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 Chamber 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. However, due to the change in government in May 2010, it will not be implemented. Instead, the Coalition Government proposed a new Protection of Freedoms Bill to bring the law in England and Wales into line with Scotland. This was finally adopted in May 2012 as the Protection of Freedoms Act and will be implemented by the end of 2013.
In May 2011, the Supreme Court made a declaration that that old Association of Chief Police Officer (ACPO) guidelines on the retention of DNA, fingerprints and Police National Computer (PNC) records are unlawful because they are incompatible with the European Convention on Human Rights.
Recent Articles
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Crime and Security Act 2010
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Notes that a number of important questions remain as to how the revised proposals take into account the gravity of the offence with which the individual was originally suspected, and the interests deriving from the presumption of innocence. Notes that further information is also necessary as regards the institution of an independent review of the justification for retention in individual cases.
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Concludes that the Home Office proposal for the automatic destruction of DNA samples "appears to reflect the terms of the judgment", but that its proposals to retain DNA profiles after arrest do not conform to the requirement for proportionality or meet the requirements of the judgment with respect to children. The Committee also criticises the lack of an independent review of the justification of the retention of individuals' DNA profiles, and the poor quality of the scientific evidence provided by the Home Office.
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The Guardian: Home Office climbs down over keeping DNA records of innocent (19th October 2009)
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7th September 2009 -
Regarding the Home Office's consultation proposals, George Annas concludes: "The proposal to destroy all DNA samples is stunning, goes well beyond the ruling, and is to be applauded. The 6- and 12-year retention times, on the other hand, seem excessive, and they may be reduced further depending on public reaction".
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House of Lords Constitution Committee: Policing and Crime Bill (2nd July 2009)
States that: "It is in our view wholly unacceptable that the important matter of retention of samples is to be dealt with by delegated legislation".
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Lords' Delegated Powers and Regulatory Reform Committee: Policing and Crime Bill (12th June 2009)
States that "the Committee considers that provision about this important and complex subject should be in primary legislation, giving the usual opportunity for detailed scrutiny by Parliament".
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in 2009GeneWatch PR: Home Office drags its feet on DNA database removals (7th May 2009)
6th May 2009 -
27th April 2009 -
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Joint Committee on Human Rights: Legislative Scrutiny: Policing and Crime Bill (31st March 2009)
The Committee is "alarmed that the substance of these proposals will not be contained in primary legislation, subject to the usual scrutiny by both Houses".
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4th December 2008 -
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27th February 2008