S. AND MARPER v. THE UNITED KINGDOM – 30562/04 [2008] ECHR 1581 (4 December 2008)

Last week,the European Court of Human Rights in Strasbourg unanimously decided that the indefinite retention of DNA tissue samples, DNA profiles and fingerprints by the police, even when people are not charged or found not guilty of an alleged crime, is a breach of Article 8 of the European Convention on Human Rights.

The facts were that S was 11 years old when arrested in 2001 and charged with attempted robbery. After a trial he was found not guilty. In the same year, Michael Marper was arested and charged with the harassment of his partner. Therafter his partner decided not to press charges. In each case DNA samples and fingerprints were taken and in each case the police refused to destroy the material relying on section 64 of the Police and Criminal Evidence Act 1984. The police’s refusal to remove the DNA samples and profiles from the National DNA Database (NDNAD) was the subject of a judicial review and subsequent appeals culminating in a judgment from the Appellate Committee of the House of Lords.

Throughout, the applicants’ complaints were that the retention of their fingerprints and DNA samples breached their rights under Article 8 and Article 14 of the European Convention on Human Rights, which protects private life and discrimination respectively. All five judges of the Appellate Committee of the House of Lords dismissed the case and took the view that the retention of fingerprints and DNA samples of persons who had not been convicted did not constitute a breach of Articles 8 and 14 of the Convention. It was only Baroness Hale of Richmond that held the view that the retention of DNA samples, profiles or fingerprints needed to be justified.

The European Court of Human Rights stated:

“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 a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society. This conclusion obviates the need for the Court to consider the applicants’ criticism regarding the adequacy of certain particular safeguards, such as too broad an access to the personal data concerned and insufficient protection against the misuse or abuse of such data.

Accordingly, there has been a violation of Article 8 of the Convention in the present case.”

This judgment has wide-ranging implications. According to the figures published by the Nuffield Council on Bioethics – The Forensic use of Bioinformation: Ethical Issues – as at November 2006, 7% of profiles on the NDNAD were from Afro-Caribbean individuals, compared with the 3% proportion of Afro-Caribbeans in the general population; figures from June 2007 suggest that a 1/3rd of young black males are on the NDNAD, as compared with 1/8th of young white males; in London, 55% of the total number of innocent people on the NDNAD are black or Asian, while 29% of the London population are black or Asian ; and a high percentage of the people on the NDNAD represent children under the age of 18, which is probably due to police targets being set to tackle low-level crime of which children make up the majority of offenders.

Now that the ECtHR has ruled in this way, it is clear that the UK government’s current policy also breaches the Human Rights Act 1998 and must be changed. It will be very interesting to see when and exactly what steps are taken by the UK government in response. A good start would of course be for the government to destroy the DNA samples, profiles and fingerprints of those persons currently on the NDNAD who have neither been charged or convicted of any crime.