When an appeal was made to the House of Lords in 2004 an acknowledgement was made by Lord Steyn regarding the significant worth of retained DNA samples, noting that previous the Criminal Justice and Police Act of 2001 had been put in place to supersede previous legislation which made provision for the destruction of DNA profiles after acquittal. This contrasted with an observation made by Baroness Hale which was mentioned within a judgement made later by the European Court of Human Rights which asserted that such procurement of DNA profiles constituted state interference with a person’s right to respect for their private life.
Third-party submissions were granted for both Liberty and Privacy International (both non-governmental organisations) to file third-party submissions (along with scientific evidence) outlining the private and personal nature of the information contained within DNA samples when the case reached the Grand Chamber of the European Court of Human Rights. Liberty’s argument stressed that to accord with the principles of European human rights law any interference by the state ‘must be necessary in a democratic society’ and legitimately aspire to respond to a ‘pressing social need’.Contention was also made regarding the links between the genetic information of a subject and that of their relatives or any underlying medical issues or conditions, all of which highly personal data pertains to information contained within the DNA profile. The assertion was that the physical taking of such private information, its subsequent storage and automatic corroboration against the samples of the guilty and for the purposes of new criminal investigations caused adverse psychological suffering for the subjects in question. This was made explicit in the case of Mr S. who was a child at the time of his sample being taken. This brought the matter under the reliance of Article 40 of the UN Convention on the Rights of the Child (1989).
The response from the United Kingdom’s government submitted that the manner in which they used DNA sampling was allowed within the remit of PACE (1984) therefore not breaching Article 8 of the European Convention. It was put forward that the DNA profile was nothing more than a sequence of numbers, used for the identification of a person by their bodily tissue and was legitimised (and justified) by its value in capturing future offenders. The government also asserted that the retention of the DNA samples and the resulting data afforded by such did not cause any personal injury, be it psychological or physical, to the subject in question, nor did it restrict their personal development, their right to self-determination, or reduce their capacity to establish personal relationships. The bench (which consisted of seventeen judges) delivered a unanimous verdict that Article 8 had indeed been violated and each of the applicants was awarded €42,000. The applications had also argued that they had suffered harmful psychological handling due to an acquired status, but due to the ruling the court did not go on to consider the claim that to retain DNA in such a manner was also a breach of Article 14 It was also acknowledged that the Retention Guidelines for Nominal Records on the Police National Computer 2006 afforded Scotland to espouse a more rational and proportionate methodology regarding the retention of DNA, asserting that samples should be destroyed if a conviction was not forthcoming or an absolute discharge was granted.
The European Court of Human Rights has developed its body of jurisprudence on the measures which are likely to be considered to exist outside the margin of a state’s appreciation. The determination asserted that whilst there is little or no consensus between its member states as to the importance of a given matter at hand the definition should be made broader. It was made explicit that in the case of Mr. S. and Mr. Marper the state interference regarding the important and personal details of the individuals in question indicated that the margin provided by the UK government was too narrow and the correct balance had not been struck. This was supplemented when the UK Home Office announced a consultation regarding compliance with the ruling in May 2009 (nearly six months after the European court decision). The proposal acknowledged that the practice of taking DNA samples from anyone convicted of a recordable offence would not change (since it was unaffected by the court decision) although the indefinite retention of such data from those who did not fall into this category would not continue, and as such these profiles would be removed from the database after a period of time had elapsed. For those adults who were arrested but not convicted, it was proposed that their profiles would be deleted after a period of 6 years unless the arrest was in connection with serious sexual or violent crime (in which case a period of 12 years would be adhered to before deletion). The retained data of young people who were in a similar situation would be destroyed upon their 18th birthday.
As of the commencement of 2011 the Home Office consultation remained unimplemented. Regulation which was declared as in Breach of Article 8 by Marper was ruled by the Northern Irish High Court to be followed in spite of the outcome of the case and that is was governmental responsibility to change the law, despite the court’s prerogative to declare the incompatibility of such DNA retention with the European Convention of Human Rights.
