UK: Retention Of DNA Samples Does Not Infringe Genetic Privacy

In September the Court of Appeal confirmed that retention of DNA samples and fingerprint evidence by police, after a suspect has been cleared of the criminal offence for which he had been investigated, is compatible with Articles 8 and 14 of the European Convention on Human Rights ("ECHR"). This decision has raised serious concerns regarding genetic privacy among certain members of the public and community groups.

The police retained DNA samples and fingerprints taken from S, a minor, and Michael Marper, pursuant to s.64 of the Police and Criminal Evidence Act 1984 ("PACE") after S was acquitted and the charges against Marper were dropped. Section 64 of PACE permits retention of fingerprints and samples after they have fulfilled the purpose for which they were taken, provided that such evidence is not used other than for, among other things, purposes related to the prevention or detection of crime.

Counsel for the appellants submitted that:

• retention of fingerprints and other samples from persons in the position of the appellants under s.64 of PACE constituted unjustified interference with their right to respect for their private lives under Article 8(1) of ECHR;
• retention of fingerprints and other samples from persons in the position of the appellants under s.64 of PACE discriminates, without objective justification, between members of a relatively similar class, namely those who have never been suspected of committing a criminal offence and those who have been suspected of or charged with committing a criminal offence, but who are not convicted of such an offence, contrary to Article 14 of ECHR; and
• regardless of whether or not s.64 of PACE is incompatible with Articles 8 and 14 of ECHR, the policy of the Chief Constable of South Yorkshire Police of retaining all fingerprints and DNA samples taken by the South Yorkshire Police was incompatible with Article 8 of ECHR because, among other things, there are no foreseeable criteria in that policy for interfering with the rights granted under Article 8 and it is therefore not in accordance with the law, and it is a blanket policy which constitutes a fetter on the Chief Constable’s discretion.

The Court of Appeal dismissed each of these arguments and upheld the decision of the Divisional Court that s.64 of PACE is not incompatible with Articles 8 or 14 of ECHR. Woolf LCJ, in the major judgement, held as follows:

• While the Court acknowledges that the retention of fingerprints and DNA samples interfered with an individual’s right to respect for his private life, such interference is justified under Article 8(2) of ECHR, as such retention is necessary in the interests of the prevention of disorder or crime. Such retention is necessary because there are not alternative ways of achieving the same benefits for the public, and the adverse consequences to the individual are not out of proportion to the benefits to the public.

• Retention of fingerprints and DNA samples under s.64 of PACE does not discriminate between one category of innocent person and another, contrary to Article 14 of ECHR. Rather, s.64 of PACE creates a proper distinction between people from whom fingerprints and DNA samples have been taken and those from whom such samples have not been taken. It would be highly undesirable and inappropriate to distinguish between different categories of individuals from whom fingerprints or samples had been taken. Further, the discrimination alleged by the appellants is not within one of the categories of discrimination referred to in Article 14 of ECHR.

• The Chief Constable of South Yorkshire Police had exercised the discretion to retain DNA samples and fingerprints under s.64 of PACE for the purpose for which it had been granted (namely, the prevention and detection of crime). Further, his policy of retaining such evidence did provide for exceptions to be made, although the Chief Constable failed initially to make this clear.

The Court found that retention of a DNA sample, rather than just the DNA profile obtained from that sample, is justified by the need to verify the accuracy of the DNA profile, and because developments in relation to DNA may result in the sample being able to be used more effectively for prevention and detection of crime in the future.

The civil liberties and human rights group, Liberty, which had intervened in these proceedings, has issued a statement that it is disturbed by this decision, as it believes that the retention of DNA samples and fingerprints under s.64 of PACE discriminates against individuals who are innocent of crimes but who have been caught up in the criminal justice system, and will result in a disproportionate number of innocent people from ethnic minorities having their details on the DNA database.

This piece is taken from a longer article first published in The Solicitors’ Journal, 1 November 2002 and is reproduced with kind permission.