and thereby failed to vindicate the Accused’s Constitutional Rights to his bodily integrity. ...

7. That in all the circumstances of the case of the case the conviction of the Appellant is unsafe and unsatisfactory.”

14. On 18 November 2008 the Supreme Court rejected (by a majority) the appeal. All judges agreed that it had been long accepted that the police could, under the common law, obtain information and samples from a person so long as that person’s consent was given voluntarily. Indeed, even the judge who dissented on the question of the effect of the 1990 Act noted that the applicant had accepted that there had been a power to take samples by consent under the common law, he referred to the CCA judgment on the issue cited at paragraph 10 above and he added:

“22. Neither the inviolability of the dwelling nor the right to bodily integrity of the human individual, though these are personal rights which enjoy constitutional protection, prevents individuals from agreeing to provide access to the one and samples from the other. Most citizens will perceive it as their duty to assist in the investigation of crime. Many will wish to eliminate themselves from suspicion; many others will wish to assist in finding the perpetrator of a crime. Where evidence is thus freely and voluntarily provided by a person at liberty, no principle of the criminal law prevents material thus gained in the course of police investigation from becoming the subject-matter of evidence at a criminal trial against the provider.”

15. The Supreme Court found that the 1990 Act did not deprive the police of their ability to take samples under the common law since both the statutory and common law schemes for taking samples co-existed. It was satisfied that the matter in issue was not the application of a policy of the Director of Public Prosecutions (“DPP”), (whereby he had advised that, after the coming into force of the Act, the police could still take samples that were provided voluntarily and on consent) or whether that policy was appropriate or not. Rather, the matter in issue was a question of law. The advice of the DPP was an interpretation of the 1990 Act. The issue was whether that interpretation was correct. The Supreme Court conducted a detailed construction of the 1990 Act in order to ascertain the intention of the legislature. It noted that the common law approach to obtaining information by consent was well established. It was a fundamental aspect of the approach to investigating crime. It was a practical approach. Any alteration to such a fundamental aspect of criminal investigation would require a clear expression of an intention to change. No such approach was apparent from the words of the Act.

It further noted that section 2(11) of the 1990 Act expressly stated that the powers conferred by that section were without prejudice to any other powers exercisable by a member of the Garda Síochána: it thereby expressly retained powers of the Garda Síochána. The Supreme Court went on to note the detrimental consequences to a ‘person’ under the 1990 Act and it gave, as an example, the ‘inference’ which might be raised at the trial, and upon which a jury might rely for corroboration. There was also the possibility of the offence of obstruction under section 2(9) of the 1990 Act. No such detrimental consequences arose under the common law. Therefore it considered that to apply the statutory scheme in the absence of a clear mandatory requirement under statute would be a step too far. The Supreme Court was satisfied that the Oireachtas did not intend to exclude the common law when it passed the 1990 Act and that the common law might also be applied to a person detained or in prison as referred to in section 2 of that Act.

Finally, the Supreme Court noted two other grounds of appeal (Nos. 5 and 6) which the applicant’s counsel had highlighted in his oral submissions and which it rejected.

16. One judge dissented on the effect of the 1990 Act and considered that, when a person was in custody, it would be absurd, “inconsistent and potentially unfair” to ignore the statutory regime which he considered the Government to have intended would apply in such circumstances. He regarded the first three grounds of the applicant’s appeal as concerning the question of the “admissibility of the evidence”. He found that the failure to apply the 1990 Act was not an interference with the constitutional rights of the applicant since he had freely agreed to provide a sample of his blood. He also considered that this failure to follow the statutory regime did not impact on the admissibility of the DNA evidence: while the blood sample had been obtained unlawfully, it had led to the production of objective material evidence linking the applicant to the offences so that “no breach of a constitutional right was involved”.

B. Relevant domestic law and practice

1. The Constitution

17. Article 15 concerns the constitution and powers of Parliament (the Oireachtas) and, in so far as relevant, provides as follows:

“2.1 The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.”

18. Article 40 is entitled “Personal Rights” and, in so far as relevant, reads as follows:

“40.3.1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

40.3.2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”

2. Arrest under the Criminal Justice Act 1984 (“the 1984 Act”)

19. Section 4(2) of the 1984 Act provides as follows:

“Where a member of the Garda Síochána arrests without warrant a person whom he, with reasonable cause, suspects of having committed an offence to which this section applies, that person may be taken to and detained in a Garda Síochána station for such period as is authorised by this section if the member of the Garda Síochána in charge of the station to which he is taken on arrest has at the time of that person’s arrival at the station reasonable grounds for believing that his detention is necessary for the proper investigation of the offence.”

