S and Marper v United Kingdom [2008] ECHR 1581 is a case decided by the European Court of Human Rights which held that holding DNA samples of individuals arrested but who are later acquitted or have the charges against them dropped is a violation of the right to privacy under the European Convention on Human Rights.
Facts In England, Wales and Northern Ireland, since 2004, any individual arrested for any recordable offence has had a DNA sample taken and stored as a digital profile in the National DNA Database. Even if the individual was never charged, if criminal proceedings were discontinued, or if the person was later acquitted of any crime, their DNA profile could nevertheless be kept permanently on record. The majority of the Council of Europe member states allow the compulsory taking of fingerprints and DNA samples in the context of criminal proceedings; however the United Kingdom (specifically, England, Wales and Northern Ireland) was the only member state that expressly permitted the systematic and indefinite retention of such DNA profiles. In contrast, DNA samples taken in Scotland when individuals are arrested must be destroyed if the individual is not charged or convicted. The case involved two claimants from Sheffield, England: Mr. S. and Michael Marper. Mr S. was arrested on 19 January 2001 at the age of eleven and charged with attempted robbery. His fingerprints and DNA samples were taken. He was acquitted on 14 June 2001. Michael Marper was arrested on 13 March 2001 and charged with harassment of his partner. His fingerprints and DNA samples were taken. The charge was not pressed because Marper and his partner became reconciled before a pretrial review had taken place.
Procedural history The decision of the European Court of Human Rights overturned judgments favourable to the government from the United Kingdom's House of Lords, Court of Appeal and High Court. Both claimants had asked the Police Chief Constable for the samples of their DNA that had been taken to be destroyed. The Administrative Division of the High Court refused an application for judicial review in 2002 of the decision not to destroy the fingerprints and samples, and this decision was in turn upheld by the Court of Appeal in 2003. That judgment noted that the Police Chief Constable did retain the power to destroy samples in the rare instance in which he was completely satisfied that the individual was free from all suspicion whatsoever, and when the retention of samples had enabled information to be used for the legitimate purpose of combating crime. On appeal to the House of Lords in 2004, Lord Steyn also observed the considerable value of retained fingerprints and samples, and commented on the Criminal Justice and Police Act 2001, in that it had been enacted to replace the previous law which had provided that DNA samples could be destroyed following the acquittal of an accused. However, in Baroness Hale’s observation, later mentioned by the European Court of Human Rights judgment, retention of both fingerprint and DNA data constituted an interference by the State with a person's right to respect for his private life which attracted the protection of Article 8 of the European Convention on Human Rights, and therefore required justification by the state.
Submissions When the matter was before the European Court of Human Rights' Grand Chamber, the non-governmental organizations Liberty and Privacy International were granted permission to file third-party submissions and submitted scientific evidence on the private nature of genetic material and information contained in DNA samples. Liberty stressed that general principles of European human rights law dictated that interference by a member state with an individual's rights under the Convention must be “necessary in a democratic society” and have a legitimate aim to answer a “pressing social need"; even then an identified interference must be proportionate and remains subject to review by the Court (Coster v United Kingdom (2001) 33 EHRR 479)). The applicants stressed that the nature of DNA samples, which included a myriad highly personal data pertaining to an individual's unique identity, susceptibility to certain medical conditions and was linked to genetic information of their relatives, meant that not only the taking of the data, but its storage, retention and constant automatic corroboration against other samples taken from current criminal investigations, caused them to suffer unwanted stigma and adverse psychological consequences. This was especially so in the case of S, as he was a child at the time of having his samples taken and relied on Article 40 of the UN Convention on the Rights of the Child of 1989, which states that it is the right of every child alleged to have infringed a penal law to be treated in a manner consistent with the promotion of the child's dignity and worth, reinforcing the respect for the child's human rights and fundamental freedoms. In response, the United Kingdom submitted that the use of the DNA samples was permitted under the Police and Criminal Evidence Act 1984 and did not fall under the scope of Article 8 of the Convention. According to the United Kingdom's government, retention of the data did not impair the physical or psychological integrity of a person, restrict personal development, inhibit ability to establish personal relationships, or the right of self-determination. The DNA profile was merely a sequence of numbers which provided a means of identifying a person against bodily tissue and was not materially intrusive; the retention of data was a legitimate aim because it assisted in the identification of future offenders.
… excerpt ends here. Continue reading the full article.
