DNA Database – Against Human Rights

European Court of Human Rights - Grand Chamber Judgement 4th December 2008 (Press release)

European Court of Human Rights - Grand Chamber Judgement 4th December 2008 (Press release)

On Thursday 4th December 2008 the ‘European Court of Human Rights’ (ECHR) delivered a Grand Chamber judgement in the case of S. and Marper vs. the United Kingdom. They found that when an individual is arrested and has their DNA sample taken but is not subsequently convicted of the crime or is tried and acquitted, the retention of the DNA sample and DNA profile is a violation of Article 8 (Right to respect for private and family life) of the European Convention on Human Rights.

Please see Bioethicsbytes ‘Give us your DNA’ – Panorama and the BioethicsBytes Extended Commentary ‘Give us your DNA’ – Panorama.

BioethicsBytes Extended Commentary - 'Give us your DNA' - Panorama

BioethicsBytes Extended Commentary - 'Give us your DNA' - Panorama

History of case

Mr Marper born in 1963, was arrested on 13th March 2001 and charged with harassment of his partner. He subsequently had his DNA sample and fingerprints taken. Following reconciliation from his partner the case was discontinued on 14th June 2001.  ‘S’ was arrested and charged with attempted robbery when aged 11 years old. Both his DNA sample and fingerprints were taken, however he was acquitted on 14th June 2001.

Despite neither case proceeding to conviction, the DNA sample, DNA profile and fingerprints of both individuals were legally retained under UK law.

After several attempts in English courts, including a ruling by the Law Lords, both individuals were unsuccessfully in securing the removal of their fingerprints, DNA samples and profiles from the databases. The case of S. and Marper v. The United Kingdomwas therefore lodged with the ECHR on 16th August 2004, and was the subject of a public hearing on 27th February 2008.

Below is a summary of the courts judgement (Quotations taken from ECHR press release):

Considerations by the court:

  • Issue that both the DNA sample and DNA Profile contains very sensitive information about the individual and their relatives. Also the particular use of the information when using it for identification purposes: “The Court noted that cellular samples contained much sensitive information about an individual, including information about his or her health. In addition, samples contained a unique genetic code of great relevance to both the individual concerned and his or her relatives. Given the nature and the amount of personal information contained in cellular samples, their retention per se had to be regarded as interfering with the right to respect for the private lives of the individuals concerned.” “In the Court’s view, the capacity of DNA profiles to provide a means of identifying genetic relationships between individuals was in itself sufficient to conclude that their retention interfered with the right to the private life of those individuals. The possibility created by DNA profiles for drawing inferences about ethnic origin made their retention all the more sensitive and susceptible of affecting the right to private life.” “The Court concluded that the retention of both cellular samples and DNA profiles amounted to an interference with the applicants’ right to respect for their private lives, within the meaning of Article 8 § 1 of the Convention.”
  • Issue that everyone arrested for a recordable offence could have their DNA sample and profile taken and retained on the database with no time-limit and little chance of having it removed: “The Court was struck by the blanket and indiscriminate nature of the power of retention in England and Wales. In particular, the data in question could be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; the retention was not time-limited; and there existed only limited possibilities for an acquitted individual to have the data removed from the nationwide database or to have the materials destroyed.”
  • Issue of  possible stigmatisation caused to the individual by having their DNA sample and profile retained on the database despite not been convicted of an offence and therefore being innocent: “The Court expressed a particular concern at the risk of stigmatisation, stemming from the fact that persons in the position of the applicants, who had not been convicted of any offence and were entitled to the presumption of innocence, were treated in the same way as convicted persons. It was true that the retention of the applicants’ private data could not be equated with the voicing of suspicions. Nonetheless, their perception that they were not being treated as innocent was heightened by the fact that their data were retained indefinitely in the same way as the data of convicted persons, while the data of those who had never been suspected of an offence were required to be destroyed.”
  • Issue that the retention of a DNA sample and profile of a minor could be harmful to ‘their development and integration into society’: “The Court further considered that the retention of unconvicted persons’ data could be especially harmful in the case of minors such as the first applicant, given their special situation and the importance of their development and integration in society. It considered that particular attention had to be paid to the protection of juveniles from any detriment that could result from the retention by the authorities of their private data following acquittals of a criminal offence.”
  • Conclusion: “In conclusion, the Court found 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, failed to strike a fair balance between the competing public and private interests, and that the respondent State had overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention in question constituted a disproportionate interference with the applicants’ right to respect for private life and could not be regarded as necessary in a democratic society. The Court concluded unanimously that there had been a violation of Article 8 in this case.”

Comment

This surprising ruling will have a massive impact on how police in the UK deal with the prevention and detection of crime. The Home Secretary Jacqui Smith has already commented that she was “disappointed” with the ECHR’s decision. This judgement provides up to 850,000 people in England and Wales the opportunity to have their DNA removed from the Police National DNA Database in the UK. These people have had their DNA retained on the database despite not been convicted or have been acquitted of a crime. 

The following BBC news article ‘DNA Database ‘Breach of rights’ provides another summary of the decision. Also please listen to this BBC Radio 4 ‘Today Programme’ 4th December 2008 (08:35 am) – Includes an interview with Tony Lake former Chairman of the Police National DNA Database and look at this BBC News ‘Have your say’ discussion board. Other news articles written about the ECHRs decision by other news agencies: Reuters, Guardian, Sky News and The Times.

‘DNA/Genetic fingerprinting’ can be found at several points in the UK curriculum:

GCSE – AQA Additional Science (4463), AQA Additional Applied Science (4863), AQA Biology (4411), EDEXCEL Unit B1 Science (2101), OCR Additional Applied Science A (J632), OCR Additional Science B (J641), OCR Biology B (J643), WJEC Science (1310), WJEC Applied Science Double Award, WJEC Additional Applied Science.

Alevel – AQA Biology, EDEXCEL Biology, WJEC Biology.

(DJW)

One Response to DNA Database – Against Human Rights

  1. David Willis says:

    On December 16th 2008, the UK government announced plans to change the laws that govern the Police National DNA Database

    Home Secretary’s speech: Protecting rights, protecting society.
    Home Secretary Jacqui Smith delivered this speech to the Intellect Trade Association on December 16, 2008. (Section on DNA about half way down) –
    http://press.homeoffice.gov.uk/Speeches/home-sec-protecting-rights

    Concludes with: “The strengths of the DNA database can only be safeguarded if they enjoy the confidence and trust of the public – and so the changes we will set out in the White Paper will deliver a more proportionate, fair and common sense approach.”

    Also see:

    Home Office Press release – http://press.homeoffice.gov.uk/press-releases/common-sense-standards

    Common sense standards for fighting crime and retaining DNA – 16 December 2008
    The Home Secretary today set out new common sense standards for use of investigatory powers and retention of DNA profiles.

    Careful action needed

    In a wide-ranging speech on the rights of privacy in light of changing and expanding technology, she said the government has to think carefully about how long to retain DNA evidence.

    The government will bring forward proposals for consultation on retention arrangements for DNA samples in a forensics white paper next year including:

    – varying the timescale of retaining DNA evidence based on the seriousness of the offence, and possibly the age of and risk posed by the individual
    – re-examining the retention arrangements for DNA samples
    – ensuring police can retrospectively take samples for a longer period after conviction, and from those convicted overseas

    In addition, the Home Secretary announced that the government will take immediate steps to take the DNA of children under 10 – the age of responsibility – off the database.

    BBC News article – ‘DNA Database rules face shake-up’
    http://news.bbc.co.uk/1/hi/uk_politics/7785495.stm

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