3. Taking of samples from those in custody

(a) The two legal bases for taking a blood sample from a person in custody

20. The police may obtain samples on a voluntary basis from persons in custody under the common law. There are no specific rules laid which regulate the taking, use, retention or destruction of such samples. No inferences may be drawn from a refusal to provide a sample.

21. The 1990 Act also permits the taking of samples from persons in custody. It provides for authorisation to request samples on a consent basis, it allows the drawing of inferences in case of a refusal and it governs the use of samples pre-trial and post-trial including destruction.

22. In 1995 a circular of the Director of Public Prosecutions (“DPP”) advised that, after the coming into force of the 1990 Act, the police could still take samples that were provided voluntarily and on consent. If consent was obtained, the sample was taken under common law rules. If the person refused, a written consent was requested. If obtained, the sample was taken under the 1990 Act and, if refused, the provisions of the 1990 Act on negative inferences could come into play.

(b) The 1990 Act

23. The long title to the 1990 Act states it to be “An Act to amend and extend the law to authorise the taking of bodily samples for forensic testing from persons suspected of certain criminal offences”. It came into force on 5 June 1992 and it applies only to persons in custody under section 30 of the Offences Against the State Act 1937 and under the 1984 Act.

24. Section 2 provides the primary power to take samples:

“(1) Subject to the provisions of subsections (4) to (8) ..., where a person is in custody ..., a member of the Garda Síochána may take, or cause to be taken, from that person for the purpose of forensic testing all or any of the following samples, namely -

(a) a sample of -

(i) blood, ...

(4) A sample may be taken under this section only if -

(a) a member of the Garda Síochána not below the rank of superintendent authorises it to be taken, and

(b) in the case of a sample mentioned in subparagraph (i), ... of paragraph (a) of subsection (1) of this section ... the appropriate consent has been given in writing. ...

(6) Before a member of the Garda Síochána takes, or causes to be taken, a sample under subsection (1) of this section, or seeks the consent of the person from whom the sample is required to the taking of such a sample, the member shall inform the person-

(a) of the nature of the offence in which it is suspected that that person has been involved,

(b) that an authorisation has been given under subsection (4)(a) of this section and of the grounds on which it has been given, and

(c) that the results of any tests on the sample may be given in evidence in any proceedings. ...

(11) The powers conferred by this section are without prejudice to any other powers exercisable by a member of the Garda Síochána.”

25. According to Section 3, where consent required under section 2 is refused without good cause following an appropriate caution, then a trial court may draw inferences from that refusal and the refusal with such inferences can amount to corroboration of any evidence in relation to which the refusal is material. Section 4 of the Act provides for the destruction of records and samples where proceedings are not instituted within 6 months of taking the sample or where the person is acquitted or discharged or the proceedings are discontinued.

COMPLAINTS

26. The applicant took issue with the existence of two legal bases which could be relied upon by the police to obtain, retain and use a blood sample from a person in custody and with the manner in which the police chose the common law basis to the exclusion of the 1990 Act.

27. He had three complaints in this respect. In the first place, he complained under Article 6 about the procedure for obtaining, retaining and using a sample (ill-defined and unforeseeable as well as a breach of the principle of proportionality) so that the admission into evidence of DNA material drawn from that unlawfully obtained sample rendered his trial unfair. He added, under Article 6 § 2 specifically, that the police ruse to circumvent the 1990 Act breached his right against self-incrimination. Secondly, he complained under Article 8 that the collection, retention and use of the sample were interferences with his right to respect for his private life which were neither “in accordance with the law” (not accessible or foreseeable and arbitrary) nor proportionate (blanket powers of indefinite retention). Finally, he invoked, without more, Article 13 of the Convention.

THE LAW

28. The applicant invoked Articles 6, 8 and 13 about the taking, retention and use of a blood sample provided by him in police custody.

A. Article 8, alone and in conjunction with Article 13 of the Convention

29. The Court has first examined his complaint under Article 8 alone and in conjunction with Article 13 of the Convention. Those Articles read, in so far as relevant, as follows:

“8.1. Everyone has the right to respect for his private ... life, ....

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime... or for the protection of the rights and freedoms of others.”

“13. Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ....”

