Communicated on 10 December 2014

FOURTH SECTION
Application no. 17770/10
Ibraima DJALO
against the United Kingdom
lodged on 7 March 2010
STATEMENT OF FACTS
The applicant, Mr Ibraima Djalo, is a British national, who was born in 1976 and lives in Manchester.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was arrested on 5 February 2007 following allegations of sexual assault made against him. His photograph, fingerprints and DNA were taken and retained by the Greater Manchester Police. He was then released on police bail.
In July 2007 the Crown Prosecution Service advised the applicant that no further action would be taken owing to a lack of evidence against him.
On 7 March 2010 the applicant lodged an application against the United Kingdom of Great Britain and Northern Ireland with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).
On 23 August 2013 the Registry requested that the applicant make a Subject Access Request to determine whether his biometric data continued to be held by the United Kingdom authorities.
Further to that Subject Access Request, the Association of Chief Police Officers (“ACPO”) advised by way of letter dated 1 October 2013, that the applicant’s DNA and fingerprints had been destroyed. The information provided showed that the applicant’s fingerprints had been destroyed on 3 May 2007. Whilst no specific date was provided with regard to the destruction of his DNA data, it would appear that destruction would have occurred by 1 October 2013 at the latest. No indication was given as to whether the applicant’s photograph has been retained or destroyed.
B.  Relevant domestic law and practice
1.  Biometric data
The relevant domestic law and practice at the time the applicant’s data was taken is set out in the Court’s judgment in S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, ECHR 2008.
Following that decision and the Court’s subsequent decision in Goggins and Others v. the United Kingdom (striking out), nos. 30089/04, 14449/06, 24968/07, 13870/08, 36363/08, 23499/09, 43852/09 and 64027/09, 19 July 2011, the United Kingdom Government introduced new legislation, the Protection of Freedoms Act 2012, sections 1 to 25 of which created a new regime for the retention of biometric samples and data. All relevant sections of that Act had come into force by 31 October 2013.
2.  Photographs
The policy regarding the retention of photographs is contained in the Management of Police Information Code of Practice and the Management of Police Information guidance and is currently under domestic review. In RMC & Anor, R (on the application of) v Commissioner of Police of the Metropolis & Ors [2012] EWHC 1681 (Admin) (22 June 2012), the High Court found that the policy existing at the time (namely, to apply the Management of Police Information Code of Practice and the Management of Police Information guidance) was unlawful and that its application amounted to an unjustified interference with the right to respect for private life in breach of Article 8. The High Court decided to allow the defendant, the Commissioner of Police of the Metropolis, a “reasonable further period” within which to revise the existing policy but stressed that such a period should be measured in months, not years.
On 14 November 2012 the High Court in R (V) v Commissioner of Police for the City of London [2012] EWHC 3430 (Admin), having been advised that the Association of Chief Police Officers (“ACPO”) is in the process of devising a fresh policy” held that the “reasonable period” referred to in RMC was fast approaching but that it had not yet expired.
Under a Freedom of Information Request, no. 000245/13, ACPO stated that the College of Police and the Home Office were jointly reviewing information management arrangements within the police service and anticipated to report on the issue in April 2014. No such report has been identified.
COMPLAINTS
The applicant complains under Article 8 of the Convention about the retention of his photograph, fingerprints and DNA.

QUESTIONS TO THE PARTIES

1.  In light of well-established case-law of the Court (S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, ECHR 2008), did the retention of the applicant’s biometric data breach Article 8?

2.  What is the current domestic position regarding the destruction of custody photographs in respect of individuals arrested but not charged of an offence?

3.  Does the historical and/or continued retention of the applicant’s photograph constitute a breach of Article 8?