The landmark ruling is expected to force a policy change in
England, Wales and Northern Ireland where police retain
indefinitely the fingerprints, cellular samples and DNA profiles of
people suspected but not convicted of crimes.
Approximately 4.5 million samples are currently stored on the
UK's DNA database. More than 850,000 of these samples are from
people with no criminal record, according to reports.
A more restricted policy applies in Scotland, an approach that
may become a blueprint for UK policing after today's ruling.
The background
The case was brought by Michael Marper, 45, and a 19-year-old
man identified only as S, both of whom live in Sheffield.
In 2001, Marper was arrested and charged with harassing his
partner. His fingerprints and DNA samples were also taken. The
charges were dropped following reconciliation with his partner and,
within three months, the case against him was discontinued.
The same year, S was arrested and charged with attempted
robbery. His fingerprints and DNA samples were taken. He was aged
11 at the time. S was acquitted five months later.
Marper and S requested that their fingerprints, DNA samples and
profiles be destroyed. The police refused their requests and they
went to court citing a breach of the Human Rights Act. The High
Court, the Court of Appeal and the House of Lords found no such
breach.
Today the Grand Chamber of 17 judges of the European Court of
Human Rights (ECHR) ruled in favour of S and Marper.
The ruling
The ECHR found that the retention of cellular samples,
fingerprints and DNA profiles constitutes an interference with the
right to respect for private life enshrined in Article 8 of the
European Convention on Human Rights.
It dismissed the UK Government's argument that the interference
was necessary and proportionate for the prevention of crime or
disorder and/or the protection of the rights and freedoms of
others.
"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," wrote the judges.
They rejected the Government's argument that comparison with
other states is unimportant because the UK "is in the vanguard of
the development of the use of DNA samples in the detection of
crime".
The UK had said that other states have "not yet achieved the
same maturity in terms of the size and resources of DNA databases."
But the ECHR said that the Government had a special duty for that
reason.
"The Court considers that any State claiming a pioneer role in
the development of new technologies bears special responsibility
for striking the right balance in this regard," it said.
The court accepted that the database has helped to detect crime.
"The question, however, remains whether such retention is
proportionate and strikes a fair balance between the competing
public and private interests," it wrote. "In this respect, the
Court is struck by the blanket and indiscriminate nature of the
power of retention in England and Wales."
"The material may be retained irrespective of the nature or
gravity of the offence with which the individual was originally
suspected or of the age of the suspected offender; fingerprints and
samples may be taken – and retained – from a person of any age,
arrested in connection with a recordable offence, which includes
minor or non-imprisonable offences," it wrote.
It noted that the material is also retained indefinitely.
"Moreover, there exist only limited possibilities for an acquitted
individual to have the data removed from the nationwide database or
the materials destroyed," said the Court.
The Government had argued that its retention has no direct or
significant effect on individuals unless matches in the database
implicate them in a crime. The Court disagreed.
"Of particular concern in the present context is 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," it wrote.
It said that the retention of children's data following
acquittal could be especially harmful, "given their special
situation and the importance of their development and integration
in society."
"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," it wrote.
"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."
"Accordingly, there has been a violation of Article 8 of the
Convention in the present case," it wrote.
The court did not tell the Government how to achieve compliance
with the Convention. One possibility is for the approach taken by
police in Scotland to be applied across the UK.
Under Scotland's Criminal Procedure Act, DNA samples and
resulting profiles must be destroyed if the individual is not
convicted or is granted an absolute discharge. However, biological
samples and profiles may be retained for three years where the
arrestee is suspected of certain sexual or violent offences even if
the person is not convicted. Thereafter, samples and information
are required to be destroyed unless a Chief Constable applies to a
Sheriff for a two-year extension.
That compromise appeared to win favour in the ECHR.
The ECHR said Scotland's position was "notably consistent" with
a Council of Europe recommendation on the use of DNA analysis in
member states' criminal justice systems. That recommendation
"stresses the need for an approach which discriminates between
different kinds of cases and for the application of strictly
defined storage periods for data, even in more serious cases,"
noted the Court.
S and Marper had sought compensation of £5,000 each. The Court
rejected these claims, saying it "considers that the finding of a
violation, with the consequences which will ensue for the future,
may be regarded as constituting sufficient just satisfaction".
They were awarded legal costs of €42,000 plus interest.