30. The applicant argued that the interferences with his right to respect for his private life (the collection, retention and use of the blood sample) were not “in accordance with the law” since the legal basis for same was inaccessible (the 1995 circular of the DPP was confidential) and unforeseeable. The absence of a statutory power founded a violation of this aspect of Article 8 in P.G. and J.H. v. the United Kingdom (no. 44787/98, § 62, ECHR 2001‑IX). While the 1990 Act existed, the point was that the police had been able to circumvent it. Moreover, a blanket power of indefinite retention of samples was a disproportionate interference with his right to respect for his private life (S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, ECHR 2008).

31. The Court recalls that the rule of exhaustion of domestic remedies in Article 35 § 1 requires applicants to use the remedies provided by the national legal system thus dispensing States from answering before this Court for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption - reflected in Article 13 of the Convention with which Article 35 § 1 has close affinity - that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems’ safeguarding of human rights. An effective remedy is one available in theory and in practice at the relevant time namely, one that is accessible, capable of providing redress in respect of the applicant’s complaints and offering reasonable prospects of success. Article 35 must also be applied to reflect the practical realities of the applicant’s position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention. However, the Court has consistently held that mere doubts as to the prospects of success of national remedies do not absolve an applicant from the obligation to exhaust those remedies (D. v. Ireland (dec.), no. 26499/02, §§ 83-84, 27 June 2006; X. v. Ireland (dec.), no. 14079/04, §§ 23-24, 15 December 2009; and further references therein).

32. It is, in addition, an established principle that, in a legal system providing constitutional protection for fundamental rights, it is incumbent on the aggrieved individual to test the extent of that protection (Mirazović v. Bosnia and Herzegovina (dec.), no. 13628/03, 16 May 2006; and Vinčić and Others v. Serbia, nos. 44698/06 et seq., § 51, 1 December 2009) and, in a common law system, to allow the domestic courts to develop those rights by way of interpretation. A declaratory action before the High Court, with a possibility of an appeal to the Supreme Court, constitutes the most appropriate method under Irish law of seeking to assert and vindicate constitutional rights (see, in general, D. v. Ireland, cited above, with further references therein).

33. In the present case, it was open to the applicant to initiate a declaratory action, combined with an action for damages, before the High Court in order to assert his constitutional right to privacy. In so doing, he would have enabled the national courts to consider - as an issue distinct from the question of fairness of trial - whether the taking, retention and use of the blood sample under the common law breached his right to respect for his private life (including bodily integrity) contrary to the rights guaranteed by Article 40.3.2 of the Constitution and to award him compensation if he were successful in that regard. The applicant has not explained why he did not attempt to do so.

34. In addition, he could have alleged at trial and in the context of his appeal to the CCA, that the failure to take the sample under the Act constituted, in itself, a breach of his constitutional right to privacy. However, the applicant failed to raise properly the relevant question in that appeal. While two of the 21 grounds of appeal to the CCA referred to the applicant’s constitutional right to privacy and to bodily integrity (paragraph 8 above), they were based on legal and factual premises both of which were rejected as unfounded by the CCA so that the constitutional aspect of those grounds became moot.

35. Furthermore, and even assuming that he could have properly pleaded a breach of his constitutional rights before the Supreme Court under section 29 of the 1924 Act, the applicant did not submit written pleadings founding his request to the CCA to certify a question for the Supreme Court under that provision so he has not demonstrated that he requested the CCA to certify a relevant constitutional issue for the Supreme Court’s consideration. The text of the question certified, as set out in the judgment of the Supreme Court, did not include any question about a breach of his constitutional rights: rather, it was confined to enquiring whether taking the sample under the common law, as opposed to the 1990 Act, complied with domestic law (paragraph 12 above). The applicant then applied in May 2008 to add grounds of appeal to the certified question and the first two grounds did refer to the applicant’s rights under Articles 15.2.1 and 40.3.1-2 as well as to his constitutional right to bodily integrity. While the Supreme Court appears to have formally admitted all those grounds, the text of the first two indicates that the central concern therein was the admissibility of evidence at trial, as opposed to the accused’s right to respect for his private life, and this was later confirmed in the dissenting judgment (paragraph 16 above). While the applicant’s counsel chose to highlight certain grounds of appeal in his oral pleadings before the Supreme Court (paragraph 15), those issues did not concern the applicant’s constitutional right to privacy.

