S and Marper v United Kingdom

S and Marper v United Kingdom 30562/04 [2008] ECHR 1581 (4 December 2008)

This case, decided by the European Court of Human Rights, held that holding DNA samples of individuals who are arrested but later acquitted or have the charges against them dropped, is a violation of the right to privacy under the European Convention on Human Rights.

The previous government published proposals to give effect to this judgment in a consultation paper 'Keeping the Right People on the DNA Database' in May 2009. The Commission responded to this consultation, highlighting concerns that the proposals did not adequately address the court's findings and that they were incompatible with the ECHR, particularly in relation to innocent people and children.

The Commission wrote to the Committee of Ministers, highlighting its concerns about the government's proposals to implement the judgment on 1 September 2009.

The Commission also had concerns about ACPO's advice to Chief Constables in July 2009 about retaining DNA from individuals in a similar position to S and Marper.  The Commission wrote to the President of ACPO about this on 19 October 2009.  ACPO declined to amend its advice, suggesting it would be inappropriate to issue new guidance on the use of discretionary police power while political debate is taking place, but gave an assurance that it would issue interim advice in the event that an obvious consensus develops around the guidance being debated.

In November 2009 the government announced that refined proposals for a new DNA retention framework would be contained in primary legislation. The Crime and Security Act  contains some important changes, including the requirement to destroy all DNA samples within 6 months. However, the Commission still has concerns about the extent to which the provisions address the court's judgment. In particular, we do not think that the requirement to retain for 6 years the DNA profiles of individuals who have never been charged, prosecuted or convicted of any offence is proportionately justified. The lack of a mechanism for independent review of decisions on destruction is also cause for concern.

The Commission made a further submission to the Committee of Ministers highlighting these and other points on 17 November 2009.  The Committee of Ministers' preliminary assessment on UK implementation of the judgement questions whether the provisions sufficiently take into account the factors that the court found to be relevant in determining whether the interference with private life can be proportionately justified. In particular, it is not yet satisfied that the government's research provides the 'weighty reasons' required by the court to justify the interference with innocent people's private life. Nor is it satisfied that the provisions address the lack of independent review of the justification for retention according to defined criteria, including factors such as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances.

The Commission made a submission to the Home Affairs Select Committee Inquiry on the DNA database in January 2010. It also provided briefings to MPs during the Bill's passage through parliament.

The Commission's legal team is monitoring a number of individual cases against Chief Constables for refusing to destroy DNA when the person is innocent of the crime for which they have been sampled. 

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