Senior Reporter
derek.achong@guardian.co.tt
The Court of Appeal has ruled that legislation governing the destruction of fingerprint impressions after an accused person is exonerated also applies to citizens who are arrested but never charged.
The decision was handed down by Chief Justice Ronnie Boodoosingh and Appellate Judges Nolan Bereaux and Peter Rajkumar, who considered an appeal from Keston Felix challenging the constitutionality of an amendment to the Police Service Act. The amendment empowered the Trinidad and Tobago Police Service (TTPS) to retain sensitive personal data, including fingerprint impressions.
In February 2021, High Court Judge Margaret Mohammed partially upheld Felix’s case, requiring the TTPS to destroy mugshots and physical measurement records of persons acquitted of criminal offences who no longer had pending matters before the courts. However, she dismissed aspects of his case regarding fingerprint retention, prompting Felix’s appeal.
The appeal panel examined Section 50 of the legislation, which mandates that fingerprint impressions be kept in a national database for a minimum of five years and automatically destroyed 20 years after an accused person is exonerated. The judges upheld the general provisions as constitutional and justifiable.
“While a deliberate legislative policy choice has been made for a legitimate purpose, the Commissioner has a duty to ensure that the informational tool provided to that office is not misused,” Justice Rajkumar said.
However, the court found that individuals who were arrested but never charged were unfairly excluded, violating their constitutional right to privacy.
“There can be no explanation for that other than an inadvertent drafting mistake,” Justice Rajkumar said. Justice Bereaux echoed this view, calling the exclusion “deeply unfair and oppressive.”
“Even if there can be some justification for retaining the fingerprints of someone who was charged but exonerated, there can be no such justification in relation to someone who was never charged,” Justice Bereaux added.
The case arose after Felix was arrested in May 2017 and charged with using insulting language and resisting arrest. Two years later, he was found not guilty of both charges. He argued that retaining his personal information left him vulnerable to potential victimisation by the same officers or their colleagues who had access to his data.
“It is distressing to him that even though he was acquitted of all charges, the police are still able to keep his information. As a free citizen, he feels his privacy has been invaded and wants the personal information destroyed so it cannot be accessed by the TTPS,” Justice Mohammed had said in her ruling.
Her original judgment also found that retention of photographs and physical measurements without a defined period or the Commissioner of Police’s power to destroy them constituted a breach of constitutional rights. This aspect of the ruling was never challenged on appeal.
Although Felix, who was charged but exonerated, will not personally benefit from the Appeal Court’s ruling, his lawyers, led by Lee Merry, SC, were allowed to pursue the appeal. Felix was also represented by Vanita Ramroop, while Stefan Jaikaran and Amrita Ramsook represented the Attorney General’s Office.