36. In such circumstances, the Court does not consider that the applicant has demonstrated that he took the necessary steps to exhaust effective domestic remedies on the question of whether the taking, retention and use of the blood sample under the common law breached his right to respect for his private life (including his bodily integrity) contrary to the personal rights guaranteed by Article 40.3.2 of the Constitution. While an applicant is not obliged to exhaust every possible remedy, he or she must demonstrate that some steps were taken to raise the core complaint before the domestic courts. Whilst the applicant’s complaints concerning the fairness of his trial were clearly raised at three levels, the same cannot be said of his complaint in respect of Article 8. Having regard to the importance of the constitutional remedy in a common law system and of the matter at issue for the criminal law, the applicant could reasonably have been expected to have taken steps towards resolving the question of whether the matters now invoked under Article 8 constituted a breach of his constitutional rights (D. v. Ireland (dec.), cited above, § 102).

37. Consequently, his complaints under Article 8, as well as the related complaint under Article 13 of the Convention, must be rejected under Article 35 §§ 1 and 4 of the Convention on the grounds of a failure to exhaust domestic remedies.

B. Article 6 of the Convention

38. Article 6, in so far as relevant, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time ... by [a] ... tribunal ...”

39. The applicant complained under Article 6 that the domestic legal position, which provided two legal bases from which the police could choose to request the blood sample, rendered his trial unfair. Although he also invoked Article 13, Article 6 is the lex specialis in this respect and the Court will therefore examine this complaint only under the latter provision.

40. He mainly complained that this dual approach was so inaccessible, opaque and unforeseeable as to be unfair. He was not told about the two legal bases, he was unaware of their existence or of the consequences of each and he could not regulate his conduct accordingly so that, notably, his consent was not fully informed. The 1990 Act was designed to ensure that consent was fully informed and to clarify the precise framework for taking, retaining and destroying samples. However, he claimed that the confidential circular of the DPP of 1995 ensured that the 1990 Act could be avoided by the police with the alleged objectives of: avoiding the need to destroy the sample within six months as provided (at the time) by the 1990 Act and the related need to expedite his trial; using the sample to investigate offences other than the one of 1989 for which he was initially arrested; and obtaining the sample without legal advice or fully informed consent. It was absurd, he argued, that the legislature would legislate for obtaining a sample by consent from a person in custody and for the police to be able to avoid that statute. This dual approach also violated the principle of proportionality which applied to Article 6 § 1 (Osman v. the United Kingdom, 28 October 1998, § 147, Reports 1998‑VIII).

Consequently, the sample was retrieved unlawfully and the admission of the DNA taken therefrom was unfair. Compliance with the law was of the utmost importance for a criminal trial (the dissenting judgments in Khan v. the United Kingdom, no. 35394/97, ECHR 2000‑V and in Schenk v. Switzerland, 12 July 1988, Series A no. 140). In addition, if the 1990 Act had applied, the sample would have had to have been destroyed within 6 months of being taken and, thus, before his trial began which would have made the prosecution unsustainable.

41. He also complained under Article 6 § 2 that the ruse of the police to circumvent the 1990 Act contravened his right against self-incrimination.

42. The Court is invited to examine whether, assuming that the sample was not obtained “in accordance with the law” within the meaning of Article 8, the applicant’s trial was unfair and in breach of Article 6 of the Convention.

43. The Court reiterates that its duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting Parties. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law. It is not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, unlawfully obtained evidence – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of any alleged “Convention unlawfulness” and, where violation of another Convention right is concerned or alleged, the nature of that violation (Schenk v. Switzerland, §§ 45-46; Khan v. the United Kingdom, § 34; and P.G. and J.H. v. the United Kingdom, § 76, all cited above). Neither is it the Court’s function to deal with errors of fact allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention and unless that domestic assessment is manifestly arbitrary (Kononov v. Latvia [GC], no. 36376/04, § 189, ECHR 2010).

44. The Court also recalls that the question of whether the use as evidence of information obtained in violation of Article 8 rendered a trial as a whole unfair contrary to Article 6 has to be determined with regard to all the circumstances of the case, including, respect for the applicant’s defence rights and the quality and importance of the evidence in question (Khan, cited above, §§ 35-40; P.G. and J.H. v. the United Kingdom, cited above, §§ 77-79; Bykov v. Russia [GC], no. 4378/02, §§ 94-98, ECHR 2009-...; and Gäfgen v. Germany [GC], no. 22978/05, § 165, ECHR 2010, in which no violation of Article 6 was found).

45. The central question is whether the proceedings as a whole were fair having regard to the admission into evidence of the DNA profiling material drawn from the blood sample.

