Following this decision, the UK Government is expected to change its present legislation which allows the police to retain cellular samples, fingerprints and DNA profiles of people who are not convicted.
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 more than 5 million samples presently
stored in UK DNA database, out of which between 573,639 to 857,366 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.) Correction – This amendment was not adopted in the
end by the UK Parliament. The act was adopted as the Counter Terrorism
Act 2008.
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.
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)
Don't delay: Delete your DNA today(17.12.2008)
EDRi-gram: UK DNA database errors raise concerns (5.07.2007)
Source: EDRI-gram "ECHR decided against the UK DNA Database" Number 6.24, December 17, 2008
