Communicated on 10 December 2014

FOURTH SECTION
Application no. 71358/12
Michael GARE-SIMMONS
against the United Kingdom
lodged on 22 October 2012
STATEMENT OF FACTS
The applicant, Mr Michael Gare-Simmons, is a British national, who was born in London and lives in Gerona, Spain.
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 18 May 2011 on suspicion of sexual assault on an adult male. His DNA and other biometric information were taken and his details were entered on three linked databases. The Police National Database (the “PNC”) recorded his arrest and other personal details. It contained an Arrest Summons Number (“ASN”) which linked the PNC record to the corresponding record on the National DNA Database (which included the applicant’s DNA profile, namely a sequence of numbers derived from a DNA sample which provides a future means of identifying a person against bodily tissue) and to the fingerprint database (known as IDENT1). The applicant was later released without charge.
On 10 December 2011 the applicant wrote to the Lancashire constabulary in relation to his biometric information; however the full details of that letter have not been disclosed to this Court.
In a letter dated 20 February 2012 the Lancashire constabulary advised the applicant that his data would be deleted during the coming months. With regard to photographs, the Lancashire constabulary advised that a national review was on-going and the indications were that custody photographs would be deleted at the same time as other biometric data. All data not otherwise lawfully retained would be deleted by September 2013.
On 22 October 2012 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.
On 4 November 2013 the Association of Chief Police Officers (“ACPO”) provided the applicant with information showing that his fingerprint status was “confirmed” (understood to mean that it remained on record); and that his DNA had been “profiled” (namely that his actual DNA sample had been deleted but that the sequence of identifying numbers obtained from that sample remained on record). His photograph also continued to be held on file.
On 1 October 2014 the Lancashire Constabulary confirmed that the applicant’s biometric data had, as of that date and albeit with some delay, been removed from the PNC. No indication however was given as to whether the applicant’s photograph had 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 sent 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, the United Kingdom Government drafted the Protection of Freedoms Act 2012. The purpose of Sections 1 to 25 of the Act was to create a new regime for the retention of biometric samples and data in order to implement this Court’s decision. All the 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. 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.
COMPLAINT
The applicant complains under Article 8 of the Convention about the retention of his personal details, which he defines as his DNA, finger, thumb and palm prints and photograph on the Police National Computer.

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 with an offence?

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