46. The Court notes, at the outset, that the contested DNA evidence was central to the applicant’s conviction. However, this does not, of itself, mean that his trial was unfair because the relevance of the existence of evidence, other than the contested matter, depends on all of the circumstances of the case (Khan v. the United Kingdom, cited above, § 37).

47. Where the relevant contested evidence is acknowledged to be very strong and where there was no risk of it being unreliable, the need for supporting evidence is correspondingly weaker (Khan v. the United Kingdom, cited above, § 37). For example, in the Khan case, where the contested evidence (recordings from covert devices) was the only evidence against the accused, the Court was able to conclude in the circumstances of that case that the proceedings were, as a whole, fair.

48. As in Schenk, Khan and P.G. and J.H., the present applicant had ample opportunity to challenge both the authenticity and the fairness of the later admission into evidence of the sample and the DNA profile material drawn therefrom. Had the national courts considered that the admission of the DNA evidence would have given rise to substantive unfairness, they had the power to exclude it. While the applicant did not challenge the authenticity of the evidence at all, he contested the fairness of its admission on two grounds: that it was unlawful in domestic law and that he had not been properly cautioned.

As to the first ground, the impugned police action was not unlawful in the sense of being contrary to domestic criminal law (as was the case in Khan and P.G. and J.H.). As the judgments of the CCA and the Supreme Court made clear, obtaining a voluntary blood sample from a person in custody formed part of the evidence gathering role of the police in a criminal investigation which had been long recognised by the common law.

As to the caution given to the applicant, during the preliminary hearing the trial judge heard a number of witnesses (the applicant, various police officers as well as the doctor) and he examined the statement signed by the applicant while in custody. The trial judge found as follows. It was not disputed that the applicant had been told that he was being arrested on suspicion of having committed the offence of rape against the complainant in her home in 1989. There was also uncontested evidence that he was also informed by the police that they had information that he was involved in other sexual offences against the same complainant. The applicant was then given the appropriate caution, which he had understood. The caution was to the effect that he was not obliged to give any sample and that, if he did, any tests carried out on the blood sample might be admitted in evidence against him. The applicant then volunteered to provide the blood sample. While the applicant argued that his consent was not fully “informed” because of the “ruse” to avoid the 1990 Act, the Court notes that he did not claim that he was refused access to a solicitor before he so consented. Indeed, having consulted his solicitor he signed a statement acknowledging that he had volunteered the blood sample following a proper caution. More generally, in so far as he claims that he was ignorant of the different legal bases for taking the sample and their consequences, the Court notes that he was at all relevant times legally represented and assisted by a lawyer.

Finally, it is noted that those findings of fact by the trial court were later reviewed and adopted by the CCA. As indicated above, it is not the Court’s function to deal with errors of fact allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention and unless that domestic assessment is manifestly arbitrary (paragraph 43 above). There is nothing that suggests that the above findings of fact were in any way arbitrary.

49. The principle of proportionality as outlined in the Osman case, on which the applicant relied, concerned compliance with Article 6 of limitations on the right of access to a court which is not an issue in this case. As to his suggestion that the blood sample would have been destroyed before his trial had it been collected under the 1990 Act, the relevant point is that there is no indication that the reliability of the blood sample or of the resulting DNA material was in any way undermined by the delay before trial. In so far as the applicant complained about the length of the criminal proceedings, his prior application in that regards was settled and struck out of the Court’s list of cases (Boyce v. Ireland, no. 23663/06, (dec.) 6 May 2008).

50. Finally, and as to the applicant’s complaint that the “ruse” used by the police to obtain the sample infringed the privilege against self-incrimination, the Court has previously found that that privilege does not apply to blood or other physical or objective specimens used in forensic analysis (Saunders v. the United Kingdom, 17 December 1996, § 69, Reports 1996‑VI; J.B. v. Switzerland, no. 31827/96, § 68, ECHR 2001‑III; and P.G. and J.H., cited above, § 80)

51. Accordingly, the Court finds that, whether or not taking, retaining and using the blood sample would amount to a violation of the “in accordance with the law” aspect of Article 8, the reliance on the sample and the DNA drawn therefrom during the applicant’s trial did not conflict with the requirements of fairness guaranteed by Article 6 § 1 of the Convention.

52. Having regard to the above, the Court rejects the applicant’s complaints under Article 6 of the Convention as manifestly ill-founded pursuant to Article 35 §§ 3(a) and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Claudia Westerdiek Mark Villiger
Registrar President