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Police to retain DNA from acquitted suspects

The House of Lords ruled on Thursday that British police should be entitled to indefinitely retain DNA samples from suspects who were later acquitted in court, or whose cases were dropped, dismissing an argument that the retention breaches the right to privacy enshrined in the European Convention on Human Rights.26 Jul 2004

The case, which consolidated two appeals against South Yorkshire Police, concerned the Criminal Justice and Police Act of 2001. This Act amended the earlier Police and Criminal Evidence Act (PACE) and allowed the police to obtain and retain the fingerprints and DNA profiles of suspects who have been charged with an offence. These samples are added to the National DNA database, but can only be used for the investigation or prevention of crime.

The background

The first aspect of the appeal concerned an 11-year-old boy from Sheffield who had been accused of attempted robbery in 2001, but subsequently acquitted. His solicitor had asked that the samples taken by the police be destroyed, but the request had been refused.

The appeal also considered the case of 41-year-old Michael Marper, also from Sheffield, who had been charged with harassment by his partner, only to have the charges dropped once the couple reconciled. Again, Marper's solicitor had requested that the DNA samples taken by the police be destroyed, and again the police had refused.

On both occasions the High Court ruled that the retention by the police of fingerprints and DNA samples of individuals who had been the subject of a criminal investigation but who had not subsequently been convicted of any offence was not incompatible with the Human Rights Act, which requires respect for private life.

An appeal followed, and civil rights group Liberty was allowed to intervene in the case, advising the Court of Appeal that:

"In contrast to fingerprints and DNA profiles, the physical samples which are retained and used under PACE (swabs etc.) and from which DNA is taken, potentially contain very much greater, more personal and detained information about an individual. This may include highly private matters such [as] information about a latent genetic illness, or the birth gender of a transsexual person. It may even reveal behavioural tendencies, or important information about the individual that he does not even know about himself such as the true nature of his familial relationships."

Nevertheless the Court of Appeal upheld the ruling, and on Thursday the House of Lords followed suit, rejecting the appellants' arguments that the retention of the samples breached either their right to a private life or their right not to be discriminated against, as set out in the European Convention on Human Rights (ECHR).

The ruling

According to Lord Steyn, who wrote the leading opinion in the case: "It is of paramount importance that law enforcement agencies should take full advantage of the available techniques of modern technology and forensic science".

He rejected Liberty's fears over the potential misuse of retained samples, explaining that the "trial process ought to weed out such abuses."

In his opinion:

"Liberty's fears of what may happen in the future in the light of the expanding frontiers of science is not relevant in respect of contemporary use of retained samples in connection with the detection and prosecution of crime. If future scientific developments require it, judicial decisions can be made, when the need occurs, to ensure compatibility with the ECHR."

Moreover, said Lord Steyn, the retention of samples did not breach the right to privacy enshrined in the ECHR. Even if it did, "The retention and use of fingerprints and samples in this way does not affect the appellants unless they are implicated in a future crime, by a DNA sample found at the scene."

This sentiment was echoed by Lord Brown of Eaton-Under-Heywood, who wrote in his assenting opinion:

"Given the carefully defined and limited use to which the DNA database is permitted to be put — essentially the detection and prosecution of crime — I find it difficult to understand why anyone should object to the retention of their profile (and sample) on the database once it has lawfully been placed there. The only logical basis I can think of for such an objection is that it will serve to increase the risk of the person's detection in the event of his offending in future."

"The larger the database, the less call there will be to round up the usual suspects. Instead, those amongst the usual suspects who are innocent will at once be exonerated. Were these appellants to succeed in their challenge, the cause of justice would be seriously impeded," he added.

Nor did the retention amount to discrimination in terms of the ECHR. According to Lord Steyn, "The difference in treatment is not analogous to any of the expressly proscribed grounds such as sex, race, gender or religion." The presumption of innocence would still apply to the appellants, even though the police now hold fingerprint and DNA samples belonging to them.

Even if there had been a breach of the right to non-discrimination, said Lord Steyn, this would be justified under the Convention because "the increase in the database of fingerprints and samples promotes the public interest by the detection and prosecution of serious crime and by exculpating the innocent."

Dissenting from the ruling on one issue only, Baroness Hale of Richmond considered that there had been a breach of the right to privacy under the ECHR.

In her opinion, the taking and retention of samples, particularly of DNA – from which a great deal of information about a person's health, looks or attitudes may in the future be found – does constitute "interference by the state in a person's right to respect for his private life".

But, she wrote, "The whole community, as well as the individuals whose samples are collected, benefits from there being as large a database as it is possible to have," and accordingly Baroness Hale also dismissed the appeals.

The Daily Telegraph suggests that the case will be appealed to the European Court of Human Rights.