Retaining DNA samples of innocents persons human rights
The European Court of Human Rights decided that the retention of the DNA profiles of persons arrested for a criminal offence, even where they are not convicted of any offence, breaches their human rights.
In S and Marper v United Kingdom, two Britons whose DNA was retained by police brought the legal challenge, claiming that their inclusion on the National DNA Database continued to cast suspicion on them after they had been cleared of any wrong-doing. The Court found that the police had breached their right to respect for their private life, which is protected by Article 8 of the European Convention on Human Rights.
In particular the Court was concerned that
- the DNA profiles can be retained from anyone who had been arrested for any recordable offence, even trivial or minor offences,
- the profiles can retained irrespective of the age of the suspected offender, so many children have their DNA profile included in the database,
- there is no time limit for how long the profiles are retained, and in practice profiles are normally kept for the rest of the person’s life, and
- an individual who has been acquitted has only very limited possibilities to have the profiles removed from the database.
The Court noted that the retention of genetic materials and of DNA profiles was a serious interference with the individual’s right to respect for his of her private life, and any state that wants to use these techniques in the criminal justice system must ensure that they balance the potential benefits of such techniques against the rights of privacy of the individual. States such as the United Kingdom, who claimed to be world leaders in the use of these techniques, had a special responsibility to ensure that the way these technologies were developed included sufficient safeguards and struck the right balance.
Liberty welcomed the decision, which will now require the UK Government to reconsider its policies under which the DNA of innocent individuals (those who have not been charged or cautioned) is permanently retained by police. However, this judgment does not make the UK law invalid. Nonetheless, if you are one of the 850 000 innocent people whose fingerprints and DNA have been retained by the police, you may wish to write to your local Chief Constable and request that your fingerprints and DNA samples be destroyed, in light of the judgement in S and Marper v UK. However, there is still no guarantee that the Chief Constable will grant your request. It is possible that police forces will try to delay making decisions until the government decides what to do about the law.
