Mon, 07 May 2007

Forensic use of bioinformation and human rights

Justice's response to the consultation on the ethical issues in the forensic use of bioinformation conducted by the Nuffield Council on Bioethics provides some interesting insights regarding the compatibility of current policies with human rights laws.


The current criteria for the collection and retention of bioinformation by police are wholly disproportionate to the needs of law enforcement. In particular, the retention of DNA samples of persons either not charged or subsequently acquitted appears to us a gross interference with the right to personal privacy. We note that this view is at odds with the 2004 judgement of the House of Lords in R v Chief Constable of South Yorkshire (ex parte S and Marper),[2004] UKHL 39. in which the House concluded that the retention of DNA samples of persons arrested but not subsequently convicted did not interfere with the right to respect for personal privacy under Article 8(1) of the European Convention on Human Rights, and – even if it did – was a legitimate restriction under Article 8(2). With respect, however, we consider the decision of the House in Marper to be deeply flawed. We further predict that it is unlikely to be upheld by the European Court of Human Rights on appeal for the following reasons.

Here's Article 8 of the ECHR:
Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

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 in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Justice's response highlights the amount of medical information contained in an individual DNA sample as opposed in fingerprints and photographs. That recent case law from the European Court shows that retention by the police of personal information can plainly amount to an interference with the right to respect for personal privacy under Article 8(1), and this should apply to Police retention of DNA samples. And, that retention of DNA samples of persons suspected, but not subsequently convicted, of an offence to breach Article 8(2) on the basis that such retention is unnecessary and disproportionate.

Justice also points out a potential breach of Article 6(2), the right to a fair trial.

Thus, while the legitimate interest in the prevention and detection of crime may justify the retention of DNA profiles of those proven guilty and charged, it cannot serve as a justification of the indefinite retention of DNA of individuals who are by law presumed to be innocent.Article 6(2) ECHR.

Here's Article 6:

Right to a fair trial


2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.


A legal challenge which will determine whether fingerprints and DNA samples taken from people who have been acquitted of crimes can be kept by the police has been given the go ahead for consideration in the European Court of Human Rights.

Michael Marper and S (a juvenile), the two cases included in the challenge, requested their fingerprints and DNA samples to be destroyed – but the requests were refused by South Yorkshire police. They both argued that the retention of fingerprints and especially DNA samples amounts to an unjustified breach of their right to respect for private life protected by Article 8 of the European Convention on Human Rights (ECHR). The applicants also submitted they were subject to discriminatory treatment (Article 14) as compared to others in an analogous situation, namely other unconvicted persons and those whose samples had still to be destroyed under the legislation. ([2007] EHCR 110)

You have until 2007-05-31 to sign the petition asking the Prime Minister to legislate to require all UK Police forces to delete DNA data from persons not convicted of an offence.

Links to my response to the consultation and other useful resources on the NDNAD can be found in Should the Police keep your DNA forever?

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