An attempt was made in February of 2011 to comply with the Marper ruling when the Protection of Freedoms Bill was announce by the government, which sought to limit the scope of the NDNAD by confirming that those who were arrested or charged with minor offences would have their DNA profiles destroyed if they were not convicted. It also claimed that the majority of the people already on file who had been arrested but not convicted would have their profiles removed from the NDNAD shortly after it became law.
Since the Protection of Freedoms Bill was announced the UK government has indicated that the destruction of the DNA of the innocent would be an impossibility due to the storage of the records ‘alongside the DNA of the guilty’, and minister for the Home Office, James Brokenshire admitted that the profiles would be held by forensic science laboratories although the samples retained would be ‘anonymised’. The samples will however retain barcodes linking them back to the individual in question.Without knowledge of the logistical structure of the NDNAD these latest claims seem conveniently difficult to disprove, removing much of the credibility of the government’s latest measures on dealing with this issue. Whilst trying to remain objective about the current administration’s lack of follow through regarding this matter it seems that in order to adequately protect the rights of those individuals who have had their data collected in such a manner that would contradict Article 8 much greater efforts should be made to destroy these profiles, not just to give the government some credibility but in order to stop future administrations taking advantage of what remains an open-ended issue with great potential for misuse.
arliamentary Office of Science and Technology (POST) 2006 Number 258 ‘The National DNA Database’ <http://www.parliament.uk/documents/post/postpn258.pdf> Accessed 17 December 2011
n contrast to practice in England, Wales and Northern Ireland, Scotland requires that DNA samples must be destroyed if the individual fails to receive a charge or conviction.
r S & Marper v United Kingdom (2008) ECHR 1581
oth claimants were from Sheffield.
he reconciliation occurred prior to the pretrial review.
arper & Anor v Chief Constable of South Yorkshire (2002) EWCA Civ 1275 & Mr S v Chief Constable of South Yorkshire (2002) 1 WLR 3223
egina v Chief Constable of South Yorkshire Police (2004) UKHL 39
aroness Hale confirmed that such a contravention should be justified by the state as it is afforded protection in Article 8 of the European Convention on Human Rights.
n such cases an identified interference remains subject to review by the Court and must be considered proportionate.
oster v United Kingdom (2001) 33 EHRR 479
he article asserts that should any child be alleged of a penal infringement that child should be treated in a manner consistent with the promotion of that child’s dignity and worth whilst reinforcing respect for the child’s human rights and fundamental freedoms.
he Police and Criminal Evidence Act (PACE) (1984)
he breach was the prohibition of discrimination.
xemption in Scottish legislation exists for the authoritative retention of DNA samples should the individual be suspected of certain violent or sexual offences.
his consultation also recommended that the data stored from youths convicted of less serious offences would also be destroyed in such a manner.
lenister L 2011 ‘JR 27′s Application, DNA samples, fingerprints and how the courts are not giving effect to the Human Rights Act’ January 28, 2011 < http://www.lawthink.co.uk/2011/01/dna-samples-fingerprints-courts-not-giving-effect-to-hra> Accessed 17 December 2011
alker B 2011 ‘DNA and fingerprint guidelines ‘unlawful’’ <http://www.bbc.co.uk/news/uk-13440012> Accessed 17 December 2011
he guidelines set out by the Association of Chief Police Officers which allowed the indefinite retention of DNA profiles were deemed unlawful by the UK Supreme Court on the 18th of May, 2011, although took no further action since the government was already legislating on the issue.
immons J 2011 ‘How protection of Freedoms Bill Will Work’ < http://www.bbc.co.uk/news/uk-politics-12536138> Accessed 17 December 2011
hale J 2011 ‘Leading article: DNA: a data disgrace’ <http://www.independent.co.uk/opinion/leading-articles/leading-article-dna-a-data-disgrace-2326351.html> Accessed 17 December 2011
by
louisbrown1980 (student)
