On 4 December 2008, the European Court of Human Rights (ECHR) gave its judgement in the Marper case related to the controversial National DNA Database used by the UK Police for criminal investigations, stating the retention of cellular samples, fingerprints and DNA profiles constitutes an infringement of the right for private life as per Article 8 of the European Convention on Human Rights.
The case was brought to court in 2004 by Michael Marper and a boy called “S” who, in separate, unrelated cases, had been taken their DNA after having been arrested. The charges were dropped in both cases but the UK police refused to destroy the DNA samples of the two individuals on the basis of the British law which allowed the retention of DNA and fingerprints.
ECHR based its decision on Article 8 of the European Convention on Human Rights and decided that the indefinite retention by the UK Government and Police of innocent people’s DNA and fingerprints was illegal. “In conclusion, the Court finds that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.”
The court dismissed all arguments brought by the UK Government, stating that “England, Wales and Northern Ireland appear to be the only jurisdictions within the Council of Europe to allow the indefinite retention of fingerprint and DNA material of any person of any age suspected of any recordable offence”. One of the main concerns expressed by the court was “the risk of stigmatisation, stemming from the fact that persons in the position of the applicants, who have not been convicted of any offence and are entitled to the presumption of innocence, are treated in the same way as convicted persons,” the ruling adding that especially the retention of children’s data following acquittal could be harmful, “given their special situation and the importance of their development and integration in society.”
Following this decision, the UK Government is expected to change its present legislation which allows the police to retain samples of people who are not convicted.
According to reports, there are about 4.5 million samples presently stored in UK DNA database, out of which more than 850 000 are from people with no criminal record. The creation of a DNA database has been questioned by many people. The Information Commissioners Office made a statement last year on this issue warning on the dangers of such a database: “There are significant risks associated with creating a universal database: it would be highly intrusive, and the more information collected about us, the greater the risk of false matches and other mistakes. The potential for technical and human error leading to serious consequences cannot be under estimated.”
Shadow Home Secretary Dominic Grieve also warned on the dangers brought by the fact that the database can be checked by EU member countries against sensitive personal information. “There is a real risk that a disproportionate number of innocent British citizens will be sucked into foreign criminal investigations.”
The House of Lords has passed an amendment to the Counter Terrorism Bill, proposed on 4 November by Baroness Hanham that would force the Government to show to people how they can have their samples removed from the database.
“This amendment would require the Secretary of State to draft and lay before Parliament regulations governing the procedures by which people can discover what information is held about them and under what circumstances a request can be made by them to have samples taken during an investigation by the police destroyed,” said Baroness Hanham.
One possible approach of the UK Government, which would be accepted by ECHR, could be that of Scotland police. According to the Scottish Criminal Procedure Act, an individual’s DNA samples and resulting profile must be destroyed if the individual is not convicted or is granted an absolute discharge. Biological samples and profiles may, however, be retained for three years in case the respective person is suspected of certain sexual or violent offences even if not convicted.
European Court of Human Rights – Grand Chamber Judgement – Case of S. and Marper v. The United Kingdom (4.12.2008)
Innocent Britons ‘may be branded criminals abroad’ after Big Brother databases agreement (15.12.2008)
S. and Michael Marper v. The United Kingdom (DNA Retention) (28.05.2008)
DNA retention policy breaches human rights, rules ECHR (4.12.2008)
Lords demand amendment to help the innocent get DNA off database (6.11.2008)
EDRi-gram: UK DNA database errors raise concerns (5.07.2007)