International Law

ECHR judgment on the Marper case - rules that UK Government and Police indefinate retention of innocent people's tissue samples, DNA profiles and fingerprints is illegal

The European Court of Human Rights in Strasbourg has finally published its judgement in the long running Marper case, about the indefinite retention of DNA tissue samples, DNA profiles and fingerprints by the Police, even when people are not charged or found not guilty of an alleged crime.

The ECHR has ruled that the current UK Government policy breaches Article 8 of the European Convention on Human Rights:

58 The applicants complained under Article 8 of the Convention about the retention of their fingerprints, cellular samples and DNA profiles pursuant to section 64 (1A) of the Police and Criminal Evidence Act 1984 ("the PACE"). Article 8 provides, so far as relevant, as follows:

"1. Everyone has the right to respect for his private ... life ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime..."

See the full text of the ECHR Judgment at the British and Irish Legal Information Institute:

S. AND MARPER v. THE UNITED KINGDOM - 30562/04 [2008] ECHR 1581 (4 December 2008)

125 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. 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. This conclusion obviates the need for the Court to consider the applicants' criticism regarding the adequacy of certain particular safeguards, such as too broad an access to the personal data concerned and insufficient protection against the misuse or abuse of such data.

126 Accordingly, there has been a violation of Article 8 of the Convention in the present case.

Now that the ECHR has ruled in this way, it is clear that the current policy also breaches the UK's own Human Rights Act and must be changed.

What will the Labour Government do ?

1. Will they immediately order the destruction of other innocent people's DNA cellular samples, DNA profiles and fingerprints ?

2. Will they apologise to all the innocent people they have unfairly stigmatised in this way and pay them some financial compensation ?

3. Will they sneak in a new law which would allow such samples to be retained for a finite number of years before destruction, rather than, as now, being kept, effectively indefinitely for the rest of your life and beyond ? This already happens in Scotland, and in most of the rest of Europe, without adverse affects on law and order.
   

Although this Marper case relates specifically to the controversial National DNA Database, used by the Police for criminal investigations, that is not the only such DNA database run by the UK Government.

See Counter-terrorism Bill - covert DNA sampling and analysis with no effective safeguards

1. What are the implications for the secret Metropolitan Police Counter Terrorism DNA and Fingerprint databases mentioned in the House of Lords debate on the Counter Terrorism Act 2008 section 18 material not subject to existing statutory restrictions ?

2. How about the copies of innocent people's DNA data and fingerprints being handed over to foreign Governments and agencies, potentially automatically and in bulk, without any realistic safeguards, or error correction mechanism ?

3. What about the retention of "fingerprints and samples" taken from people (including British citizens) who have been subjected to Control Orders under the controversial Prevention of Terrorism Act 2005, none of whom have been actually charged or convicted of a terrorist crime ?

4. What about Home Office Minister Admiral Lord West's plans to allow for the secret collection of DNA cellular tissue samples and fingerprints, e.g. "from a teacup", by informers and undercover agents or by "property interference" state sanctioned burglars, who are not forensically trained or equipped to avoid DNA cross contamination ?

Full post as published by Spy Blog on December 04, 2008 (boomark / email).