Tue, 25 Dec 2007

National DNA Database breaches Articles 8 and 14 of the ECHR

On 2007-01-16, the European Convention on Human Rights (ECHR) declared a challenge in ‘S’ and MARPER -v- THE UNITED KINGDOM, which may determine whether fingerprints and DNA samples taken from people who have been acquitted of crimes can be kept by the police, to be admissible and invited the parties to submit additional observations.

Below is the conclusion from the Response to questions posed by the Court upon the issue of its decision on admissibility and further submissions (31 pages). It states that the Court declares a violation of Article 8 (Right to respect for private and family life) and Article 14 (Prohibition of discrimination) of the Convention. It is dated 2007-03-15 and has just been republished by Statewatch.

A decision is expected in February 2008.


100. Both the retention and use of the fingerprints, DNA profiles and DNA samples of innocent persons, which PACE now allows, is a significant interference with the rights of such individuals under Article 8(1) of the European Convention on Human Rights. The information gathered and retained is far more intimate and intrusive than was recognised by the domestic courts; the creation of a record on the PNC, and resulting access to that record by a wide range of public authorities for a wide range of purposes, was not understood in the domestic courts; and the domestic courts failed to appreciate the distinction between DNA samples and DNA profiles.

101. Retention of such information is a fresh invasion of Art. 8 ECHR interests and must be subjected to fresh Art. 8(2) analysis. The Canadian approach to s. 8 of the Charter (the protective mantle only applies while the original justification for the taking of the material is still active) and the German Constitutional Court approach, applying proportionality analysis to each separate privacy invasion, are to be preferred over the approach of the domestic courts in S and Marper.

102. The interference in this case is not justified under Article 8(2) of the Convention because it is disproportionate to the legitimate aims being pursued. R (92) 1 and its explanatory memorandum (as analysed above) support this submission.

103. In addition, even if the Court accepts the government's claim that there are legitimate reasons for retention, the state must also justify rejecting the available 'less restrictive means' of achieving that objective, in particular the more privacy-friendly systems proposed by the Information Commissioner's Office (see exhibit).

104. In assessing whether the UK's approach is within its 'margin of appreciation' regard should be had to the fact that the UK's approach to both DNA databases and fingerprint databases is far more intrusive than that of any other Council of Europe or common law country worldwide. The UK is severely out of kilter with the approach in other democratic systems. Within Europe, the NDNAD of England and Wales is 800% larger than its closest rival in size, Germany's national database.

105. Not only does no other country in the world have a database on the scale of NDNAD or NAFIS, neither does any other country in the world treat its innocent citizens who have previously been incorrectly suspected of involvement in an offence en masse in the same manner as its convicted criminals. Further, the NDNAD and NAFIS have fewer safeguards than other large systems, and the NDNAD does not have an independent custodian monitoring its use and access to the sensitive information it contains.

106. At the very least, the keeping of DNA samples is unjustified. As they are not currently used for forensic purposes no legitimate purpose is pursued by their retention. Other countries with forensic DNA identification systems either destroy the sample immediately once the profile has been generated (New Zealand, Germany, Sweden, Denmark, the Netherlands) or permit the destruction of the sample at an earlier stage than the destruction of the profile or fingerprint (Australia). No other system worldwide retains DNA samples indefinitely. These systems recognise that the information contained in a DNA sample differs markedly from that contained in a DNA profile or fingerprint.

107. The blanket, permanent retention and open-ended use of personal information through the NDNAD, NAFIS and PNC under the PACE regime is unacceptable, and places the applicants at a permanent disadvantage when compared to those who have never been arrested (not on the relevant databases) and the police themselves (on an alternative database for a limited period of time, and with strong safeguards). It equalises the applicants with convicted criminals and, despite official assurances to the contrary, continues to mark them with the taint of criminality.

108. For the reasons set out above, it is submitted that this application should be allowed and the Court should declare a violation of Article 8 and Article 14 of the Convention.

See also the witness statement of Dr Caoilfhionn Anna Gallagher (97 pages), Council of Europe expert on Articles 8 (Right to respect for private and family life), 10 (Freedom of expression) and 11 (Freedom of assembly and association) of the European Convention on Human Rights (ECHR) and co-author of Blackstone’s Guide to the Human Rights Act 1998.

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