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    European Court of Human Rights: Keeping Innocent Individuals’ DNA in Criminal Database Violates Human Rights

    The European Court of Human Rights today ruled (pdf) unanimously that retaining innocent individuals’ genetic data in the UK National DNA Database was a violation of human rights, specifically “the right to respect for his private and family life” set out in Article 8 of the European Convention on Human Rights (pdf). The decision affects individuals age 10 or older who have been acquitted or had charges against them dropped after their arrest in England, Wales, or Northern Ireland.

    As of September 2008, the UK National DNA Database contained genetic profiles and linked DNA samples from 4.5 million individuals. As of March 2008, “857,366 people on the National DNA Database did not have a current criminal record,” according to a UK official.

    The Court noted that DNA evidence is useful for criminal investigations. However, “the protection afforded by Article 8 of the Convention would be unacceptably weakened if the use of modern scientific techniques in the criminal-justice system were allowed at any cost and without carefully balancing the potential benefits of the extensive use of such techniques against important private-life interests.”

    The Court said it was: 

    struck by the blanket and indiscriminate nature of the power of retention in England and Wales. The material may 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; fingerprints and samples may be taken – and retained – from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time-limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database or the materials destroyed (see paragraph 35 above); in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances. 

    The Court also rejected the government’s argument that “the retention could not be considered as having any direct or significant effect on the applicants unless matches in the database were to implicate them in the commission of offences on a future occasion.” The Court said it “reiterates that the mere retention and storing of personal data by public authorities, however obtained, are to be regarded as having direct impact on the private-life interest of an individual concerned, irrespective of whether subsequent use is made of the data.

    Of particular concern to the Court “is the risk of stigmatisation, stemming from the fact that persons in the position of the applicants, who have not been convicted of any offence and are entitled to the presumption of innocence, are treated in the same way as convicted persons.” 

    The Court published a press release (pdf) on the case, S. and Marper v. United Kingdom. Background on the case is available at GeneWatch UK, which provided expert evidence in the case on behalf of S. and Marper. Media reports about the case can be found here.

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