The Marper case

The case of S. and Marper v. the United Kingdom was about whether the retention of DNA and fingerprints from innocent people is consistent with human rights law. The case was heard in the Grand Camber of the European Court of Human Rights (ECtHR) in Strasbourg on 27th February 2008. The judgment was announced on Thursday 4th December 2008. The Court decided that the retention of S. and Marper's DNA breached human rights law.

Background

The case was brought by the Sheffield-based legal firm Howells, with barristers from Brick Court and Doughty Street Chambers. Information about the case is here. The case involved two people who went to court to get their DNA destroyed, and their records removed from the relevant databases. One was a juvenile (who cannot be named for legal reasons) who was charged with attempted robbery but acquitted. He was aged 11 when he was arrested. The other was an adult, Michael Marper, who was charged with harassment but whose case did not go to court as the charges were dropped.

GeneWatch UK provided expert evidence on behalf of S. and Marper to the European Court.

The judgment

The Court found that there had been a violation of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, stating:

"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"

Key points in the judgment are:

  • Given the nature and the amount of personal information contained in cellular samples, their retention per se must be regarded as interfering with the right to respect for the private lives of the individuals concerned.
  • The DNA profiles' capacity to provide a means of identifying genetic relationships is in itself sufficient to conclude that their retention interferes with the right to the private life of the individuals concerned.
  • In view of the foregoing, the retention of both cellular samples and DNA profiles discloses an interference with the applicants' right to respect for their private lives, within the meaning of Article 8 of the Convention.
  • The retention of fingerprints also constitutes an interference with the right to respect for private life.
  • Other countries have chosen to set limits on the retention and use of such data with a view to achieving a proper balance with the competing interests of preserving respect for private life.
  • Any State claiming a pioneer role in the development of new technologies bears a special responsibility for striking the right balance in this regard.
  • The Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales.
  • Weighty reasons would have to be put forward by the Government before the Court would regard as justified such a difference in treatment of the applicants' private data compared to that of other unconvicted people.
  • The retention of the unconvicted persons' data may be especially harmful in the case of minors, given their special situation and the importance of their development and integration in society.

What happens now?

In April 2010, the Crime and Security Act was adopted in response to the Marper judgment. It allows the retention of innocent people's DNA records and fingerprints for 6 years after arrest. Innocent people's Police National Computer records will continue to be kept indefinitely. However, the DNA samples taken on arrest, which are currently stored in commercial laboratories, will be destroyed once the computerised DNA profiles have been obtained from them.

The new law may still breach the European Convention on Human Rights. The Conservative and Liberal Democrat parties have stated they will go further and remove most innocent people's DNA records from the DNA database straight away, if they win the election.

The Crime and Security Bill will apply to anyone arrested in the future, but it requires the Home Secretary to write an Order before the backlog of samples and records from innocent people who are already on the database begin to be destroyed and removed.

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